Resolution No. 10603 , adopting the updated City Investment Policy and a... Page 100 of 953 23 Treasury bills. All securities issued with initial maturities of one year or less are issued as discounted instruments, and are called Treasury bills. The Treasury currently issues three- and six-month T-bills at regular weekly auctions. It also issues “cash management” bills as needed to smooth out cash flows.
Treasury notes. All securities issued with initial maturities of two to ten years are called Treasury notes, and pay interest semi-annually.
Treasury bonds. All securities issued with initial maturities greater than ten years are called Treasury bonds. Like Treasury notes, they pay interest semi-annually.
Volatility. The rate at which security prices change with changes in general economic conditions or the general level of interest rates.
Yield to Maturity. The annualized internal rate of return on an investment which equates the expected cash flows from the investment to its cost.
Resolution No. 10603 , adopting the updated City Investment Policy and a... Page 101 of 953 City of Indio
City Council
August 19, 2026
STAFF REPORT
To: City Council
From: Jonathan Nicks, City Manager
Prepared by: Miguel Peña, Director of Water Utility & Maintenance Subject: Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreement with Pump Check, Inc. in the amount to-not-exceed $28,600 for fiscal year 2026-2027, for a one (1) year term with optional four (4) one (1) year extensions, for a total not to exceed $152,307.00
RECOMMENDATION:
Staff Recommends that the City Council approve a Professional Services agreement with Pump Check Inc. for annual hydraulic pump and meter accuracy testing for a one (1) year term with four (4) optional one (1) year extensions for a total not-to-exceed contract amount of $152,307.
SUMMARY:
On February 4, 2026, the city issued a Request for Proposals (RFP) for Annual Hydraulic Pump and Meter Accuracy Testing for all City of Indio well site facilities. The RFP was posted on the on the city’s website in accordance with the City’s procurement procedures. Proposals were due on February 26, 2026, and the city received one (1) proposal, submitted by Pump Check, Inc.
BACKGROUND INFORMATION:
As part of the annual Hydraulic Pump and Meter Accuracy Testing, the city solicited qualified contractors to perform pump efficiency testing and meter calibration services for the City’s well, booster stations, and water production meters. These services are essential for evaluating system performance, verify measurement accuracy, identify repair or replacement needs, and support compliance with SB-555 for water loss audit reports requirements. The scope includes pump efficiency testing, electronic calibration of meters, and evaluation of performance improvements.
Pump Check Inc.’s cost proposal total incorporates annual price escalation for the optional extensions, in accordance to RFP Section V, Submittal Format, Cost Proposal and Rate Schedule.
Compensation amounts per fiscal year are summarized in Table 1.
Table 1 Compensation Summary
Fiscal Year Amount
2026-2027 28,600.00
2027-2028 29,458.00
2028-2029 30,342.00
2029-2030 31,404.00
2030-2031 32,503.00
AGENDA ITEM #9.5
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Total Not-to-Exceed 152,307.00
Funding is available in the approved operating budget for Fiscal Year 2026-2027 (5506712-523015).
FINANCIAL SUMMARY:
Current FY Financial
Impact:
$28,600 In current year budget: Yes
Current FY General
Fund Impact:
N/A Budget adjustment: No
Next FY Financial
Impact:
N/A Strategic Objective: Public Infrastructure
Source of funds: 5506712-523015 Fund-Org-Object
Reference:
Misc. R&M Services
Additional Financial Details:
N/A
ALTERNATIVES:
N/A
ATTACHMENTS:
Attachment 1 - PSA Annual Hydraulic Pump & Meter Accuracy Testing APPROVAL(S):
Jonathan Nicks, City Manager Approved - 05 Aug 2026
Ruby D. Walla, Director of Finance Approved - 12 Aug 2026 Steven Graham Pacifico, City Attorney Approved - 13 Aug 2026 Jonathan Nicks, City Manager Approved - 13 Aug 2026
Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreem... Page 103 of 953 PROFESSIONAL SERVICES AGREEMENT*
BY AND BETWEEN
THE CITY OF INDIO,
A CALIFORNIA MUNICIPAL CORPORATION
AND
PUMP CHECK INC,
A CALIFORNIA CORPORATION
Form Approved January 7, 2025
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PROFESSIONAL SERVICES AGREEMENT
FOR ANNUAL HYDRAULIC PUMP AND METER ACCURACY TESTING TO BETWEEN THE CITY OF INDIO AND PUMP CHECK INC.
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 19TH day of August, 2026 (“Effective Date”), by and between the CITY OF INDIO (“City”), a California municipal corporation organized as a general law city and PUMP CHECK INC., a California corporation (“Contractor”). For the purposes of this Agreement City and Contractor are sometimes hereinafter referred to as “Party” and collectively referred to as the “Parties.”
RECITALS
1. City has sought by Request for Proposals the performance of pump efficiency testing for City of Indio’s current wells, boosters, water production meters and electronic calibration for water meter services pertaining to the ANNUAL HYDRAULIC PUMP AND METER ACCURACY TESTING, as applicable.
2. Contractor was selected by City to perform those services on the basis of Contractor’s demonstrated competence, professional qualifications and licensure necessary for the satisfactory performance of the services required.
3. Pursuant to the Chapter 33.116 of the Indio Municipal Code, the City has authority to enter into this Agreement.
a. The City Manager has the authority to execute this Agreement [$5000 - $75,000 or less] OR
b. The City Council has the authority to execute this Agreement [over $75,000]
4. The Parties now desire to formalize the selection of Contractor for performance of those services defined and described with particularity in Section 2 “Scope of Services and Schedule of Performance” of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, for and in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT
(a)Subject to the provisions of Section 20 "Termination of Agreement" of this Agreement, the Term of this Agreement shall commence on August 19, 2026, (the “Effective Date”) and continue in effect until the tasks described are completed, but in no event later than June 30, 2027, unless sooner terminated
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or otherwise extended by written agreement of the Parties. All days set out are calendar days.
(b)The City Manager may, in his or her sole discretion, unilaterally exercise an option to extend the term of the Agreement for up to four (4) additional one (1) year terms or agreement on a month-to-month basis following expiration, on the same terms and conditions, including compensation as set forth in Section 4 “Compensation and Method of Payment.”
(c) Contractor acknowledges that the Agreement term may extend over multiple City fiscal years, and that work and compensation under this Agreement is contingent on the City Council appropriating funding for and authorizing such work and compensation for those fiscal years. This Agreement may be terminated by the City Manager at the end of a fiscal year when sufficient funding is not appropriated and authorized for the subsequent fiscal year. City is not obligated to pay Contractor for any amounts not duly appropriated and authorized by City Council.
SECTION 2. SCOPE OF SERVICES, SCHEDULE AND SCHEDULE OF PERFORMANCE (a)SCOPE OF SERVICES. Subject to this Agreement, all addendums and exhibits attached and incorporated hereto, Contractor shall at all times faithfully, competently and to the best of their ability, experience and talent perform the services and tasks set forth in Exhibit “A” “Scope of Services” incorporated as if fully set forth here (hereinafter, the “Services”) and the City agrees to retain and does hereby retain Contractor to provide the Services. (b)SCHEDULE OF PERFORMANCE. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Contractor shall be deemed to be in Default of this Agreement. Thereafter, the City, in its sole discretion, may choose not to enforce Section 21, “Default” of this Agreement and may instead allow Contractor to continue performing the Services.
(c) ADDITIONAL SERVICES. Contractor shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 3. CITY REPRESENTATIVE.
The City’s Director of Water Maintenance and Utility or designee shall represent it in all matters regarding the administration of this agreement, review and approval of
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all products submitted by Contractor, but shall have no authority to enlarge the tasks to be performed.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a)Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed $28,600.00 per fiscal year unless additional compensation is approved in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. Payment shall be made in accordance with City’s usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to City at the address set forth in Section 24, “Notices” hereof. Under no circumstances shall the total amount paid to Contractor under this Agreement exceed the City Manager’s authority under Indio Municipal Code Section 33.116 (C)(2) without prior approval by the City Council.
(b)Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and subcontractor contracts.
Subcontractor charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Exhibit “B” include payment for labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of tasks performed and the amount of time incurred for or allocated to that task. City’s Representative shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, City will use its best efforts to cause Contractor to be paid within forty-five (45) days of receipt of Contractor’s correct and undisputed invoice.
(d)Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
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(e) If this Agreement is extended pursuant to Section 1 “Term of Agreement,” the City shall pay the same rates specified in Exhibit “B” “Compensation.” SECTION 5. RESERVED
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement, Contractor’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
(a) INTELLECTUAL PROPERTY RIGHTS ASSIGNMENT. For no additional compensation, Contractor hereby assigns to City all of Contractor’s rights, title, and interest in and to the content of all deliverable materials created by Contractor or its employees, agents, or subcontractors, including copyrights, in connection with the Services performed under this Agreement. Contractor shall promptly execute and deliver, and shall cause its employees, agents, and subcontractors to promptly execute and deliver, upon request by the City or any of its successors or assigns at any time and without further compensation of any kind, any power of attorney, assignment, application for copyright, patent, trademark or other intellectual property right protection, or other papers or instruments which may be necessary or desirable to fully secure, perfect or otherwise protect to or for the City, its successors and assigns, all right, title and interest in and to the content of the deliverable materials. For purposes of this section deliverable materials includes all works, tangible or not, created under this Agreement including, without limitation, documents, material, data, reports, manuals, specifications, artwork, drawings, sketches, computer programs and databases, schematics, photographs, video and audiovisual recordings, sound recordings, marks, logos, graphic designs, notes, website, domain names, inventions, processes, formulas matters and combinations thereof, and all forms of intellectual property. The provisions of this paragraph are binding on the successors, assigns and heirs of Contractor and shall survive the termination of Contractor’s Services under this Agreement.
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SECTION 7. CONTRACTOR’S BOOKS AND RECORDS.
(a)Contractor shall maintain any and all documents and records demonstrating or relating to Contractor’s performance of the Services. Contractor shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement.
Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Contractor pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures.
(b)Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Contractor’s address indicated for receipt of notices, “Section 24,” of this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Contractor’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors in interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a)Contractor is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Contractor shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City.
(b)The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Contractor
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or any of Contractor’s officers, employees, subcontractors or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatever against or bind City in any manner.
(c) Neither Contractor, nor any of Contractor’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Except for the fees paid to Contractor as provided herein, the City shall not pay salaries, wages or other compensation to Contractor for performing services hereunder. The City shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing services hereunder. Contractor expressly waives any claim Contractor may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE.
Contractor represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services in the same geographic area as are required of Contractor under this Agreement, and shall use such skill, prudence, and diligence as other members of Contractor’s profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Services” that shall also be applicable to Contractor’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Contractor shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances and regulations. Contractor represents and warrants that Contractor has obtained or shall promptly obtain all necessary licenses to perform the Services set forth in this Agreement and that such licenses are in good standing. Contractor further represents and warrants that the services provided herein shall conform to all ordinances, policies and practices of the City. Neither City, nor any elected or appointed boards, officers, officials, employees
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or agents of City, shall be liable, at law or in equity, as a result of any failure of Contractor to comply with this section.
SECTION 11. RESERVED
SECTION 12. NONDISCRIMINATION.
Contractor shall not discriminate, in any way, against any person on the basis of race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement.
SECTION 13. RESERVED
SECTION 14. CONFLICTS OF INTEREST.
(a) Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of the Services. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor. To the extent applicable, Contractor further covenants that it has not contacted with nor is performing any services, directly or indirectly, with any developer or property owner or entity owning property within the City (or a study area) and further covenant and agrees that it shall provide no service or enter into any agreement with any developer or property owner or firm or partnership owning property within the City or the study area prior to completion of work under this Agreement. Contractor further agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City understands and acknowledges that Contractor may be, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties.
Contractor is unaware of any stated position of City relative to such projects.
Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section.
(c) City understands and acknowledges that Contractor may perform non-related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. (d) During the term of this Agreement, Contractor shall complete a Form 700 as determined by the City’s Filing Officer.
(e)Contractor has completed the Levine Act statement attached as Exhibit E.
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(f) UNDUE INFLUENCE: Contractor declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of the City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement or financial inducement. No officer to employee of the City has or will receive compensation, directly or indirectly, from Contractor, or from any officer, employee or agent of Contractor, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
Violation of this provision shall be a material breach of this Agreement entitling the City to any and all remedies at law or in equity.
(g)During the time of their tenure with the City and for one thereafter, no member, officer or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the services under this Agreement shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connect with the services performed under this Agreement.
SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Contractor, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena. (c) Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Unless Contractor is adverse to City, Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
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(d) If Contractor, or any officer, employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Contractor’s conduct.
SECTION 16 INDEMNIFICATION. (NON-DESIGN PROFESSIONALS)
INDEMNIFICATION BY CONTRACTOR. To the fullest extent permitted by law, Contractor shall indemnify, protect, defend (with legal counsel reasonably acceptable to City) and hold harmless City and any and all of its elected and appointed officials, officers, employees, representatives, volunteers and agents (“Indemnified Parties”) from and against any and all losses, liabilities, demands, cost and expenses, including attorney’s fees and costs, caused in whole or in part by the negligent or wrongful act, error or omission of Contractor, its officers, agents, employees or subcontractors (or any agency or individual that Contractor shall bear the legal liability thereof) in the performance of services under this Agreement. Contractor’s duty to indemnify and hold harmless City shall not extend to the City’s sole or active negligence or willful misconduct.
DUTY TO DEFEND. In the event the Indemnified Parties, individually or collectively, are made a party to any action, lawsuit, or other adversarial proceeding arising from the performance of the services encompassed by this Agreement, and upon demand by City, Contractor shall defend the Indemnified Parties at Contractor’s cost or at City’s option, to reimburse City for its costs of defense, including reasonable attorney’s fees and costs incurred in the defense of such matters to the extent the matters arise from, relate to or are caused by Contractor’s negligent acts, errors or omissions.
Payment by City is not a condition precent to enforcement of this provision.
In the event of any dispute between Contractor and City, as to whether liability arises from the sole or active negligence or willful misconduct of City or its officers, employee, or agents, Contractor will be obligated to pay for City’s defense until such time as a final judgment has been entered adjudicating the Indemnified Parties as solely or actively negligent or to have acted with willful misconduct. Contractor shall not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees, and costs of litigation.
SECTION 17. INSURANCE.
Contractor agrees to obtain and maintain in full force and effect during the Term of this Agreement the insurance policies set forth in Addendum “1” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Contractor agrees to provide City with copies of required policies upon request.
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INSURANCE DOES NOT EXCUSE INDEMNIFICATION OBLIGATION. Contractor’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Contractor or Indemnitees. This indemnification obligation shall survive this Agreement and shall not be limited by any term of any insurance policy required under this Agreement.
NONWAIVER OF RIGHTS. Indemnitees do not and shall not waive any rights that they may possess against Contractor on the basis of acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement.
WAIVER OF RIGHT OF SUBROGATION. Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees.
SECTION 18. ASSIGNMENT.
The expertise and experience of Contractor are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Contractor under this Agreement. In recognition of that interest, Contractor shall not assign or transfer this Agreement or any portion of this Agreement, the performance of any of Contractor’s duties or obligations under this Agreement nor any monies due under this Agreement, without the prior written consent of the City, which may be given in the sole and absolute discretion of the City Manager. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 20 “Termination of Agreement.” City acknowledges, however, that Contractor, in the performance of its duties pursuant to this Agreement, may utilize subcontractors. Before retaining or contracting with any subcontractor for any services under this Agreement, Contractor shall provide City with the identity of the proposed Subcontractor, a copy of the proposed written contract between Contractor and such subcontractor which shall include an indemnity provision identical to the one provided herein identifying City as an indemnified party, or an incorporation of the indemnity provision provided therein, and proof that such proposed subcontractor carries insurance at least equal to that required by this Agreement or obtain a written waiver from the City for such insurance.
Contractor may use assistants, under its direct supervision, to perform some of the services under this Agreement. Contractor shall provide City at least fourteen (14) days’ notice prior to the departure of such assistant from this employe. Should such assistant leave Contractor’s employ, the City shall have the option to immediately terminate this Agreement. Upon such termination, Contractor’s sole compensation shall be payment for actual services performed up to, and including the date of termination or as otherwise agreed to in writing with the City.
SECTION 19. RESERVED
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SECTION 20. TERMINATION OF AGREEMENT.
(a)City may terminate this Agreement, with or without cause, at any time by giving prior written notice of termination to Contractor. In the event such notice is given, Contractor shall cease immediately all work in progress. (b)Contractor may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Contractor or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Contractor, or City may terminate this Agreement immediately upon written notice. (d)Upon termination of this Agreement by either Contractor or City, all property belonging exclusively to City which is in Contractor’s possession shall be returned to City. Contractor shall furnish to City a final invoice for work performed and expenses incurred by Contractor, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. (e)Upon written notice, City may suspend all or any portion of Contractor’s performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. City will pay to Contractor a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. City may rescind the suspension prior to or at six (6) months by providing Contractor with written notice of the rescission, at which time Contractor would be required to resume performance in compliance with the terms and provisions of this Agreement.
Contractor will be entitled to an extension of time to complete performance under this Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.
SECTION 21. DEFAULT.
In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is thirty (30) days, which may be extended or reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on approved invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under Section
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20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Contractor shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of either Party. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Contractor in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 24. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, delivered by a reputable document delivery service (i.e. Federal Express) which provides a receipt showing the date and time of delivery; or U.S. mail, certified mail, postage prepaid and return receipt requested, addressed as follows:
TO CITY: City of Indio
Attn: City Manager
100 Civic Center Mall
Indio, CA 92201
cc: City Representative E-mail
TO CONTRACTOR: Pump Check Inc.
Attn: Rhonda Steward
14427 Meridian Parkway Suite I
March Air Reserve Base, CA 92518
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Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 25. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Contractor represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Contractor to the performance of its obligations hereunder.
Should signatory of this Agreement be unauthorized to bind Contractor, such signor shall be personally liable for the obligations set forth in this Agreement.
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the Indio Municipal Code.
SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Contractor and by City in the same manner as the Agreement was approved. Notwithstanding, the City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Indio Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 29. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 30. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties,
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venue in state trial courts shall lie exclusively in the County of Riverside, California.
In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 31. ATTORNEY’S FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits and Addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Contractor and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding. All prior or contemporaneous agreements, understandings, representations or statements, oral or otherwise, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth here and upon each party’s own independent investigation of any and all facts such party deems materials.
SECTION 33. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s) and all other parts, provisions or representations herein shall remain in full force or effect. .
SECTION 34. INCORPORATION AND CONFLICTING TERMS.
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(a)The following documents are incorporated and made part of this Agreement by this reference:
1. Insurance requirements (“Addendum 1”)
2. All Exhibits and Addendums
3. All amendments
4. Contractor’s proposal, if any
5. Any laws, regulations, requirements, or restrictions, applicable to the funding source used by City to pay Contractor for any portion of work done under Agreement (“Funding Restrictions”) (b)The documents listed above shall be referred to collectively as the “Agreement Documents.” The Agreement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, Exhibits and Addendums, and Contractor’s proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.
SECTION 35. TIME OF ESSENCE.
Time is of the essence for each and every provision of this Agreement. [SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF INDIO
___________________________
Jonathan Nicks
City Manager
ATTEST:
CITY CLERK
By: ___________________________
Sabdi Sanchez, MMC
Director of City Clerk Services
APPROVED AS TO FORM:
CITY ATTORNEY
By: ___________________________
Steven Graham Pacifico
City Attorney
CONTRACTOR:
PUMP CHECK INC.
By:
Rhonda Steward
Office Manager
Attachments:
Exhibit A- Scope of Services
Exhibit B- Compensation
Attachments – Continued
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Exhibit C- Insurance (Addendums 1-3)
Exhibit D- Conflict of Interest Form
Exhibit E- Levine Act Statement
Exhibit F- Request for Proposal (if used)
Exhibit G- Contractor’s Proposal (if used)
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Exhibits
EXHIBIT “A”
SCOPE OF SERVICES
1) Provide the following for all sites as noted on the attached Exhibit A:
a) Potable Water Standard Electric Pump Test
b) Potable Water Production Meter - Water Meter Testing of 25 meters c) Potable Water Meter Electronic Calibration
d) Pump Efficiency Testing for 20 groundwater wells
e) Pump Efficiency Testing for 18 booster stations
Task 1 Deliverables:
Electronic pdf results of hydraulic pump test, water meter test, and electronic calibration results performed.
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Exhibits
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Exhibits
EXHIBIT “B”
COMPENSATION
The total compensation shall not exceed per fiscal year amounts shown below, including the optional four (4) additional one (1) year extensions.
Compensation Summary
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EXHIBIT “C”
INSURANCE
Without limiting Contractor’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Contractor 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.
Contractor shall provide the following scope and limits of insurance:
MINIMUM SCOPE OF INSURANCE. Contractor shall maintain the following types and limits of insurance:
GENERAL LIABILITY INSURANCE. Contractor 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. Contractor 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 Contractor 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.
WORKERS’ COMPENSATION INSURANCE. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 per accident or disease). Contractor 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, Contractor 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 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;
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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 Contractor 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. Contractor 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. Contractor 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 Contractor, their agents, representatives, employees, or subcontractors.
PRIMARY/NONCONTRIBUTING. Coverage provided by Contractor 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 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 Agency before the Agency’s own insurance or self-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 Contractor or Agency will withhold amounts sufficient to pay premium from Contractor payments.
In the alternative, Agency may cancel this Agreement.
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.
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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 Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its n right of recovery against Agency and shall require similar written express waivers and insurance clauses from each of its subcontractors.
ENFORCEMENT OF CONTRACT PROVISIONS (NON ESTOPPEL). Contractor acknowledges and agrees that any actual or alleged failure on the part of the Agency to inform Contractor 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 Contractor maintains higher limits than the minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available Insurance proceeds in excess of the specified minimum limits of Insurance and coverage shall be available to the Agency.
NOTICE OF CANCELLATION. Contractor 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 Contractor's insurers are unwilling to provide such notice, then Contractor shall have the responsibility of notifying the Agency immediately in the event of Contractor'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 Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brough, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
PASS THROUGH CLAUSE. Contractor agrees to ensure that its subcontractors, subcontractors, and any other party who is brought onto or involved in the project/service by Contractor (hereinafter collectively "Subcontractor'"), provide the
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same minimum insurance coverage and endorsements required of Contractor under this Agreement Contractor 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 Contractor's Subcontractor cannot comply with this requirement, which proof must be submitted to the Agency, Contractor may still be able to utilize the Subcontractor provided Contractor 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 Contractor, but in all other terms consistent with the Contractor's requirements under this Agreement. This provision does not relieve the Contractor 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 Contractor with the ability to utilize 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 Contractor 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 Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the Agency and Contractor may renegotiate Contractor'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 investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
TIMELY NOTICE OF CLAIMS. Contractor shall give Agency prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
ADDITIONAL INSURANCE. Contractor 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.
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.
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(A)OTHER REQUIREMENTS. Contractor 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 Contractor furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Upon request from the City, Contractor shall furnish certificates and endorsements from each subcontractor identical to those Contractor provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Contractor 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 Contractor’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
4. Coverage provided by Contractor 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 noncontributory 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 Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
6. General liability, automobile liability and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City
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and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies.
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EXHIBIT “D”
CONFLICT OF INTEREST FORM
CONTRACTOR FINANCIAL DISCLOSURES
Contractor 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 Contractor to notify the City of any staff changes relating to this Agreement. The City Manager has made the following determination and Contractor, 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 Contractor 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 Contractor. Contractors duties are as follows:
_________________________________________________________________ ____________________________ ___________________________ Jonathan Nicks, City Manager Rhonda Steward, Office Manager B. In accomplishing the scope of services of this Agreement, Contractor will be performing a specialized service for the City, and there is substantial likelihood that the Contractor may make or participate in making, a governmental decision, which may have a foreseeable material effect on a financial interest. As a result, the Contractor shall be subject to the Disclosure Category “Contractor” of the City’s Conflict of Interest Code.
_________________________ ___________________________
Jonathan Nicks, City Manager Rhonda Steward, Office Manager
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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 Contractor 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 Fermon
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 Rhonda Steward, Office Manager
Pump Check Inc.
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Exhibits
EXHIBIT “F”
REQUEST FOR PROPOSAL
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REQUEST FOR PROPOSALS
For
Annual Hydraulic Pump and Meter Accuracy Testing
Date of Issuance: Wednesday, February 04, 2026
RESPONSES MUST BE RECEIVED NO LATER THAN
4:00 pm, Thursday, February 26, 2026
Electronic Submittal Directed to:
Roman Gonzalez
Water Project Construction Manager
[email protected]
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As part of the Annual Hydraulic Pump and Meter Accuracy Testing, Indio Water Authority (“IWA”) is seeking qualified (“Firm”) to provide pump efficiency testing for IWA’s current wells, boosters, water production meters, and electronic calibration for water meters. IWA intends to enter into agreements with the highest qualified firm(s) after all submittals are evaluated and negotiations completed. The selected firm(s) must have adequate knowledge of requirements of state and federally funded projects; state and federal drinking water standards; and American Water Works Association standards. Experience working in the water industry within the Coachella Valley is preferred.
II. BACKGROUND
Indio Water Authority is a joint powers authority between the City of Indio and Indio Housing Authority with a Board/Executive Director form of government. The City of Indio is located in Riverside County, approximately 120 miles east of Los Angeles and approximately 30 miles east of the City of Palm Springs. Indio, along with nine other cities comprises a geographical area commonly known as “The Coachella Valley.” Indio is the largest city in the Coachella Valley with a growing population of over 88,000 residents. Indio Water Authority has approximately 25,000 service connections, has ample capacity to meet system demands and continues to grow.
The Engineering and Water Quality Division of Indio Water Authority is responsible for coordinating the planning, design, and construction of Capital Improvement Projects (CIP) to support future growth and enhance existing infrastructure. Engineering staff supports the public needs of developers in building new residential and commercial properties and provides plan check and inspection services. The Engineering Division also maintains and updates IWA’s Geographic Information Systems (GIS) and GIS-based asset management and work order management system. The Water Quality Section of the Division routinely samples for water quality and compliance with state and federal drinking water standards and regulations. The Engineering Division also supports the water operations division on all projects and regulatory compliance as needed.
III. OBJECTIVE
The scope of work aims to provide pump efficiency testing for IWA’s current wells, boosters, water production meters, and electronic calibration for water meters. IWA intends to enter into agreements with the highest qualified firm(s) after all submittals are evaluated and negotiations completed in a multiyear contract.
IV. SCOPE OF SERVICES
Interested firms shall address in their submittals their firm’s ability to provide all the following services if selected by IWA:
1) Provide the following for all sites as noted on the attached Exhibit A :
a. Potable Water Standard Electric Pump Test
b. Potable Water Production Meter - Water Meter Testing of 25 meters c. Potable Water Meter Electronic Calibration
d. Pump Efficiency Testing for 20 groundwater wells
e. Pump Efficiency Testing for 18 booster stations
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➢ Electronic pdf results of hydraulic pump test, water meter test, and electronic calibration results performed.
V. SUBMITTAL FORMAT
All respondents must submit qualifications and costs according to the specifications set forth below. Submittals must be relevant to the specific work required and should not exceed 10 pages of information (not including cover, back cover, index sheets, rate schedule, etc.).
A. Work Proposal
a) Letter of Introduction
i. Provide the name and contact information for firm submitting the proposal. Include a brief description of the firm. Identify any sub-firms and their responsibilities. This letter must bear the signature of the person having proper authority to make the proposal for the firm.
b) Scopes of Work
i. Provide a brief synopsis of the proposal summarizing the firm’s unique qualities and the overall benefit of the proposal for the IWA.
c) Statement of Qualifications
i. A listing of the firm’s key project personnel including relevant experience and resumes (up to 5 key members), firm’s office location(s), and other information deemed relevant to the proposal by the firm. Address the firm's demonstration of familiarity with the required standards, procedures, and regulations.
ii. There shall be one person from your firm identified in your proposal who will be the Principal/Project Manager and single point-of-contact for IWA. iii. Identify ability to manage the proposed contract and availability of personnel. iv. Provide a minimum of three (3) references from public agency references with similar projects, if any.
Cost Proposal (In a separate email labeled (“Annual Hydraulic Pump and Meter Accuracy Testing Fee”))
a) Rate Schedule
i. In the email, firms are to submit a Rate Schedule that includes all personnel by classification and hourly billing rates. Any proposed service fees, travel costs and/or mark-ups on outside services shall also be noted. The Cost Proposal shall note if there are any changes, or not, to the proposed rate(s) over time.
VI. REVIEW OF AGREEMENT FOR PROFESSIONAL SERVICES
The IWA Agreement for Professional Services is attached for review and comments. Please indicate if the proposed agreement is acceptable to your firm and, if not, what specifically is not acceptable with your firm's proposed changes.
VII. GENERAL ADMINISTRATIVE INFORMATION
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i. Any costs incurred by a respondent in the preparation, delivery or presentation of a proposal.
ii. Any costs incurred by a respondent in meeting the criteria as a result of making or submitting a proposal or subsequently in entering into a formal agreement with the IWA; and
iii. Any errors, inaccuracies or misstatements related to the information or data supplied to any firm by the IWA. The use of such information or data provided by the IWA, its officers, employees or agents is intended to be used at the sole discretion and risk of the firm(s) in the preparation of a proposal pursuant to this Request Proposals only.
• The selected firm(s) shall comply with any and all applicable Federal and State laws pertaining to employment.
• The IWA reserves the right to accept, reject, modify or cancel in whole or in part, this Request for Proposals.
• The IWA reserves the right to accept or reject any or all proposals, negotiate modifications to proposals that it deems acceptable, to request and consider additional information from any proposer, and to waive minor irregularities and technical defects in this proposal process. The IWA reserves the right to seek new proposals when it determines that it is in the best interest to do so.
VIII. SUBMITTAL DUE DATE
Proposal is due to IWA’s representative, Roman Gonzalez: [email protected].
IX. SELECTION PROCESS
1. Proposals will be reviewed by a selection panel of Indio Water Authority staff and evaluation criteria is as follows:
a. Firm’s experience and project team’s past performance on similar local projects (25%) b. Proposed project team (35%)
c. Project understanding and approach (25%)
d. Proposed Scope of Work and deliverables including Optional Items (15%)
2. The contract will be awarded based on demonstrated competence and qualifications for the type of services to be performed and at fair and reasonable prices to the Indio Water Authority.
Qualifications, not cost, will be the primary competitive measure by which the contract will be awarded. The Indio Water Authority may or may not choose to interview two or more closelyrated firms.
The Indio Water Authority will open contract negotiations with the top-ranked firm(s). The selected firm(s) will be expected to enter into the attached “Agreement for Professional Services.” The Indio Water Authority reserves the right to waive informalities and to contract with multiple firms or reject all proposals at its sole discretion. Firm(s) are encouraged to keep their proposals brief and relevant to the specific work required.
X. AUTHORITY TO WITHDRAW
IWA reserves the right to withdraw this Request for Proposals without prior notice. IWA makes no representation that any agreement will be awarded to any firm as a result of having responded to this request. The IWA expressly reserves the right to reject any and all proposals in response to this Request for Proposals without indicating a reason for such rejection.
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All proposals submitted to the IWA in response to this Request for Proposals shall become the property of IWA, shall be considered public information, and will not be returned.
ATTACHMENT:
1. All IWA Sites – Exhibit A
2. IWA Facilities Map
3. Evaluation Matrix
4. IWA Professional Services Agreement
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Well 1 B
Independent Motor HP 100
Well AA Meter Size 10" Propeller
Motor HP 400
Meter Size 12" Electro Magnetic Well 1C
Motor HP 100
Well BB Meter Size 10" Propeller
Motor HP 400
Meter Size 12" Electro Magnetic Well 1E
Motor HP 250
Well 13 A Meter Size 12" Electro Magnetic
Motor HP 400
Meter Size 12" Electro Magnetic Well 2C
Motor HP 150
Well U Meter Size 10" Propeller
Motor HP 350
Meter Size 12" Electro Magnetic Well 2D
Motor HP 200
Well S Meter Size 10" Propeller
Motor HP 350
Meter Size 14" Propeller Well 3A
Motor HP 150
Well T Meter Size 10" Propeller
Motor HP 400
Meter Size 16 " Propeller Well 3B
Motor HP 100
Well W Meter Size 10" Propeller
Motor HP 350
Meter Size 16" Propeller Well 3C
Motor HP 150
Well V Meter Size 10" Electro Magnetic
Motor HP 350
Meter Size 16 " Propeller Well 4A
Motor HP 200
Well Z Meter Size 10" Propeller
Motor HP 350
Meter Size 12 " Electro Magnetic Well 4B
Motor HP 200
Meter Size 10" Propeller
Well 4C
Motor HP 200
Meter Size 12" Propeller
Exhibit A
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Booster 1 200 hp 16" Electro Magnetic
Booster 2 200 hp
Booster 3 200 hp
Plant 2 Meter
Booster 1 150 hp 10" Electro Magnetic
Booster 2 150 hp
Plant 3 Meter
Booster 1 200 hp 16" Electro Magnetic
Booster 2 200 hp
Booster 3 200 hp
Plant 4 Meter
Booster 1 200 hp 16" Electro Magnetic
Booster 2 200 hp
Booster 3 200 hp
Booster 4 200 hp
Shadow Lake Meter
Booster 1 15 hp Electro Magnetic
Booster 2 15 hp
Booster 3 75 hp
Exhibit A
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Distribution System 2020
•• <I!!.
AVENUE42
i
LEGEND
WELLS RESERVOIR
18 1C 1E • RESERVOIR 1
3A 2D 2C • RESERVOIR 2
4A 38 3C 0 RESERVOIR 3
4B 4C • RESERVOIR 4
13A s T • SHADOW LAKE {SL)
u V w • LOST HORSE {LH)
AA BB z • TERRA LAGO
BOOSTER STA.{TLBS)
REVISED DATE: 08/17/2020
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Proposal Evaluation Worksheet
Project Name:
Firm Name:
Proposal Evaluation Committee Member:
Date of Review:
Major Strengths:
Major Deficiency:
Project Manager’s Experience and Strengths:
Scoring Guidelines
Adjectival
Rating
Numerical Rating
(Raw Score)
Description
Excellent 10 The proposal significantly exceeds, in all aspects, the standard for evaluation.
Very Good 8 – 9 The proposal exceeds, to varying degrees, one or more of the requirements identified in the standard for
evaluation.
Good 5 – 7 The proposal meets all aspects of the standard for evaluation.
Fair 3 – 4 The proposal is slightly below the standard for evaluation but for the most part, complies with that
standard.
Poor 1 – 2 The proposal has major shortcomings when measured against the standard for evaluation
Unacceptable 0 One or more elements of the respondent’s proposal does not meet the minimum requirement of the
solicitation.
Note: The numerical rating (raw score) is multiplied by the factor’s weight to arrive at the weighted score. Please score the proposal according to the following criteria. Maximum points for each criterion are indicated in parentheses. Also please provide comments for each criteria.
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Project Name:
Date:
Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreem... Page 144 of 953 PROFESSIONAL SERVICES AGREEMENT*
BY AND BETWEEN
THE INDIO WATER AUTHORITY,
A JOINT POWERS AUTHORITY
AND
[CONTRACTOR],
A [STATE & TYPE OF CORP]
Form Approved January 7, 2025
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PROFESSIONAL SERVICES AGREEMENT
FOR [DESCRIPTION OF SERVICES] TO
BETWEEN THE INDIO WATER AUTHORITY AND [COMPANY]
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this __TH day of ___________, 202_ (“Effective Date”), by and between the INDIO WATER AUTHORITY (“Authority”), a joint powers authority and ___________, a [STATE AND TYPE OF CORP, sole proprietorship, or partnership] (“Consultant”). For the purposes of this Agreement Authority and Consultant are sometimes hereinafter referred to as “Party” and collectively referred to as the “Parties.”
RECITALS
1. Authority has sought by direct contract [or Request for Proposals] the performance of [TYPE OF SERVICES] services pertaining to [PROJECT, as applicable].
2. Consultant was selected by Authority to perform those services on the basis of Consultant’s demonstrated competence, professional qualifications and licensure necessary for the satisfactory performance of the services required.
3. Pursuant to the Chapter 33.116 of the Indio Municipal Code, the Authority has authority to enter into this Agreement.
a. The Executive Director has the authority to execute this Agreement [$5000 - $75,000 or less] OR
b. The Authority’s Governing Board (“Board”) has the authority to execute this Agreement [over $75,000]
4. The Parties now desire to formalize the selection of Consultant for performance of those services defined and described with particularity in Section 2 “Scope of Services and Schedule of Performance” of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, for and in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT
(a)Subject to the provisions of Section 20 "Termination of Agreement" of this Agreement, the Term of this Agreement shall commence on _______ (the “Effective Date”) and continue in effect until the tasks described are completed, but in no event later than 202_, unless sooner terminated or otherwise
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extended by written agreement of the Parties. All days set out are calendar days.
(b)The Executive Director may, in his or her sole discretion, unilaterally exercise an option to extend the Agreement on a month-to-month basis following expiration, on the same terms and conditions, including compensation as set forth in Section 4 “Compensation and Method of Payment.” (c) Consultant acknowledges that the Agreement term may extend over multiple Authority fiscal years, and that work and compensation under this Agreement is contingent on the Board appropriating funding for and authorizing such work and compensation for those fiscal years. This Agreement may be terminated by the Executive Director at the end of a fiscal year when sufficient funding is not appropriated and authorized for the subsequent fiscal year. Authority is not obligated to pay Consultant for any amounts not duly appropriated and authorized by Board.
SECTION 2. SCOPE OF SERVICES, SCHEDULE AND SCHEDULE OF PERFORMANCE (a)SCOPE OF SERVICES. Subject to this Agreement, all addendums and exhibits attached and incorporated hereto, Consultant shall at all times faithfully, competently and to the best of their ability, experience and talent perform the services and tasks set forth in Exhibit “A” “Scope of Services” incorporated as if fully set forth here (hereinafter, the “Services”) and the Authority agrees to retain and does hereby retain Consultant to provide the Services. (b)SCHEDULE OF PERFORMANCE. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Consultant shall be deemed to be in Default of this Agreement. Thereafter, the Authority, in its sole discretion, may choose not to enforce Section 21, “Default” of this Agreement and may instead allow Consultant to continue performing the Services.
(c) ADDITIONAL SERVICES. Consultant shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 3. AUTHORITY REPRESENTATIVE.
The Authority’s _______ shall represent it in all matters regarding the administration of this agreement, review and approval of all products submitted by consultant, but shall have no authority to enlarge the tasks to be performed.
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SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a)Subject to any limitations set forth in this Agreement, Authority agrees to pay Consultant the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed [AMOUNT], unless additional compensation is approved in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. Payment shall be made in accordance with Authority’s usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to Authority at the address set forth in Section 24, “Notices” hereof. Under no circumstances shall the total amount paid to Consultant under this Agreement exceed the Executive Director’s authority under Indio Municipal Code Section 33.116 (C)(2) without prior approval by the Board.
(b)Each month Consultant shall furnish to Authority an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and subconsultant contracts.
Subconsultant charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Exhibit “B” include payment for labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of tasks performed and the amount of time incurred for or allocated to that task. Authority’s Representative shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by Authority, the original invoice shall be returned by Authority to Consultant for correction and resubmission. (c) Except as to any charges for work performed or expenses incurred by Consultant which are disputed by Authority, Authority will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant’s correct and undisputed invoice.
(d)Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant. (e) If this Agreement is extended pursuant to Section 1 “Term of Agreement,” the Authority shall pay the same rates specified in Exhibit “B” “Compensation.”
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SECTION 5. RESERVED
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement shall become the sole property of Authority and may be used, reused or otherwise disposed of by Authority without the permission of the Consultant. Upon completion, expiration or termination of this Agreement, Consultant shall turn over to Authority all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that Authority utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement, Consultant’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
(a) INTELLECTUAL PROPERTY RIGHTS ASSIGNMENT. For no additional compensation, Consultant hereby assigns to Authority all of Consultant’s rights, title, and interest in and to the content of all deliverable materials created by Consultant or its employees, agents, or subconsultants, including copyrights, in connection with the Services performed under this Agreement. Consultant shall promptly execute and deliver, and shall cause its employees, agents, and subconsultants to promptly execute and deliver, upon request by the Authority or any of its successors or assigns at any time and without further compensation of any kind, any power of attorney, assignment, application for copyright, patent, trademark or other intellectual property right protection, or other papers or instruments which may be necessary or desirable to fully secure, perfect or otherwise protect to or for the Authority, its successors and assigns, all right, title and interest in and to the content of the deliverable materials. For purposes of this section deliverable materials includes all works, tangible or not, created under this Agreement including, without limitation, documents, material, data, reports, manuals, specifications, artwork, drawings, sketches, computer programs and databases, schematics, photographs, video and audiovisual recordings, sound recordings, marks, logos, graphic designs, notes, website, domain names, inventions, processes, formulas matters and combinations thereof, and all forms of intellectual property. The provisions of this paragraph are binding on the successors, assigns and heirs of Consultant and shall survive the termination of Consultant’s Services under this Agreement.
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SECTION 7. CONSULTANT’S BOOKS AND RECORDS.
(a)Consultant shall maintain any and all documents and records demonstrating or relating to Consultant’s performance of the Services. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to Authority pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Consultant pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures.
(b)Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by Authority or its designated representative. Copies of such documents or records shall be provided directly to the Authority for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Consultant’s address indicated for receipt of notices, “Section 24,” of this Agreement.
(c) Where Authority has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Consultant’s business, Authority may, by written request, require that custody of such documents or records be given to the Authority. Access to such documents and records shall be granted to Authority, as well as to its successors in interest and authorized representatives.
SECTION 8. INDEPENDENT CONSULTANT.
(a)Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of Authority. Consultant shall have no authority to bind Authority in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against Authority, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by Authority. (b)The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither Authority, nor any elected or appointed boards, officers, officials, employees or agents of Authority, shall have control over the conduct of Consultant or any of Consultant’s officers, employees, subconsultants or
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agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of Authority. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against or bind Authority in any manner. (c) Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to Authority’s employees. Except for the fees paid to Consultant as provided herein, the Authority shall not pay salaries, wages or other compensation to consultant for performing services hereunder. The Authority shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. Consultant expressly waives any claim Contractor may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE.
Consultant represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services in the same geographic area as are required of Consultant under this Agreement, and shall use such skill, prudence, and diligence as other members of Consultant’s profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Services” that shall also be applicable to Consultant’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Consultant shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Consultant shall at all times observe and comply with all such laws, ordinances and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances and regulations. Consultant represents and warrants that Consultant has obtained or shall promptly obtain all necessary licenses to perform the Services set forth in this Agreement and that such licenses are in good standing. Consultant further represents and warrants that the services provided herein shall conform to all ordinances, policies and practices of the Authority. Neither Authority, nor any elected or appointed boards, officers, officials,
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employees or agents of Authority, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section.
SECTION 11. RESERVED
SECTION 12. NONDISCRIMINATION.
Consultant shall not discriminate, in any way, against any person on the basis of race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement.
SECTION 13. RESERVED
SECTION 14. CONFLICTS OF INTEREST.
(a) Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of Authority or which would in any way hinder Consultant’s performance of the Services. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subconsultant. To the extent applicable, Consultant further covenants that it has not contacted with nor is performing any services, directly or indirectly, with any developer or property owner or entity owning property within the Authority (or a study area) and further covenant and agrees that it shall provide no service or enter into any agreement with any developer or property owner or firm or partnership owning property within the Authority or the study area prior to completion of work under this Agreement. Consultant further agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of Authority in the performance of this Agreement. (b) Authority understands and acknowledges that Consultant may be, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Consultant is unaware of any stated position of Authority relative to such projects. Any future position of Authority on such projects shall not be considered a conflict of interest for purposes of this section. (c) Authority understands and acknowledges that Consultant may perform nonrelated services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. (d) During the term of this Agreement, Consultant shall complete a Form 700 as determined by the Authority’s Filing Officer.
(e)Consultant has completed the Levine Act statement attached as Exhibit E.
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(f) UNDUE INFLUENCE: Consultant declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of the Authority in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement or financial inducement. No officer to employee of the Authority has or will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this provision shall be a material breach of this Agreement entitling the Authority to any and all remedies at law or in equity. (g)During the time of their tenure with the Authority and for one thereafter, no member, officer or employee of Authority, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the services under this Agreement shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connect with the services performed under this Agreement.
SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than Authority without prior written authorization from the Executive Director, except as may be required by law.
(b) Consultant, its officers, employees, agents or subconsultants, shall not, without prior written authorization from the Executive Director or unless requested by the General Counsel of Authority, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives Authority notice of such court order or subpoena.
(c) Consultant shall promptly notify Authority should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder.
Authority retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Unless Consultant is adverse to Authority, Consultant agrees to cooperate fully with Authority and to provide Authority with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any
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such response does not imply or mean the right by Authority to control, direct, or rewrite said response.
(d) If Consultant, or any officer, employee, agent or subconsultant of Consultant, provides any information or work product in violation of this Agreement, then Authority shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
SECTION 16A. INDEMNIFICATION. (NON-DESIGN PROFESSIONALS) INDEMNIFICATION BY CONSULTANT. To the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with legal counsel reasonably acceptable to Authority) and hold harmless Authority and any and all of its elected and appointed officials, officers, employees, representatives, volunteers and agents (“Indemnified Parties”) from and against any and all losses, liabilities, demands, cost and expenses, including attorney’s fees and costs, caused in whole or in part by the negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any agency or individual that Consultant shall bear the legal liability thereof) in the performance of services under this Agreement. Consultant’s duty to indemnify and hold harmless Authority shall not extend to the Authority’s sole or active negligence or willful misconduct.
DUTY TO DEFEND. In the event the Indemnified Parties, individually or collectively, are made a party to any action, lawsuit, or other adversarial proceeding arising from the performance of the services encompassed by this Agreement, and upon demand by Authority, Consultant shall defend the Indemnified Parties at Consultant’s cost or at Authority’s option, to reimburse Authority for its costs of defense, including reasonable attorney’s fees and costs incurred in the defense of such matters to the extent the matters arise from, relate to or are caused by Consultant’s negligent acts, errors or omissions. Payment by Authority is not a condition precent to enforcement of this provision.
In the event of any dispute between Consultant and Authority, as to whether liability arises from the sole or active negligence or willful misconduct of Authority or its officers, employee, or agents, Consultant will be obligated to pay for Authority’s defense until such time as a final judgment has been entered adjudicating the Indemnified Parties as solely or actively negligent or to have acted with willful misconduct. Consultant shall not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees, and costs of litigation.
SECTION 16B. INDEMNIFICATION. (DESIGN PROFESSIONALS)
IF THIS CONSULTANT IS A DESIGN PROFESSIONAL AS DEFINED IN CAL. CIV.
CODE § 2782.8, this Section shall supersede and replace all other indemnity provisions contained in the Authority's specifications, which shall have no force and effect.
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DESIGN PROFESSIONAL INDEMNITY OBLIGATIONS. To the maximum extent permitted by law, Consultant shall defend, hold harmless and indemnify Authority, and any and all of its elected and appointed officials, officers, employees, agents, and designated volunteers (collectively, “Indemnitees”), from and against any and all claims, losses, liabilities, damages, costs and expenses, including attorneys’ fees and costs, to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant
Consultant’s duty to defend shall consist of reimbursement of defense costs incurred by Agency in direct proportion to the Consultant’s proportionate percentage of fault.
Consultant’s percentage of fault, for both indemnity and defense, shall be determined, as applicable, by a court of law, jury or arbitrator. In the event any loss, liability or damage is incurred by way of settlement or resolution without a court, jury or arbitrator having made a determination of the Consultant’s percentage of fault, and the parties cannot mutually agree on Consultant’s percentage of fault, the parties agree to mediation with a neutral third-party to determine the Consultant’s proportionate percentage of fault for purposes of determining the amount of indemnify and defense cost reimbursement owed to the Authority.
APPLICABLE TO ALL CONSULTANTS:
PROMPT PAYMENT OF JUDGEMENT. Consultant shall promptly pay any judgment rendered against Authority or any Authority Personnel for any such claims or liabilities incurred due to Consultant’s.
CLAIMS. Any claim by Consultant against Authority hereunder shall be subject to Government Code §§ 800 et seq. The claims presentation provisions of said Act are hereby modified such that the presentation of all claims hereunder to the Authority shall be waived if not made within six (6) months after accrual of the cause of action.
SECTION 17. INSURANCE.
Consultant agrees to obtain and maintain in full force and effect during the Term of this Agreement the insurance policies set forth in Addendum “1” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by Authority as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the Executive Director. Consultant agrees to provide Authority with copies of required policies upon request.
INSURANCE DOES NOT EXCUSE INDEMNIFICATION OBLIGATION. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant or Indemnitees. This indemnification obligation shall survive this Agreement and shall not be limited by any term of any insurance policy required under this Agreement.
NONWAIVER OF RIGHTS. Indemnitees do not and shall not waive any rights that they may possess against Consultant on the basis of acceptance by Authority, or the deposit with Authority, of any insurance policy or certificate required pursuant to this Agreement.
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WAIVER OF RIGHT OF SUBROGATION. Consultant, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees.
SECTION 18. ASSIGNMENT.
The expertise and experience of Consultant are material considerations for this Agreement. Authority has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Consultant under this Agreement. In recognition of that interest, Consultant shall not assign or transfer this Agreement or any portion of this Agreement, the performance of any of Consultant’s duties or obligations under this Agreement nor any monies due under this Agreement, without the prior written consent of the Authority, which may be given in the sole and absolute discretion of the Executive Director. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling Authority to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 20 “Termination of Agreement.”
Authority acknowledges, however, that Consultant, in the performance of its duties pursuant to this Agreement, may utilize subconsultants. Before retaining or contracting with any subconsultant for any services under this Agreement, Consultant shall provide Authority with the identity of the proposed Subconsultant, a copy of the proposed written contract between Consultant and such subconsultant which shall include an indemnity provision identical to the one provided herein identifying Authority as an indemnified party, or an incorporation of the indemnity provision provided therein, and proof that such proposed subconsultant carries insurance at least equal to that required by this Agreement or obtain a written waiver from the Authority for such insurance.
Consultant may use assistants, under its direct supervision, to perform some of the services under this Agreement. Consultant shall provide Authority at least fourteen (14) days’ notice prior to the departure of such assistant from this employe.
Should such assistant leave Consultant’s employ, the Authority shall have the option to immediately terminate this Agreement. Upon such termination, Consultant’s sole compensation shall be payment for actual services performed up to, and including the date of termination or as otherwise agreed to in writing with the Authority.
SECTION 19. RESERVED
SECTION 20. TERMINATION OF AGREEMENT.
(a)Authority may terminate this Agreement, with or without cause, at any time by giving prior written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress.
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(b)Consultant may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to Authority.
(c) If either Consultant or Authority fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or Authority may terminate this Agreement immediately upon written notice. (d)Upon termination of this Agreement by either Consultant or Authority, all property belonging exclusively to Authority which is in Consultant’s possession shall be returned to Authority. Consultant shall furnish to Authority a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
(e)Upon written notice, Authority may suspend all or any portion of Consultant’s performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. Authority will pay to Consultant a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. Authority may rescind the suspension prior to or at six (6) months by providing Consultant with written notice of the rescission, at which time Consultant would be required to resume performance in compliance with the terms and provisions of this Agreement.
Consultant will be entitled to an extension of time to complete performance under this Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.
SECTION 21. DEFAULT.
In the event that Consultant is in default under the terms of this Agreement, the Authority shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the Authority may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is thirty (30) days, which may be extended or reduced, if circumstances warrant. During the period of time that Consultant is in default, the Authority shall hold all invoices and shall, when the default is cured, proceed with payment on approved invoices. In the alternative, the Authority may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the Authority may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the Authority to give notice of the Consultant’s default shall not be deemed to result in a waiver of the Authority’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
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Consultant shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of either Party. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. COOPERATION BY AUTHORITY.
All public information, data, reports, records, and maps as are existing and available to Authority as public records, and which are necessary for carrying out the Services shall be furnished to Consultant in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 24. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, delivered by a reputable document delivery service (i.e. Federal Express) which provides a receipt showing the date and time of delivery; or U.S. mail, certified mail, postage prepaid and return receipt requested, addressed as follows:
TO AUTHORITY: Indio Water Authority
Attn: Executive Director
100 Civic Center Mall
Indio, CA 92201
cc: Authority Representative E-mail
TO CONSULTANT: [INSERT COMPANY & THEIR CONTACT
INFO]
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 25. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Consultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder.
Should signatory of this Agreement be unauthorized to bind Consultant, such signor shall be personally liable for the obligations set forth in this Agreement.
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SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the Executive Director or his or her designated representative. The Executive Director shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the Executive Director’s contracting authority under the Indio Municipal Code.
SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Consultant and by Authority in the same manner as the Agreement was approved. Notwithstanding, the Executive Director shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the Executive Director’s contracting authority under the Indio Municipal Code. All other amendments shall be approved by the Board. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 29. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by Authority of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 30. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California.
In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 31. ATTORNEY’S FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
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SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits and Addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Consultant and Authority prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding. All prior or contemporaneous agreements, understandings, representations or statements, oral or otherwise, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth here and upon each party’s own independent investigation of any and all facts such party deems materials.
SECTION 33. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s) and all other parts, provisions or representations herein shall remain in full force or effect.
SECTION 34. INCORPORATION AND CONFLICTING TERMS.
(a)The following documents are incorporated and made part of this Agreement by this reference:
1. Insurance requirements (“Addendum 1”)
2. All Exhibits and Addendums
3. All amendments
4. Consultant’s proposal, if any
5. Any laws, regulations, requirements, or restrictions, applicable to the funding source used by Authority to pay Consultant for any portion of work done under Agreement (“Funding Restrictions”)
(b)The documents listed above shall be referred to collectively as the “Agreement Documents.” The Agreement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, Exhibits and Addendums, and Consultant’s proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.
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SECTION 35. TIME OF ESSENCE.
Time is of the essence for each and every provision of this Agreement.
SECTION 36. FEDERAL FUNDS.
In the event the Services are funded either in whole or in part by a federal grant, Consultant shall comply with the requirements of Addendum “2” “Federal Funds.”
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
INDIO WATER AUTHORITY
___________________________
Bryan H. Montgomery
Executive Director
ATTEST:
SECRETARY
By: ___________________________
Sabdi Sanchez, MMC
Director of City Clerk Services
APPROVED AS TO FORM:
GENERAL COUNSEL
By: ___________________________
Steven Graham Pacifico
General Counsel
CONSULTANT:
By:
Its: [TITLE]
Attachments:
Exhibit A- Scope of Services
Exhibit B- Compensation
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Attachments - Continued
Exhibit C- Insurance (Addendums 1-3)
Exhibit D- Conflict of Interest Form
Exhibit E- Levine Act Statement
Exhibit F- Request for Proposal (if used)
Exhibit G- Consultant’s Proposal (if used)
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EXHIBIT “A”
SCOPE OF SERVICES
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EXHIBIT “B”
COMPENSATION
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EXHIBIT “C”
INSURANCE - ADDENDUM “1”
Without limiting Consultant’s indemnification of Authority, 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 Authority. 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 Authority, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Authority, 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
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least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
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 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 Agency before the Agency’s own insurance or self-insurance shall be called upon to protect it as a maned insured.
AUTHORITY’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 others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its 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 the 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
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each insured against whom claim is made or suit is brough, except with respect to 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 utilize 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.
AUTHORITY’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 investigations, 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 Authority.
(A)OTHER REQUIREMENTS. Consultant shall deposit with Authority, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy Authority that the insurance provisions of this contract have been complied with. The General Counsel may require that Consultant furnish Authority 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. Authority reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Upon request from the Authority, Consultant shall furnish certificates and endorsements from each subcontractor identical to those Consultant provides.
2. Any deductibles or self-insured retentions must be declared to and approved by Authority. At the option of Authority, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects Authority 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 Authority 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 noncontributory basis for the benefit of Authority before the Authority’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 Authority, 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
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Authority, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6. General liability, automobile liability and umbrella/excess liability insurance policies shall provide or be endorsed to provide that Authority 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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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, Authority’s Conflict of Interest Code (on file in the City Clerk’s Office). It is incumbent upon the Consultant to notify the Authority of any staff changes relating to this Agreement. The Executive Director 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 Indio Water Authority’s Governing Board), 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 H. Montgomery, Executive Director (Consultant Signature and Title) B. In accomplishing the scope of services of this Agreement, Consultant will be performing a specialized service for the Authority, 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 Authority’s Conflict of Interest Code.
_________________________________ ______________________________ Brian H. Montgomery, Executive Director (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 Indio Water Authority.
Indio Water Authority’s Governing Board Members as of the date of this document:
Glenn Miller
Elaine Holmes
Oscar Ortiz
Waymond Fermon
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 Indio Water Authority’s Governing Board 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 Indio Water
Authority’s Governing Board 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 Indio Water Authority from awarding a contract to your firm. It may, however, preclude the identified Board Member from participating in the contract award process for this contract.
DATE (SIGNATURE OF CONSULTANT)
(PRINT NAME)
(NAME OF COMPANY)
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EXHIBIT “F”
REQUEST FOR PROPOSAL
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EXHIBIT “G”
CONSULTANT’S PROPOSAL
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Addendum No. 1 February 17, 2026
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EXHIBIT “G”
CONTRACTOR’S PROPOSAL
Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreem... Page 180 of 953 P.O. Box 5646 Riverside, CA 92517 (951) 653-1910 Fax (951) 653-1950 Rate Schedule
February 11, 2026
Roman Gonzalez
Indio Water Authority
83-101 Ave. 45
Indio, CA 92201
Dear Mr. Gonzalez:
Thank you for your interest in Pump Check Inc. and our pump testing program. The program is designed to show how your pumps are performing and what steps can be taken to reduce operating costs. We also make pumping plant panel inspections.
We conduct a standard Field or Index Test. We measure the flow in gallons per minute, the total head or lift, and the power requirement for each pump. For well pumps, the static and pumping levels are measured and the specific yield of the well is determined. The overall plant efficiency (wire to water) and kWh per acre foot for electric driven units are then calculated. We also test and provide similar results for natural gas and diesel driven units. We make a test under the normal operating condition and one or two throttle points to get an idea of how the pump is suited to the existing condition. In pump stations with multiple pumps, we look at the resulting pump performance as other pumps are added.
A pumping cost analysis is provided based on the operating characteristics of each pump. The cost is calculated based on the pump production and energy rate applicable to that account. If, in our opinion, the pump efficiency can be improved, we calculate the savings that can be achieved from that improvement.
The pump test determines if a pump is in need of attention and the dollar value of repairs or changes in operation. It provides current information about water levels and specific yields as well as trends over time. The test also provides information about system pressure and lifts for pump design. The test can be used as a primary tool for prioritized pumping.
We have 68 years of experience in pumping systems analysis and pump testing in California, Nevada, Arizona and Utah. My staff is well trained and equipped. Pump testing is our primary service and we are committed to do them in an accurate and timely manner. Through pump testing and analysis, we can show you how to reduce your pumping costs.
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Our fees for 2026 are as follows:
Potable Water
Standard Pump Test $ 325.00 per pump
Production Water Meter
Water Meter Test $ 325.00 per meter
Water Meter Electronic Calibration $ 325.00 per water meter at the same time as a production water meter test
Water meters and water meter parts Manufactures List Price Any calibration or repair work will be charged as time and materials.
Labor rate $ 158.00 per man hour
Per Diem
Per Person/Per Day $ 250.00 per person/per day
$ 1,131.00 Daily Minimum. The daily minimum is satisfied with completion of more than four tests per day, then charged on a per test basis. The incurred cost of any permits, subscriptions, bonds, additional fees and/or non-standard insurance requirements that we carry levied on us will be passed through.
Pump Efficiency Testing for 20 wells would cost $ 6,500.00 Pump Efficiency Testing for 18 boosters would cost $ 5,850.00 Production water meter testing of 25 meters would cost $ 8,125.00 Electronic Calibration, 25 ea, performed at same time as water meter test $ 8,125.00 Total for requested services $ 28,600.00
If you have any questions, please call me.
Sincerely,
Jon Lee
Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreem... Page 182 of 953 Roman Gonzalez Page 3 02/11/2026
Our fees for 2027 are as follows:
Potable Water
Standard Pump Test $ 335.00 per pump
Production Water Meter
Water Meter Test $ 335.00 per meter
Water Meter Electronic Calibration $ 335.00 per water meter at the same time as a production water meter test
Water meters and water meter parts Manufactures List Price Any calibration or repair work will be charged as time and materials.
Labor rate $ 163.00 per man hour
Per Diem
Per Person/Per Day $ 258.00 per person/per day
$ 1,165.00 Daily Minimum. The daily minimum is satisfied with completion of more than four tests per day, then charged on a per test basis. The incurred cost of any permits, subscriptions, bonds, additional fees and/or non-standard insurance requirements that we carry levied on us will be passed through.
Pump Efficiency Testing for 20 wells would cost $ 6,695.00 Pump Efficiency Testing for 18 boosters would cost $ 6,026.00 Production water meter testing of 25 meters would cost $ 8,369.00 Electronic Calibration, 25 ea, performed at same time as water meter test $ 8,369.00 Total for requested services $ 29,458.00
If you have any questions, please call me.
Sincerely,
Jon Lee
Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreem... Page 183 of 953 Roman Gonzalez Page 4 02/11/2026
Our fees for 2028 are as follows:
Potable Water
Standard Pump Test $ 345.00 per pump
Production Water Meter
Water Meter Test $ 345.00 per meter
Water Meter Electronic Calibration $ 345.00 per water meter at the same time as a production water meter
Water meters and water meter parts Manufactures List Price Any calibration or repair work will be charged as time and materials.
Labor rate $ 168.00 per man hour
Per Diem
Per Person/Per Day $ 265.00 per person/per day
$ 1,200.00 Daily Minimum. The daily minimum is satisfied with completion of more than four tests per day, then charged on a per test basis. The incurred cost of any permits, subscriptions, bonds, additional fees and/or non-standard insurance requirements that we carry levied on us will be passed through.
Pump Efficiency Testing for 20 wells would cost $ 6,896.00 Pump Efficiency Testing for 18 boosters would cost $ 6,206.00 Production water meter testing of 25 meters would cost $ 8,620.00 Electronic Calibration, 25 ea, performed at same time as water meter test $ 8,620.00 Total for requested services $ 30,342.00
If you have any questions, please call me.
Sincerely,
Jon Lee
Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreem... Page 184 of 953 Roman Gonzalez Page 5 02/11/2026
Our fees for 2029 are as follows:
Potable Water
Standard Pump Test $ 357.00 per pump
Production Water Meter
Water Meter Test $ 357.00 per meter
Water Meter Electronic Calibration $ 357.00 per water meter at the same time as a production water meter test
Water meters and water meter parts Manufactures List Price Any calibration or repair work will be charged as time and materials.
Labor rate $ 173.00 per man hour
Per Diem
Per Person/Per Day $ 275.00 per person/per day
$ 1,242.00 Daily Minimum. The daily minimum is satisfied with completion of more than four tests per day, then charged on a per test basis. The incurred cost of any permits, subscriptions, bonds, additional fees and/or non-standard insurance requirements that we carry levied on us will be passed through.
Pump Efficiency Testing for 20 wells would cost $ 7,137.00 Pump Efficiency Testing for 18 boosters would cost $ 6,423.00 Production water meter testing of 25 meters would cost $ 8,922.00 Electronic Calibration, 25 ea, performed at same time as water meter test $ 8,922.00 Total for requested services $ 31,404.00
If you have any questions, please call me.
Sincerely,
Jon Lee
Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreem... Page 185 of 953 Roman Gonzalez Page 6 02/11/2026
Our fees for 2030 are as follows:
Potable Water
Standard Pump Test $ 369.00 per pump
Production Water Meter
Water Meter Test $ 369.00 per meter
Water Meter Electronic Calibration $ 369.00 per water meter at the same time as a production water meter test
Water meters and water meter parts Manufactures List Price Any calibration or repair work will be charged as time and materials.
Labor rate $ 180.00 per man hour
Per Diem
Per Person/Per Day $ 284.00 per person/per day
$ 1,285.00 Daily Minimum. The daily minimum is satisfied with completion of more than four tests per day, then charged on a per test basis. The incurred cost of any permits, subscriptions, bonds, additional fees and/or non-standard insurance requirements that we carry levied on us will be passed through.
Pump Efficiency Testing for 20 wells would cost $ 7,387.00 Pump Efficiency Testing for 18 boosters would cost $ 6,648.00 Production water meter testing of 25 meters would cost $ 9,234.00 Electronic Calibration, 25 ea, performed at same time as water meter test $ 9,234.00 Total for requested services $ 32,503.00
If you have any questions, please call me.
Sincerely,
Jon Lee
Approve Annual Hydraulic Pump and Meter Accuracy Testing Services Agreem... Page 186 of 953 City of Indio
City Council
August 19, 2026
STAFF REPORT
To: City Council
From: Jonathan Nicks, City Manager
Prepared by: Brian Halvorson, Dir. Of Community Development Subject: Second Reading of Ordinance No. 1842 Approving a Second Amendment to the Citrus Ranch Specific Plan Development and Pre-Annexation Agreement (DA-06-10-22) to Amend the Term and Term-Extension Provisions for the Citrus Ranch Development, Generally Located North of the City and West of Dillon Road
RECOMMENDATION:
Staff recommends that the City Council approve the Second Reading and adopt Ordinance No. 1842, approving a Second Amendment to the Citrus Ranch Specific Plan Development and PreAnnexation Agreement (DA-06-10-22) to amend the term and term-extension provisions for the Citrus Ranch development; making findings under the California Environmental Quality Act, Government Code sections 65864 et seq., and Indio Unified Development Code section 6.05.02; authorizing the City Manager, or designee, to execute the Second Amendment subject to approval as to form by the City Attorney; and directing the City Clerk to return the ordinance for second reading and adoption at the next regular City Council meeting.
SUMMARY:
The Citrus Ranch project is located in north Indio, and a Specific Plan was approved in 2007 (Attachment 1). The project’s original Development Agreement (Attachment 2) was approved by the City Council on February 7, 2007. The DA addresses terms and conditions under which the developer and the City will proceed with the Citrus Ranch development. Important terms of the DA include terms, allowance for on-site density transfers, Quimby fees (satisfied by improvements of on-site parks, trails, and recreation facilities), and phasing of the construction of various public improvements such as streets and water facilities. The current DA is set to expire on July 26, 2032, and the applicant has requested to amend the term provisions in the agreement. Currently, the agreement permits one 10-year extension. The proposed amendment would allow one (1) additional twenty (20) year extension following the expiration of the initial term. In addition, an extension request is tied to certain financial obligations or improvements relating to the golf course, clubhouse and 200 residential units (Exhibit A to Ordinance). The primary purpose of the amendments is to facilitate the transfer of ownership of the property.
BACKGROUND INFORMATION:
The Citrus Ranch Specific Plan was approved as a master-planned golf course community containing approximately 3,075 residential units and a hotel situated on 1,183 acres located in the northern portion of the City west of Dillion Road. The project area was subsequently annexed into the City of Indio on July 26, 2012. An Environmental Impact Report, General Plan Amendment, Zone Change, Tentative Maps, and a Development Agreement (DA) were included in these AGENDA ITEM #9.6
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 187 of 953 approvals. The City of Indio, as Lead Agency under the California Environmental Quality Act (CEQA) has determined that this project was previously reviewed as part of the Final Environmental Impact Report (SCH #2005111117) for the Citrus Ranch project. No further environmental review is required.
ATTACHMENTS:
Attachment 1 Citrus Ranch SP
Attachment 2 Citrus Ranch Specific Plan Development Agreement Exhibit A (1)
Ordinance No. 1842 - Citrus Ranch DA Amendment (first rdg) (1)
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Indio
100 Civic Center Mall
P. O. Box Drawer 1788
Indio, CA 92202
Attention: City Clerk
DOC # 2007- 0393695
06/ 15/ 2007 08: 00A Fee: NC
Recorded in official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk B Recorder
R U
I PAGE
IIIIIIIIIIiIIIII
ISIZE I
1111111111I11111111IIII111111111111
DA
S
MISC LONG IRFD COPY M
A L 1 465 1 426 PCOR NCOR SMF NC HGEXAM V
T: CTY UNI Recording
Fee Exempt per Government Code §6103 DEVELOPMENT
ANDPRE -ANNEXATION AGREEMENT \&, FN THIS
DEVELOPMENT AND PRE -ANNEXATION AGREEMENT ("Agreement") is made, entered Int-and shall be deemed effective this day of /Lu 2007 (" Effective Date"), by and between the CITY OF INDIO, a California Municipal Corporation ("City") and SCC/ Indio Citrus Ranch, LLC, a Delaware Limited Liability Company ("Developer"). City has designated this Agreement number (DA 06-10- 22) City and Developer are sometimes referenced together herein as the " Parties." In instances when a provision hereof applies to each of the Parties individually, either of the Parties may be referenced as a Party." The Parties hereby jointly render the following statement asto the background facts and circumstances underlying this Agreement. RECITALS
A.
Developer currently
a
owns or has an option to purchase in fee real property comprising development area of approximately one thousand one hundred and eighty three (1,183) acres in size and located north of the City and west of Dillon Road (" Property"). The Property issituated in the Western Coachella Valley in an area generally known as the Indio Hills, a currently unincorporated area within the jurisdictional boundaries of Riverside County and partially within the City' s Sphere ofInfluence (" SOI"). The Assessor' s Parcel Numbers for the portion of the Property within the City' s SOI are: 601- 160- 001; 601- 160- 002; 601- 160- 004; 601- 170- 004; 601- 170- 005; 601- 170- 006; 601- 170- 007 and 601- 170- 008 (collectively, " Sphere Parcels").
The Assessor' sParcel Numbers for the portion of the Property outside the City' s SOI are: 745- 380- 001; 745- 380- 002 ; 745- 380- 003; 601- 031- 001; 601- 031- 003; 601- 031- 005; 601- 031- 006; 601- 031- 007; 601- 031- 008; 601- 031- 009; 601- 031- 010; 601- 041- 002; 601- 041- 009; 601- 041- 010; 601- 041- 011; 601- 032- 007; 601- 032- 008; 745- 401- 023; 745- 401- 027; 745- 401- 014; 745- 401- 019; 750- 260- 010; and 750- 260- 012 (collectively, " Outside Parcels"). Together, the Property including the Sphere Parcels and Outside Parcels is also referred to herein as the "Site." The Site is legally described in Exhibit " A" and graphically depicted in Exhibit " A-1," both attached hereto and incorporated herein by reference. SCC/
INDIO CITRUS RANcj , C/ CITY OF INDIO DEVELOPMENT AGREEMENT PAGE 1of 41 CITY'
S INITIALS DEVELOPER' SINITIALS
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 319 of 953 B. City has filed, or will be filing, and is seeking the approval of an application to expand the City' s SOI as well as an annexation application pertaining to the entire Site (" Applications") through the Local Agency Formation Commission for Riverside County (" LAFCO") pursuant to the Cortese Knox Local Government Reorganization Act of 1985, California Government Code (" CGC") § 56000 et seq. LAFCO is processing these Applications concurrently with City' s consideration of this Agreement and various land use entitlements detailed below. To the extent this Agreement concerns land outside the City' s current SOI, this Agreement shall be deemed a pre -annexation agreement. Furthermore, the Parties intend that this Agreement shall be amended to include the Outside Parcels subject to its terms as a Development Agreement.
C. Developer is proposing to develop and facilitate the future development of the Site as a project currently titled " Citrus Ranch" which is intended to include multiple residential neighborhoods totaling approximately 3, 053 residential units ranging in density from 2. 5 to 15 dwelling units per acre, a boutique hotel located on a site approximately 5 acres in size, roughly 269 acres of open space, a golf course and related facilities covering roughly 230 acres ( not counted toward the open space just referenced), and a neighborhood community center inclusive of approximately 9, 000 square feet of usable area, owned and maintained by Property residents.
D. More specifically, Developer presently intends to develop the Site to incorporate a total of twenty nine ( 29) residential planning areas consisting of the following components: ( 1) fourteen ( 14) different planning areas of low density residential housing ( Planning Areas 1, 2, 3, 6, 14, 16, 17, 18, 19, 20, 21, 22, 23, and 25) with approximately 959 dwelling units on approximately 263 acres distributed throughout the Site; ( 2) eleven ( 11) different planning areas of medium density residential housing ( Planning Areas 4, 5, 7, 8, 9A, 13, 15, 24, 26, 27 and 28) with approximately 1, 347 dwelling units on approximately 260 acres; ( 3) four ( 4) different planning areas of high density residential housing ( Planning Areas 98, 10, 11 and 12) with approximately 747 dwelling units on approximately 53 acres. In addition to these residential planning areas, the Property incorporates the following components spread over eight ( 8) additional planning areas: ( 4) one ( 1) planning area consisting of an 18- hole, par 72 golf course with a length of approximately 7100 yards on approximately 233 acres ( included within Planning Area 29 (" Golf Course"); ( 5) a clubhouse facility of approximately nine thousand( 9, 000) square feet, including cart facility also included in Planning Area 29, (" Golf Clubhouse") ( the Golf Clubhouse and Golf Course may collectively be referred to as " Golf Facilities"); ( 6) a golf course maintenance yard located in Planning Area 35; ( 7) a neighborhood community center on approximately five ( 5) acres, that will provide a key gathering place for those living in and visiting the community located in Planning Area 32; 8) subject to Section 5. 16 below, a boutique hotel of approximately 50- 75 rooms on approximately 5 acres located in Planning Area 33; ( 9) a fire station located in Planning Area 36; ( 10) a well site located in Planning Area 34; ( 11) Community and Neighborhood Parks, as those terms are defined in the City' s General Plan, located
SCC/ INDIO CITRUS RANCH / CITY OF INDIO DEVELOPMENT AGREEMENT PAGE 2 OF 41
CITY ' S INITIALS/ DEVELOPER' S INITIALS frril
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 320 of 953 throughout the residential planning areas and in Planning Area 30, and ( 12) open space in Planning Area 37. Collectively, these residential and non- residential components are referenced herein, in the aggregate, as the "Project." E. California Government Code (" CGC") § 65864, et seq. ( the " DA Statutes"), provide that the legislative body of a city may enter into a development agreement for the development of real property in order to vest certain rights in the developer and to meet certain public purposes of the local government. Pursuant to CGC § 65865, on May 17, 1989 City adopted Indio City Council (" Council") Resolution 5294 establishing procedures and requirements for the approval of development agreements (" DA Resolution"). California law allows municipalities and property owners or developers to enter into binding and enforceable annexation agreements similar to the agreement reviewed and upheld by the court in Morrison Homes Corporation v. City of Pleasanton ( 1976) 58 Cal.App. 3d 724. This Agreement is entered into both as a development agreement, pursuant to the DA Statutes and as a binding and enforceable annexation agreement pursuant to California case law.
F. City has adopted and has now in effect its general plan entitled the City of Indio General Plan 2020 (" General Plan"); in connection therewith, City has approved and certified an environmental impact report.
G. The City specified a portion of the Site as part of City' s SOI in adopting the General Plan. The portion of the Site that is within the City's SOI is currently designated as Open Space" in the General Plan.
H. The City and Developer are cooperating in processing City' s LAFCO Applications as to an expansion of the City' s SOI to include the entire Site as well as to effectuate the Site' s annexation into the City. Upon expansion of the SOI to include the Outside Parcels, . the Outside Parcels shall be designated " Specific Plan" in the City' s General Plan.
I. On November 14, 2005, Developer initiated an application to City for this Agreement, designated ( DA 06- 10- 22) by City, and certain related land use entitlements and development rights via approval of: ( a) a General Plan Amendment, designated ( GPA 05- 11- 74) by City, changing the General Plan land use designation of the Sphere Parcels to " Specific Plan" and establishing the General Plan land use designation of the Outside Parcels as " Specific Plan" ( the GPA"), ( b) a Specific Plan, designated ( CSP 05- 11- 16) , by City (" SP"), ( c) a large lot tentative tract map, designated 34485 ( TM 06- 10- 447) by City (" LLTTM"), ( d) a tentative tract map covering Planning Areas 4 through 9A and inclusive of approximately 457 residential units, designated 35057 ( TM 06- 10- 448) by City TTM"), ( e) an Environmental Assessment, designated ( EA 05- 11- 443) by City, inclusive of an Environmental Impact Report (" EIR"), incorporating a mitigation monitoring and reporting program (" MMRP") and conforming to the specifications of the California Environmental Quality Act (" CEQA"), California Public Resources SCC/ INDIO CITRUS RqN / LLC/ CITY OF INDIO DEVELOPMENT AGREEMENT 7 ' PAGE 3 OF 41
CITY' S INITIA /_ DEVELOPER' S INITIALS_/
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 321 of 953 Code § 21000 et seq., and the CEQA guidelines, title 14 of the California Code of Regulations, chapter 3, § 15000 et seq. Collectively, Developer' s application for this Agreement and its related applications for the GPA, SP, LLTTM, TTM and EIR inclusive of the MMRP are referenced in the aggregate as the " Entitlement Applications," while the approvals granted as requested by said applications in connection with the Site' s development as intended and proposed are referenced in the aggregate as the " Development Rights" or the "Project Approvals." J. City has given public notice of its intention to adopt this Agreement, has conducted public hearings thereon pursuant to CGC § 65867 and the DA Resolution. City has found that the provisions of this Agreement and its purposes are consistent with the objectives, policies, general land uses and programs specified in City' s General Plan as amended via the GPA, the SP, the LLTTM, the TTM, the EIR inclusive of the MMRP, and the DA Resolution.
K. Th e Project will require the construction of substantial public and private improvements, some of which improvements will benefit the Project, other property/developments within the Site' s vicinity and the entirety of City. The Parties note development risks and uncertainties associated with the nature and scope of this long- term Project. Each of the Parties must overcome its own challenges. The City must successfully provide the Project' s future residents and all of its citizens with high quality public facilities, infrastructure and services during and beyond the intense period of rapid growth contemporaneous with this Agreement' s negotiation and execution. Developer must address the present and future cost of providing public improvements and plan for market fluctuations impacting development and real property sales. Either of the Parties could easily be discouraged and deterred from making the long- term commitments inherent to the process of developing the Project on the Site. Both Parties desire to enter into this Agreement in order to reduce and/ or eliminate as many development risks and uncertainties as possible.
L. As permitted by law through the City' s consideration and approval of the Entitlement Applications filed by Developer and/ or by this Agreement, the Parties desire to establish design and development standards of the Project, the permitted uses for the Project, and to identify the scope of improvements to be required for, and as a result of, the Project and, where appropriate, to provide for the payment or the specification of certain fees.
M. City, in entering into this Agreement, acknowledges that certain City obligations hereby assumed shall survive beyond the terms of the present Council members, that this Agreement will serve to the extent legally permissible, bind City and future Councils to the obligations hereby undertaken, and that this Agreement shall limit the future exercise of certain governmental and proprietary powers of City with respect to the entirety of the Site. By approving this Agreement, the Council has elected to exercise certain governmental powers at the time of entering into this Agreement rather than defer its actions to some undetermined future date. The
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 322 of 953 terms and conditions of this Agreement have undergone extensive review by City and the Council and have been found to be fair, just and reasonable. City has concluded that the pursuit of the Project will serve the best interests of its citizens and that the public health, safety and welfare are best served by entering into this obligation. Developer has represented to City that it would not consider or engage in the Project absent City approving the Entitlement Applications and this Agreement, thereby assuring Developer that it will enjoy the Development Rights.
N. This Agreement will promote and encourage the Site' s development by providing Developer and its lenders/ investors with a greater degree of certainty of Developer' s ability to expeditiously and economically complete the Project. The Parties agree that the consideration to be received by City pursuant to this Agreement and the rights secured to Developer hereunder constitute sufficient consideration to support the mutual and respective covenants and agreements of the Parties. By entering into this Agreement, City desires to vest in Developer certain Project Approvals as specified in this Agreement
O. The Parties jointly understand, intend and agree that this Agreement shall, to the extent legally permissible, serve and be the equivalent of a " Pre -Annexation Agreement" by and between them, and may be interpreted and relied upon as such.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1. Binding Effect of Agreement. The Parties agree that the Recitals above are true and correct and intend to be bound by same. The Parties further agree to the incorporation by reference herein of said Recitals, together with all definitions provided and exhibits referenced therein. This Agreement pertains to the Site as described in Exhibit "A" and Exhibit "A- 1." The burdens of this Agreement are binding upon, and the benefits of this Agreement inure to, all successors -in -interest of the Parties and constitute covenants which run with the Property. In order to provide continued notice thereof, the Parties will record this Agreement in the public records of Riverside County.
The word " Developer" as previously defined and used herein shall include successor owners, apart from government or quasi -public agencies, of any portion of the Site.
2. Relationship of the Parties. It is hereby specifically understood and acknowledged that the Project is a private project and that neither City nor Developer will be deemed to be the agent of the other for any purpose whatsoever. City and Developer hereby renounce the existence of any form of joint venture or partnership between or among them and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making City and Developer joint venturers or partners.
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3. Term. Except as otherwise specified herein and subject to earlier termination or extension as hereinafter provided, the " Term" of this Agreement shall begin as of the Effective Date and terminate twenty (20) years from the recordation date of the LAFCO Certificate of Completion as to " Citrus Ranch Annexation" as that term is defined below in Section 20. 1 (" Annexation Date"). The Annexation Date shall be no later than June 30, 2008 or such subsequent date as may be determined based upon intervening " Development Limitations' as that term is defined below in Section 3. 1 or the Parties' written agreement ( the " Annexation Deadline"). In the event that either the Citrus Ranch Annexation or another successor annexation effort relative to the Site is not complete by the Annexation Deadline, either Party may terminate this Agreement as a matter of right upon written notice to the other per Section 25 below. Notwithstanding the length of the Term, the provisions of this Agreement that limit increases in City' s Fees," i.e., Section 9 below, shall expire and not be enforceable after the end of the tenth ( 101n) year after the Annexation Date.
3. 1 Term Extension — Third Party Issues. Notwithstanding the Parties' expectation that there will be no limit or moratorium upon the Project' s development or the issuance of building or other development related permits (" Development Limitation") during the Term, the Parties understand and agree that various third parties may take action causing a de facto Development Limitation. Consequently, the Term and obligations imposed pursuant to this Agreement shall be extended day for day for any delay arising from or related to any of the following potential Development Limitations for a time equal to the duration of that delay occurring during the Term:
3. 1. 1 ( i) changed conditions, changes in local, state or federal laws or regulations, floods, earthquakes, moratoria enacted by governmental entities or agencies, litigation challenging this Agreement or the project approvals, injunctions issued by any court of competent jurisdiction, acts of the public enemy, epidemics, quarantine, restrictions, freight embargoes, lack of transportation, unusually severe weather, inability to secure or delays in securing labor, fuels, materials, services or tools, delays due to the existence or remediation of hazardous materials, acts of God, riots, war or acts of terrorism; ( ii) strikes or other labor problems, or delays of any contractor, subcontractor or supplier; ( iii) act( s) or omission( s) of any third party governmental agency, quasi public entity or public utility, and beyond the reasonable control of Developer, excluding delays that are related to the normal and customary processing of future development approvals or any requested modifications of the Project Approvals, or ( iv) other matters beyond the reasonable control of Developer.
Each Party shall promptly notify the other Party to this Agreement upon learning of any Development Limitation. If any Party to this Agreement is prevented by any Development Limitation from performing its obligations under this Agreement, then on the condition that the Party claiming a Development Limitation ( a) did not cause said event( s) and ( b) said event( s) was beyond said Party' s reasonable control, the time for
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 324 of 953 performance by said Party of its obligations under this Agreement shall be extended day for day by a number of days equal to the number of days of that said Development Limitation continued in effect, or by the number of days it takes to repair or restore the damage caused by the Development Limitation to the condition which existed prior to the occurrence, whichever is longer, or longer as the Parties may mutually agree.
3. 2 Term Extension — Request of Developer. This Agreement may be extended for one ( 1) additional ten ( 10) year period following the expiration of the initial Term ( as it may be extended pursuant to Section 3. 1 hereinabove) (" Developer's Extension") subject to the absolute discretion of the City, upon the occurrence of all of the following:
3. 2. 1 Developer shall give written notice to City no later than one hundred twenty ( 120) days before the expiration of the Term that Developer desires to extend this Agreement for the additional ten ( 10) year period;
3.2.2 At the time of the notice described in Section 3. 2. 1 above, Developer shall have applied for and obtained certificates of occupancy for at least fifty 50%) of the residential dwelling units described by the Project Approvals; and
3. 2. 3 Developer shall not then be in default with respect to any provision of this Agreement, any of the Project Approvals, or any subsequent agreement or understanding between the Parties, provided that City had previously provided notice to Developer of said default by Developer pursuant to the provisions of this Agreement and that said default has remained uncured for the period to cure provided therein.
3. 2. 4 A Developer' s Extension shall only be considered by City upon Developer' s application to the City Council and upon a public hearing as to same.
4. Vesting of Project Rights.
4. 1 Vested Rights to Develop. Developer shall have the vested right to develop the Project during the Term of this Agreement in accordance with the SP and other Project Approvals. City covenants that it will not initiate, so long as this Agreement remains in effect, any amendment to the General Plan, the Project' s zoning as established by the SP, or any other Development Rights in a manner that Developer reasonably deems contrary to its interest in, or use of the Site. Any such right shall, however, be subject to the authority of other public agencies over which City has no legal control, and nothing herein shall be deemed to constitute any representation, warrant or undertaking by City that such agencies will not exercise their authority to delay, defeat, modify or otherwise change Developer' s rights with respect to the Project.
City will use its best efforts to cooperate with the Developer in obtaining such approvals, provided that City is placed at no expense ( whether out of pocket or in terms of staff time) in connection therewith.
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4. 2 Legally Binding Contract. It is the intent of City and Developer that this Agreement is a legally binding contract which shall prevail over the provisions of any subsequently enacted moratoria, statutes, ordinances, limitations, or other measures, whether or not enacted by City, or under the authority of City by voter initiative or referendum, and whether or not such initiative, moratorium, referendum, statute, ordinance, limitation, or other measure relates, in whole or in part, to the rate, timing, sequence, or phasing of the development or construction of all or part of the Project or the improvements or affecting parcel or subdivision maps, building permits, occupancy certificates, or other entitlement to use the Site which are issued by City, subject only to the rights and powers reserved to City under the terms of this Agreement and the requirements of State Law.
4. 3 Existing Rules to Govern. In accordance with the terms of CGC 65866, the Parties agree that the General Plan, the SP, the Project Approvals, any Maps and any existing or future land use entitlements insofar as they relate to the Site, together with any conditions to approval attached to any of the foregoing, shall be governed by the subdivision laws, ordinances, rules and regulations in effect as of the Effective Date ( the " Existing Regulations"). Such Existing Regulations shall continue to apply to the Project and to the reconstruction of any Project improvements damaged or destroyed from any cause. Except as otherwise provided in this Agreement, no amendment, revision of, or addition to Project Approvals constituting a change in the Existing Regulations that would effect the Project or increase the obligations or decrease the rights of Developer hereunder (" Regulatory Change") shall be made without Developer's consent, whether adopted or approved by City' s Council or any office, board commission or other agency of City, or by the people of City through an initiative measure. Furthermore, no such Regulatory Change shall be effective or enforceable by City with respect to the Project or the Site, nor against Developer or its successors or Assignees. However, nothing in this Section shall preclude City: ( i) from applying new rules, regulations, and policies described in Section 4.4 (" New Regulations"), or ( ii) from denying or conditionally approving any subsequent development project application on the basis of Existing Regulations or New Regulations.
4. 4 City Authority, Limitations, Reservations and Exceptions.
Notwithstanding any other provision of this Agreement, legislative and/ or administrative action by City in any of the following subject areas will be viewed by the Parties as New Regulations, and as such shall fully apply to the development of the Site.
4. 4. 1 Procedural Provisions. Modifications to City' s Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, excluding those matters referenced in Section 16 of this Agreement.
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4. 4. 2 Uniform Codes. Modifications or additions to City' s regulations governing construction standards and specifications when such modifications are made to bring the City' s regulations into compliance with statewide standards, such as City' s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code.
4. 4. 3 Regulation by Consent. Modification to City' s regulations that are in material conflict with the Project Approvals, provided Developer has given written consent to the application of such regulations to the development of the Site.
4. 4. 4 Police and Emergency Power. The Parties acknowledge and agree that City can not contractually limit its own police power, its power to address actual or potential threats to public health, safety or welfare, including but not limited to environmental regulations such as PM- 10, NPDES, etc., or its emergency authority or powers. The foregoing limitations, reservations and exceptions are intended to reserve to City all of its powers that cannot be limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City all such power and authority which cannot be contractually restricted as a matter of law. To the extent possible, any such regulations shall be applied and construed so as to provide Developer with the rights and assurances provided under this Agreement.
5. Development of the Site.
5. 1 Conditions of Development. The Site and the Project shall be developed in conformance with the Project Approvals including this Agreement except for such modifications as may be mutually agreed upon and legally implemented by the Parties. All matters of density, permitted uses, the mixes of such uses and all matters permitted under the SP shall be and remain as permitted, subject to the conditions stated therein, during the Term. During the Term, City will consider for approval Project related land use entitlements, including all tentative and final maps associated with the Project and all site plan and design review applying Existing Regulations.
5. 2 Performance Delays during Development The time for performance of any obligation hereunder by Developer or City, arising from or related to any Development Entitlement or other approval required in connection with the Project, shall be extended by the period of time that any of the Development Limitations described hereinabove exist and/ or prevent performance of such obligations.
5. 3 Procedure for Development. By the Effective Date, City will have approved the LLTTM and the TTM as Project Approvals. The Parties understand and agree that as Developer implements the Project, additional tentative and final maps covering the entire Project (" Planning Area Maps") will also, by necessity, be presented and approved. Each of these Planning Area Maps will cover one ( 1) or a portion of one 1) or more of the Planning Areas and be consistent with the requirements of the SP.
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 327 of 953 One ( 1) or more parcel maps may also prove necessary during the Project' s development.
5A Phasing - Improvements and Facilities. Developer may phase its subdivision of the Site and/ or any of the Planning Areas by applying for Maps covering less than the entire Site or some discreet portion of one ( 1) of the Planning Areas.
Attached hereto as Exhibit " B" and incorporated herein by this reference is an initial phasing plan for construction of the Project, which may be modified from time to time as set forth herein. The phasing plan in effect during any given time period shall be referred to as the " Phasing Plan".
5.4. 1 Timing of Infrastructure Construction. " Infrastructure Construction" shall mean the infrastructure improvements such as streets, sewer, water, storm drains, landscaping, etc., also referenced below as " Public Improvements" in Section 5. 14. All Infrastructure Construction for a phase shall be substantially completed on or before the issuance of the first Certificate of Occupancy of the subsequent phase and under all circumstances, absent a Development Limitation, in compliance with Exhibit " 13- 1" attached hereto. With regards to the final phase, Developer shall bond or construct all Infrastructure Construction on or before the issuance of the last Certificate of Occupancy for the final phase.
5. 4. 2 Deviation from Phasing Plan. The Parties acknowledge that Developer cannot at this time accurately predict the time schedule within which the Project will be developed, or the order in which particular phases or other portions of the Project will be developed, and that the rate, timing, order, and sequence of the development of the Project will depend on numerous circumstances beyond Developer' s control, including, without limitation, market trends, demand, the condition of capital markets, interest rates, availability of financing and other economic and social factors. Therefore, so long as the Project is developed in accordance with the Project Approvals (including the SP) and the applicable rules and regulations ( as these may be amended from time to time pursuant to this Agreement), Developer shall not be required to initiate or complete development of the Project, or any particular phase or portion of the Project, within any specific period of time. Subject to the provisions of this Agreement, including but not limited to Sections 5.4 and 5.4. 1, Developer shall develop the Project in accordance with the Developer' s own time schedule as such schedule may exist from time to time, and Developer may determine which part of the Project shall be developed during each phase of the Project, it being the intent of the Parties hereunder to cure any deficiency in this Agreement by reason of any failure to provide for the timing of development by acknowledging and providing that Developer shall have the right to develop the Project in such order and at such rate and at such times as Developer deems appropriate in the good faith exercise of its objective business judgment. It is acknowledged, however, that any deviation from the project phasing set forth in the Phasing Plan agreed upon by the Parties may require modification of the timing and order of providing public facilities as provided herein. Developer shall give City written notice of any intended deviation from the phasing set forth in the Phasing SCC/ INDIO CITRUS RAN / CITY OF INDIo DEVELOPMENT AGREEMENT PAGE 10 OF 41
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 328 of 953 Plan, as modified by any prior, noticed deviations, such notices to include a revised phasing plan. City shall notify Developer of any required change in the timing or phasing of the providing of public facilities and/ or dedications or conveyances required by Developer' s modification of the Phasing Plan within sixty days after ( i) Developer has submitted a notice with information which, in the good faith judgment of the City, is sufficient to permit City to make the necessary analysis of the required changes, or ( ii) the date of approval of any tentative tract map for the rephrased areas, whichever is earlier. Any changes required by the City shall be reasonably related to the changes in the phasing made by Developer. By entering into this Agreement, Developer shall not be obligated to build any structures, make any improvement, or otherwise develop the Project, provided, however, that Developer's failure to develop the Project shall not preclude application to the Site of the taxes or assessments levied by any financing district in accord with State law. Nothing in the preceding sentence shall be deemed to release Developer of the obligation to construct public improvements as required by this Agreement.
5. 4. 3 Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo ( 1984) 37 Cal.3d 465, that failure of the Parties to provide for the timing of development resulted in a later adopted initiative restricting the timing of development prevail over the Parties' agreement, it is the intent of the Developer and the City to cure that deficiency by acknowledging and providing that, notwithstanding anything to the contrary in the Project Approvals or this Agreement, the Developer shall have the right ( without the obligation) to develop the Project in such order and at such rate and at such time as the Developer deems appropriate within the exercise of its sole subjective good faith business judgment and within the general performance schedule set forth in the Phasing Plan, as that plan may be modified. The City acknowledges that such a right is consistent with the intent, purpose and understanding of the Parties hereto and that without such a right development of the Project would be subject to uncertainties sought to be avoided by the DA Statutes and this Agreement.
5. 5 Golf Course and Golf Clubhouse. Subject to Section 19 of this Agreement, Developer shall construct an 18 hole privately owned Golf Course and Golf Clubhouse and shall make the course available for play by Indio residents at current rack rates ( the daily fee structure) charged to residents of the Project at any particular time. The Parties agree that the Golf Course and Golf Clubhouse shall be constructed in accord with Exhibit" B- 1."
5. 6 Density Transfers. The Parties recognize that with the large number of planning areas and phases, the number of dwelling units approved and completed in each area may vary as the Site is developed. Subject to the SP provisions addressing density transfers, incorporated by this reference herein, Developer shall have the right to increase the density and intensity of the use of any portion of the Project by a transfer of dwelling units from any other portion of the Project in excess of the density and intensity limitations specified under the Project Approvals provided that SCC/ INDIO CITRUS RANCH„ C CITY OF INDIO DEVELOPMENT AGREEMENT f' AGE 11 OF 41
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 329 of 953 the ultimate densities shall be consistent and not exceed the total density set forth in the SP. Furthermore, the Parties understand and agree that Developer shall neither seek nor implement any transfer of density in any area subject to indebtedness associated with a Community Facilities, Assessment or other District after the issuance of bonds corresponding to the area in question. Nothing herein shall be deemed or interpreted to permit any increase in the overall density or intensity of use of the Project as a whole unless provided for in the SP or permitted by State Law, and any density transfer shall fully conform with the requirements of the SP.
5. 7 Premium Development Services. City hereby covenants that in partial consideration for Developer's promises herein, City will process the Project Approvals in an expedited manner conforming to all applicable law. City specifically covenants and agrees that after approval of the Project Approvals, upon Developer's initial completion of any Map application and payment of all City application and processing fees, City will internally assign and determine the completeness of any Developer Map application, improvement plans, building or engineering review within twelve ( 12) working days from submittal by Developer ( the " Completeness Deadline").
City further promises that it will complete the first plan check related to any Map within thirty ( 30) calendar days after the Completeness Deadline ("' Ist Plan Check Deadline") and use best efforts to complete any subsequent plan check( s) deemed necessary Subsequent Plan Check"), after the first, within fifteen ( 15) calendar days after the later of the 1sl Plan Check Deadline or the completion of the most recent Subsequent Plan Check. City further promises that under no circumstances will the completion of any Subsequent Plan Check require more than thirty ( 30) calendar days. Above and beyond the formal timeline stated herein, City will use best efforts to address questions and concerns raised by Developer representatives at the " counter" at City Hall as expeditiously as reasonably possible. If City cannot regularly meet the time requirements set forth in this Section, the City, at Developers' request, will immediately contract for outside plan -check services to perform such services on a timely basis as set forth below.
5. 7. 1 Private Contract Planners/ Plan Checkers. City shall process all applications filed in connection with the Project as expeditiously as possible. If requested by Developer, City may within its discretion utilize private contract planners, plan checkers or inspectors and any other available means (" Private Contractors') to expedite the processing of the Project applications, including concurrent processing of such applications by various City departments. City reserves absolute discretion in the selection of Private Contractors to assist in the Project' s processing. Developer shall reimburse City, in conformance with City' s applicable policies and procedures, for all costs and expenses of Private Contractors plus any administrative cost to City of integrating services by Private Contractors into the Project' s development processing.
5. 8 Map Extension. Pursuant to CGC § 66452. 6( a), the City hereby exercises its discretion and covenants that any City approval of a tentative tract, final or parcel map ( in the alternative, a " Map"), or a portion thereof, prepared with respect to
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 330 of 953 the Site' s development shall remain effective for a period of time concluding upon the expiration of the Term. Furthermore, any City approval of a Map shall be extended for an additional period of time equal to the period of any extension of the Term pursuant to this Agreement. City agrees that any such Map extension shall occur automatically upon the date when the Map in question would otherwise expire. City shall not require Developer to submit an application or any other request for a Map extension to City in order for any such extension to occur or to be valid and enforceable. City further agrees that in approving Maps or extending the duration of Maps hereunder, City shall not impose any: ( a) additional conditions or fees, ( b) changes in design, ( c) changes in density, or ( d) other policies, rules or regulations that differ from the Project Approvals or Existing Regulations, except as otherwise permitted under this Agreement. Map review and approval shall be carried out by the City in accordance with the Existing Regulations.
5. 9 CEQA. Because the Project has already been extensively analyzed in the EIR, no new CEQA analysis for future approvals, including individual maps, buildings or phases of the Project shall be required, provided that: ( a) such buildings or phases comply with the terms and conditions of the SP, inclusive of any mutually approved future amendments thereof, and other Project Approvals and this Agreement, and ( b) none of the conditions are present which require further environmental review under CEQA, in particular, Public Resources Code Section 21166.
5. 10 Senate Bill 221. The Site includes a " subdivision" as that term is defined in CGC § 66473.7( a)( 1). Neither the Site nor any part thereof is exempt from the requirements of Senate Bill 221, codified at CGC § 66473. 7, a law generally requiring that any city ' s approval of a tentative map for a new subdivision of more than five hundred ( 500) units contain a condition that proof of the availability of a sufficient, reliable source of water be obtained from the appropriate water purveyor. The LLTTM and the TTM shall contain a condition that a " sufficient water supply" per CGC 66473. 7( a)( 2) shall be available to the Site/ Project. Developer has satisfied this condition by requesting and obtaining proof of the availability to the Site/ Project of a sufficient water supply. On December 6, 2006, the Board of the Indio Water Authority, approved a water supply assessment prepared in conformance with Senate Bill 610, codified at California Water Code Section 10910 et seq. and incorporating a water verification letter prepared in accordance with SB 221. Developer shall provide City with this water verification letter and thus demonstrate the existence of a sufficient water supply available to the Site/ Project, or the phase being developed, prior to Council approval of the final map or maps for any phase of the Project.
5. 11 Fire Station. As a condition precedent to the recordation of the first final Map corresponding to any area of the Project, Developer will, at Developer' s own cost, purchase and convey approximately two ( 2) acres of land ( the " Fire Station Parcel") and transfer same to the City to permit the City to develop a two ( 2) bay fire station. Developer shall receive a full fee credit against its obligation to pay the fire SCC/ INDIO CITRUS RA , / CITY OF INDio DEVELOPMENT AGREEMENT Pace 13 of 41
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 331 of 953 services portion of the Fire and Police Capital Impact Fees described in Code of Indio Section 33. 068( C) and adopted in Section 8C of the " Fee Ordinance" as that term is defined below in Section 5. 14. 2, upon said fee becoming due.
5. 12 Quimby Fees. The Parties understand and agree that land and improvements for the numerous parks, trails, and recreational facilities identified in the SP will have a value that exceeds Developer's obligation pursuant to City' s Quimby ordinance, No. 1325 (" Quimby Fees"). Accordingly, the Parties agree that Developer' s dedication to City and/ or development of same fully satisfies its obligations under City' s Quimby ordinance, Code of Indio Section 156. 130 et seq.
5. 13 Art in Public Places Fee. Developer understands and agrees that the Project is fully subject to the City' s Art in Public Places Fee as specified in Code of Indio Section 159. 840 et seq.
5. 14 Public Improvements. Developer shall construct and install the public improvements and infrastructure required in connection with the Project (" Public Improvements") in conformance with standards set forth in the Project Approvals or subsequent approvals and the schedule specified in Exhibit " B- 1." Subject to Section
5. 4, Developer will make these Public Improvements in phases concurrent with the development of each phase of the Project and in accordance with the Phasing Plan.
The required Public Improvements are described in Exhibit "C" attached.
5. 14. 1 Additional Public Improvements. In addition to the Public Improvements set forth in Exhibit "C," Developer agrees to the following:
a) Developer shall contribute fifteen million dollars
15, 000, 000.00) drawn from any " Financing District," as that term is defined below in Section 8. 1, formed upon Developer' s petition. Said funds may be used by City in the construction of any eligible facility, including, but not limited to, park, drainage or water facilities, at the City' s discretion. The schedule for Developer' s disbursement of this sum shall be as follows:
i) Developer shall advance City the sum of two
million five hundred thousand dollars ($ 2,500, 000.00) ( the " Advance") within five ( 5) business days of securing the first grading permit corresponding to the commencement of the first phase of the Project' s development in any residential or golf related planning area;
ii) Developer shall pay City an additional two
million five hundred thousand dollars ($ 2, 500, 000. 00) ( the " First Payment") drawn from the Financing District at the time of the Financing District' s first issuance of bonds corresponding to the first phase of the Project' s development. Upon issuance of this First Payment, Developer may reimburse itself for the Advance with funds drawn from the Financing District;
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 332 of 953 iii) Developer shall pay City an additional five
million dollars ($ 5, 000, 000. 00) drawn from the Financing District at the time of the Financing District' s second issuance of bonds corresponding to the second phase of the Project's development; and
iv) Developer shall pay City an additional five
million dollars ($ 5,000, 000.00) drawn from the Financing District at the time of the Financing District' s third and final issuance of bonds corresponding to the third and final phase of the Project' s development.
b) Developer shall construct two ( 2) North and two ( 2) South paved and striped travel lanes on Dillon Road, consistent with General Plan specifications, extending South from the Project' s Southern boundary to Avenue 44.
Dillon Road adjacent to the Project shall be constructed with no median per the SP, with the following stipulation regarding the portion of Dillon Road which lies between Avenue 44 and the Dike (" Dillon Lakes Frontage"):
i) If and when the developer of Tentative Tract
Map 29714, designated TM- 00- 3- 338 by the City (" Dillon Lakes"), or its assignees, bond for the improvement of the Dillon Lakes Frontage, per the Conditions of Approval dictated by the City in the above -referenced entitlement, Developer' s obligation to construct and/ or complete the Dillon Lakes Frontage shall transfer to the developer of Dillon Lakes, with reimbursement to Developer by Dillon Lakes for any portion of the Dillon Lakes Frontage already constructed to the extent that City may be able to facilitate same;
ii) In the event that the City releases Dillon Lakes
from its obligation to construct the Dillon Lakes Frontage, City shall reimburse Developer for the cost of construction for the same.
c) Developer is obligated to design, construct, and
provide right of way for three ( 3) Indio Water Authority (" IWA") water storage facilities on sites deemed acceptable to the City Engineer (" Water Storage Sites"). Each of the Water Storage Sites will contain the tank( s) and booster station equipment adequate to serve three ( 3) pressure zones. Furthermore, the Water Storage Sites may be large enough to accommodate future IWA zone expansion and the transmission lines corresponding to each of the Water Storage Sites shall be sized to serve the zone( s) to which they transmit water.
5. 14. 2 Development Impact Fees Payable. City' s Development impact fees currently imposed are identified in Ordinance number 1463 adopted by the City Council on May 17, 2006 ( the " Fee Ordinance"). Developer hereby agrees to make full payment of the following fees in accord with the Fee Ordinance subject to Section
9. 1 below: ( a) Public Building Fee, described in Code of Indio Section 33. 068( A) and adopted in Section 8A of the Fee Ordinance; ( b) the Police services portion of the Fire SCC/ INDIO CITRUS RANCFj,' / CITY OF INDIO DEVELOPMENT AGREEMENT AGE 15 OF 41
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5. 14. 3 Development Impact Fees Subject to Developer Credits.
In consideration for Developer, at its own cost and expense or through a community facilities district, providing City with the Public Improvements for the Project, Developer shall receive a credit towards the payment of development impact fees otherwise due and payable by Developer as fees arising from or related to Development of the Project Developer's Fee Credit"). The fees for which Developer shall receive credit for are as follows: ( a) Water Fee, described in Code of Indio Section 33. 068( D) and adopted in Section 8D of the Fee Ordinance ( the " Water Fees") — Developer' s construction and installation of all IWA back -bone water system improvements and facilities serving the Project shall serve as a full credit against all Water Fees otherwise due and payable water facilities to be constructed are depicted in Exhibit " C- 1" attached hereto); ( b) Traffic Signal Fee, described in Code of Indio Section 33. 068( G) and adopted in Section 8G of the Fee Ordinance ( the " Traffic Signal Fees") — an amount equal to Developer's actual costs of construction of three ( 3) traffic signals on Dillon Rd. located at Project entries shall be credited against Developer' s payment of Traffic Signal Fees. Developer agrees to pay any difference between such actual costs and the Traffic Signal Fees otherwise due and payable ( the " Traffic Signal Difference"). Developer will, in compliance with the MMRP, pay its fair share of certain off -site traffic signals ( the " Fair Share Payment"). The Traffic Signal Difference will be applied in its entirety against Developer' s satisfaction of its obligation to make the Fair Share Payment. Developer shall pay in full any portion of the Fair Share Payment not covered by application of the Traffic Signal Difference, per unit, in accordance with the Fee Ordinance; ( c) Park Fee described in Code of Indio Section 33. 068( B) and adopted in Section 8B of the Fee Ordinance ( the " Park Fees") — Developer's construction, full improvement and dedication of public parks has a value in excess of the full Park Fees otherwise due and payable. Notwithstanding this fact, Developer voluntarily agrees that its otherwise full credit against Park Fees shall not include the portion of same attributable to City' s Sports Complex" as noted in Table 6. 4 of the City' s " Impact Fees Report AB1600 Fees" adopted in conjunction with the Fee Ordinance; ( d) Fire and Police Capital Impact Fee, described in Code of Indio Section 33. 068( C) and adopted per Section 8C of the Fee Ordinance (" Fire and Police Fees") - as is noted above in Section 5. 11, Developer will, at Developer' s own cost, purchase and convey the " Fire Station Parcel and transfer same to the City to permit the City to develop a two ( 2) bay fire station. Developer shall receive a full fee credit against its obligation to pay the fire services portion of the Fire and Police Fees.
5. 14. 4 Application of Fee Credits. Developer' s credits as specified in Section 5. 12. 3 (" Developer' s Fee Credit") shall be earned at the earlier of the construction of the relevant Public Improvement or the Developer providing the City with a performance bond for the construction of a Public Improvement. Developer' s Fee SCC/ INDIO CITRUS: ANC , kL ITY OF INDIO DEVELOPMENT AGREEMENT GE 16 OF 41
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 334 of 953 Credit may reflect actual " hard" and " soft" costs of design, construction and land acquisitions and/ or right of way acquisition costs arising from or related to Developer transactions with third parties in Developer' s performance under this Agreement as to the Public Improvements or the Additional Public Improvements.
5. 14. 5 Development Impact Fee Exemption. Based upon its unique location outside the tributary area of the City' s Master Planned Storm Drain system, the Project will not contribute to the flow within that system. There is no legal basis for requiring Developer' s payment of City' s Storm Drain Facilities Fee per Section 8e of the Fee Ordinance ( the " Storm Drain Fees"); accordingly, Developer shall be exempt from any obligation to pay Storm Drain Fees.
5. 15 Building Height and Size. All building heights, sizes, uses and densities for the Project shall be controlled by the SP.
5. 16 Hotel Site Development. The SP calls for the development, within Area 33 of the Site (" Hotel Site"), of a boutique hotel. Per this Agreement, the Parties note their understanding that another mutually acceptable and functionally equivalent use, subject to Indio' s Uniform Transient Occupancy Tax Ordinance codified in Code of Indio Section 34. 35 et seq., may comply with this provision. In the event that a hotel developer has not purchased the boutique hotel or functional equivalent from the Developer within three ( 3) years of Developer' s completion of the eighteen ( 18) hole Golf Course and Golf Clubhouse (" Golf Course Completion Date"), the Parties agree to the following: ( i) the Parties will retain a mutually acceptable MAI qualified appraiser to determine the fair market value of the Hotel Site for use as a hotel or functionally equivalent use, and make an appraisal report as to same (" Appraisal Report"); (ii) upon completion of the Appraisal Report, Developer and City shall have the right to commence efforts to market the Hotel Site to mutually acceptable qualified hotel developers at the value specified in the Appraisal Report; ( iii) Developer reserves the right to update the Appraisal Report after every six ( 6) month period that the Hotel Site remains unsold. In addition to these understandings, the Parties agree that on the five 5) year anniversary of the Golf Course Completion Date, if the boutique hotel has not been developed Developer shall be permitted to develop the Hotel Site in a manner consistent with the alternate residential use as set forth in the SP, and thereby effectively increase the total number of residential units in the Project to 3, 075. 6, Sewer Service. City will use its best efforts to assist Developer in obtaining sewer service for the Site from Valley Sanitary District.
7. Condemnation for Infrastructure. In the event the development of the Site requires the creation or use of property, easements, land or corridors for utilities, roads or other infrastructure that is not owned or controlled by Developer, the City, following all actions and procedures required under applicable law, will consider in good faith, but shall not be required, to institute condemnation of the necessary property within three 3) months of said request by Developer (" Condemnation"). Developer shall be required SCC/ INDIO CITRUS RANCH,,; / ITY OF INDIO DEVELOPMENT AGREEMENT GE 17 OF 41
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 335 of 953 to attempt to secure the necessary property or easements privately before requesting the City to institute condemnation proceedings. Developer understands and agrees that as a public agency, in addition to payment of the property purchase price, the City' s acquisition of the property through Condemnation will involve expenses not normally associated with privately negotiated property purchases, including without limitation, one or more Condemnation appraisals, owner and tenant relocation assistance, various Condemnation related public hearings, possible lawsuits, claims or demands by owners or other third parties, CEQA analysis and associated legal expenses ( collectively, the Condemnation Costs"). In the event the City elects to proceed with the Condemnation, the Parties will establish a mutually acceptable purchase price for the property ( the Purchase Price") and a cap on the Condemnation Costs ( collectively, the Condemnation Costs Ceiling" or " CCC"). Developer shall be responsible to pay the City the Purchase Price and all of the City' s costs of Condemnation up to the CCC.
7. 1 Waiver of Condition. In the event that the City declines or is prevented from exercising its power of condemnation to assist the Developer in satisfying a condition concerning the Project' s infrastructure, the condition shall be deemed waived by the City.
8. Improvements and Financing/ Community Facilities District.
8. 1 Public Financing of Improvements. The Developer intends to submit one or more petitions to the City requesting that the City establish one or more assessment and/ or community facilities districts to finance infrastructure, and other public improvements necessary to meet increased demands placed upon local agencies as a result of the development of the Project ( a " Financing District"). The City agrees to use its best efforts to implement such requests subject to applicable State and federal law, and the general considerations set forth in this Agreement. A list of eligible facilities is attached hereto as Exhibit "D".
8. 2 CFD For Police. Developer agrees to annex the Project into the City' s existing Community Facilities District (" CFD") 2004- 1 or a future similar district established to support the operation and maintenance of Police, Fire and Paramedic Facilities/ Services.
8. 3 CFD For Coachella Valley Recreation & Parks District. Developer agrees to annex the Project into the Coachella Valley Recreation & Parks District's CFD at a cost of $60. 00 per dwelling unit per year.
8. 4 Landscape and Lighting District. The Parties agree that the existence of a District formed pursuant to the Landscape and Lighting Act of 1972 codified in California Streets and Highways Code Sections 22500 et seq. (" LLD") can inure to the benefit of the Project and the health, safety and welfare of its residents insofar as it may provide for reliable and efficient funding for the operation and maintenance of public street lighting, landscaping in public right- of-way areas and/ or SCC/ INDIO CITRUS RANCd. L pppp ICITY OF INDIO DEVELOPMENT AGREEMENT L4'/ GE 18 OF 41
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 336 of 953 parks, etc. Developer, upon agreement with the City, may create a District specific to the Project that funds public street lighting, including but not limited to lighting along Dillon Road. Furthermore, Developer agrees to cooperate with City in the formation of a new City- wide LLD, encompassing all parcels within the City' s limits..
8. 5 Reimbursement of Costs. Any Financing District will provide for the reimbursement to the Developer of advances by the Developer and other costs incurred by the Developer that are directly related to the Financing District, such as the costs of legal counsel, special tax consultants, engineers, etc. The Developer agrees to promptly submit to the City a detailed accounting of all such costs incurred by the Developer at such time as Developer makes application for reimbursement. Such costs will be reimbursed to the Developer only to the extent the City' s bond counsel determines that such reimbursement is permitted under relevant State or Federal law, and that such costs are reasonable and necessary to the formation of a financing district, or otherwise were incurred in furtherance of the purposes of the financing district. A list of fees deemed eligible for reimbursement to Developer and/ or payment by a Financing District is attached hereto as Exhibit "E".
8. 6 District Principles. The following policies shall apply to any Financing District established by the City in connection with the Project:
8. 6. 1 2% Annual Escalator. The rate and method of
apportionment of any special tax to be levied within a community facilities district shall provide for an annual increase in the amount of the tax of two percent ( 2%).
8. 6. 2 2% Maximum Tax Rate. The total tax rate on property shall not exceed two percent ( 2%) of the appraised fair market value of the subject properties when taking into account all taxes and assessments on property of all jurisdictions, including, but not limited to the following:
a. Ad valorem property taxes levied by the County of Riverside the " County");
b. Voter approved ad valorem taxes levied by the County in excess of one percent ( 1 %) of the fair market value,
including voter approved debt service;
C. The maximum annual special taxes levied by any existing community facilities district for payment of bonded
indebtedness or on -going services;
d. Annual equivalent assessments levied for any special assessment district or maintenance district for the payment of bonded indebtedness or services; and
e. The annual equivalent maximum special tax for the any financing district formed pursuant to this Agreement.
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8. 6. 3 Separate Sale of Bonds: Term. The bonds may be sold in multiple series for each assessment district, community facilities district, improvement area or development phase. The term of the bonds may be up to thirty ( 30) years.
8. 6. 4 Largest Share CFD Policy. The local agency reasonably expected to have responsibility for providing facilities or services to be financed by a larger share of the proceeds of special taxes and bonds of a community facilities district than any other local agency shall have primary responsibility for formation of the district or an improvement area therein. The City will use its best efforts to cooperate with any other local agency that has such primary responsibility for formation of a district and to enter into a joint community facilities agreement with such local agency.
8. 7 Best Efforts Undertaking. The Developer acknowledges that the formation of any financing district is subject to protest hearings and, in some cases, voter approval. Although the City agrees to use its best efforts to form one or more financing districts in accordance with the foregoing, it shall incur no monetary liability for its failure to form any such financing district. City staff shall meet and confer with the Developer from time to time with respect to all major aspects of any financing district, but the final decision regarding all aspects of such financing districts shall be subject to the review and approval of the City Council.
9. Fees and Payments.
9. 1 Development Impact Fees to Be Applied. " Development Fees" shall mean all development related impact fees and charges of every kind and nature imposed by City and subject to City's exclusive control. Development Fees currently imposed are identified in Ordinance number 1463 adopted by the City Council on May 17, 2006. A schedule showing the Development Fees in place as of the Effective Date is attached hereto and incorporated by reference herein as Exhibit " F." Other development related impact fees and charges, assessed or collected by the City but determined, at least in part, based upon input from other government agencies and/ or authorities (" Outside Agency Fees") are identified in Exhibit " F- 1," attached hereto and incorporated herein by this reference. Except as otherwise provided in this Agreement, e. g., in Section 4. 4, the City shall not, whether through the exercise of its police power, the taxing power, or any other means: ( i) impose on the Project any Development Fees or other exactions, apart from existing or future Outside Agency Fees, not provided for in this Agreement or the Project Approvals; or ( ii) increase any Development Fees or other exactions applicable to the Project under this Agreement or the Project Approvals.
Any new Development Fees or increases to same imposed on a City- wide basis shall not be applicable to the Project except as specified by this Agreement.
9. 1. 1 Fees Increases. Notwithstanding Section 9. 1 above, to the extent that the City increases Development Fees set forth in Exhibit " F" through the first ten ( 10) years of the Term, such increases shall only be applied to the Project in accord
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Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 338 of 953 with City' s Ordinance number 1463, i.e., per increases in the adjusted Engineering News Record Construction Cost Index for the City of Los Angeles. Commencing upon the first day of the eleventh year of the Term, Development Fees applicable to the Project' s development and payable thereupon shall be established and increased in accord with applicable State law and City Ordinance, without reference to this Agreement.
9. 1. 2 Payment of Proportional Share of Fire Station. To help insure that the City' s established response time needs with respect to provision of fire services to the Project are met, Developer agrees to pay its proportional share of a fire station to be located on the Fire Station Parcel ( the " Fire Station Share"). The Parties agree that the size of the Fire Station Share will be determined prior to the issuance of the first building permit for a residential dwelling unit in the Project. The Fire Station Share shall become payable at the earlier of: ( i) the funding of the first improvement area of the Financing District ( lump sum payment), or ( ii) the issuance of the first building permit for a residential dwelling unit in the Project ( payment on a per unit basis at time of issuance of each permit).
9. 2 Processing Fees. Notwithstanding Section 9. 1 of this Agreement, City may charge processing fees for plan checks, land use, building permits, approvals of entitlements, inspections, and mitigation monitoring provided such processing fees are in force and effect on a City- wide basis at the time application is submitted for such permits, approvals or entitlements (" Processing Fees"). City may also increase Processing Fees based on any increase in the estimated reasonable cost to City of performing the work for which the particular Processing Fee is paid provided that such increases are made on a City- wide basis. Any such increase shall not exceed an amount which will compensate the City for the estimated reasonable cost and increases incurred, as permitted pursuant to CGC Section 54990. Anything herein to the contrary notwithstanding, City shall waive Processing Fees for any building or improvements to be built by Developer for conveyance to City or other government entity for fire protection.
10. Project Elements. The following elements of the Project are hereby approved:
10. 1 Permitted Uses of the Site. The Parties agree that, during the Term, the permitted uses across the Site' s Planning Areas shall conform to those consistent with the Project Approvals, including a diverse mixture of various housing types, corresponding amenities, including but not limited to an eighteen ( 18) hole Golf Course including a Golf Clubhouse incorporating a broad range of recreation uses, and a community center. All uses shall be constructed in conformance with the Project Approvals. The Parties enter this Agreement in reliance on the present provisions and conditions of approval of the Project Approvals and Existing Regulations. These provisions and conditions of approval shall not be modified or amended, except as specified herein, without the consent of City and Developer.
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10. 2 Permitted Density or Intensity of Use. Except as specified above in Section 5. 16, per the SP, the residential component of the Project includes approximately three thousand and fifty-three ( 3,053) dwelling units. City hereby confirms its approval of the EIR as a satisfactory analysis of all environmental impacts arising from and related to the Site' s development, inclusive of the Project' s uses, intensities and densities as specified in the Project Approvals, and an acceptable specification of legally adequate mitigation measures directed at said impacts. City further confirms Developer' s right to density transfers as specified in the SP.
11. Reservations and Dedications. It is hereby further understood and agreed that, City will require no reservations or dedications of land during the Term, except as set forth in this Agreement and the Project Approvals inclusive of their conditions of approval.
12. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and the Developer. It is anticipated due to the term of this Agreement that refinements to the Project Approvals may be appropriate with respect to the details of performance of the City and the Developer. To the extent allowable by law, the Developer shall retain a certain degree of flexibility as provided herein with respect to all matters, items and provisions covered in general under this Agreement and exhibits thereto. When and if the Developer finds it necessary or appropriate to make changes, adjustments or clarifications, the Parties shall effectuate such changes, adjustments or clarifications through operating memoranda (" Operating Memoranda") approved by the Parties in writing, which reference this Section of the Agreement. Operating Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial clarifications; therefore, public notices and hearings shall not be required. The City Attorney shall be authorized, upon consultation with the Developer, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute and amendment to the Agreement which requires compliance with the provisions of this Agreement pertaining to amendments. The authority to enter into such Operating Memoranda is hereby delegated to the City Manager, and the City Manager is hereby authorized to execute any Operating Memoranda hereunder without further City Council action.
13. Building Permits. Nothing set forth herein shall impair or interfere with the right of City to require the processing of building permits as required by law relating to any specific improvements proposed for the Project pursuant to the applicable provisions of the Code of Indio, inclusive of such Uniforms Codes as have been adopted in accord therewith, that are in effect at the time such permits are applied for; provided, however, no such permit processing shall authorize or permit City to impose any condition on and/ or withhold approval of any proposed improvement the result of which would be inconsistent with the Project Approvals, an approved Map, the Existing Regulations or the provisions of this Agreement.
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14. Design Review Approval(s). Nothing set forth herein shall impair or interfere with City' s right to conduct design review proceedings before its Planning Commission according to the Code of Indio and the SP as to any specific improvements proposed for the Project. However, City may within the sole discretion of its City Manager or Community Development Director, act administratively in granting approval as to specific improvements in lieu of formal design review approval via the Planning Commission.
15. Assignment and Transfer of Rights. City agrees that Developer may, at any time during the Term, subject to City' s approval rights described below, assign, convey, lease, sell or otherwise transfer the rights under this Agreement corresponding to any portion of the Property and/ or any approvals related thereto ("Assignable Rights") to a third party, a subordinate entity, or a related entity ( make an " Assignment"). Any party or entity proposing to make an Assignment of Assignable Rights hereunder will be referenced hereinafter as an " Assignor." Any party or entity acquiring or receiving Assignable Rights from Developer' s or Developer' s successor in interest will be referenced hereinafter as an " Assignee."
15. 1 City Approval Rights. In exercising its approval rights with respect to any proposed Assignment by Developer, City' s concern shall be whether a proposed Assignee: ( a) has the financial capacity to complete the development contemplated by this Agreement or the portion thereof proposed for Assignment ( the " Financial Capacity"), and ( b) whether a proposed Assignee is likely to comply with Developer' s duties and obligations per this Agreement or an amendment or restatement thereof (the Developer Obligations"). In making the second of these determinations, City will require and Assignor will cooperate in procuring a proposed Assignee' s formal written acceptance of and commitment to the fulfillment of Developer Obligations by that Assignee.
15. 2 Limit on Assignments. No Assignor shall undertake any Assignment of Assignable Rights if City has issued a notice of default to that Assignor pursuant to Section 24 and the duly noticed default in question has not been cured by that Assignor within the time for cure provided therein.
15. 3 Assignment Process. Any proposed Assignment by Developer or its successor in interest to a proposed Assignee of Assignable Rights shall be upon thirty ( 30) days' written notice to City. Assignments hereunder shall only be effective with City' s approval after appropriate Council or administrative action, which approval shall not be unreasonably withheld or delayed by City. Written notice of a proposed Assignment to City shall not be complete hereunder absent City receipt upon delivery from Assignor of Assignment documentation sufficient to assist City in determining whether to approve the Assignment in question (" Assignment Documentation").
Assignment Documentation shall in all instances include evidence of a proposed Assignee' s Financial Capacity and its acceptance of and agreement to develop in SCC/ INDIO CITRUS RANCH) L9YCITY OF INDIO DEVELOPMENT AGREEMENT CITY' S INITIALS 7_ IAGE23oF41 DEVELOPER' S INITIALS/
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 341 of 953 accord with the Developer Obligations. Assignment Documentation shall also include written specification of the Assignable Rights involved and Assignee' s written assumption of Assignor's obligations under this Agreement as they relate to said Assignable Rights ( the "Assignment Specification"), The Assignment Specification shall be in a form suitable for recordation in the Official Records of Riverside County and shall in a form and manner acceptable to City state that Assignor shall be released from any and all obligations under this Agreement, all of which shall pass to the Assignee.
Assignor shall reimburse City for its actual costs incurred in connection with any Assignment, including but not limited to legal fees and administrative costs related thereto. Notwithstanding any statement in this Subsection 15. 3, City shall have the discretion, upon Developer' s request, to approve any proposed Assignment administratively via the signature of the City Manager or his/ her designee.
15.4 Transfers in Ownership not Subiect to City Approval Rights, Limits or Process. Notwithstanding anything stated in this Section 15, any transfer of the Property or any portion thereof, or any transfer of ownership in Developer to: ( a) a non - managing equity member of Developer, ( b) an entity that is at least fifty percent ( 50%) owned by entities controlled by, controlling or under common control with Developer or SCC Acquisitions, Inc., a California corporation, ( c) an entity managed by Developer or SCC Acquisitions, Inc., or managed by any entity controlling, controlled by, or under common control with Developer or SCC Acquisitions, Inc. ( herein a " SunCal Entity"), or d) a SunCal Entity for purposes of securing financing, shall not be considered an Assignment" and shall not require the consent of City hereunder. Developer shall provide City with fifteen ( 15) days' written notice of any such transfer to any entity addressed by this Section 15. 4.
15. 5 Release of Assignor. In any complete Assignment of all of Developer' s obligations hereunder, Developer shall include an express covenant by Assignee to render performance of all Developer duties and obligations per this Agreement, and Developer shall warrant that there has been no default under this Agreement prior to said Assignment. In exchange for this covenant to perform, and warranty of non -default, City shall release Developer, except as to such warranty, and as expressly provided in an Assignment based upon the scope of that Assignment, from obligations arising from and related to this Agreement.
16. Review for Compliance.
16. 1 Periodic Review. Annually during the term of this Agreement beginning with the one year anniversary of the Effective Date, the City shall review the good faith compliance by Developer with the terms of this Agreement. This review shall be limited in scope to compliance with the terms of this Agreement pursuant to CGC Section 65865. 1. During this review, Developer shall be required to demonstrate good faith compliance with the terms of this Agreement.
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16. 2 Procedure for Review. The Community Development Director shall review the Developer' s performance under this Agreement to ascertain whether Developer has complied in good faith with the terms of this Agreement. Upon request of the Community Development Director, Developer shall furnish such documents and information as may be reasonably required and available to Developer to enable the Community Development Director to make and complete the compliance review hereunder. At least ten ( 10) days prior to making the determination of the compliance hereunder, the Community Development Director shall provide to Developer copies of all staff reports ( except those containing privileged information) and other information relied upon by the Community Development Director in making such determination.
16. 3 Result of Review. If the Community Development Director finds good faith compliance by Developer with the terms of this Agreement, the Community Development Director shall issue an executed certificate of compliance, certifying good faith compliance with the terms of this Agreement through the period of the applicable periodic review. Such certificate of compliance shall be in recordable form and shall contain such information as may be necessary in order to impart constructive record notice of the finding of good faith compliance hereunder. Developer shall have the right to record the certificate of compliance in the Official Records of the County of Riverside.
If the Community Development Director, on the basis of substantial evidence, finds that Developer has not complied in good faith with the terms of this Agreement, the Community Development Director shall specify in writing the respects in which Developer has failed to comply. The Community Development Director shall provide Developer with notice of the finding of noncompliance, in the manner provided for Notices in this Agreement, together with written specification of the reasons therefore.
Such written notice shall also specify a reasonable time for Developer to meet the terms of compliance, which shall not be less than thirty ( 30) days and shall be reasonably related to the time necessary to bring Developer' s performance into good faith compliance with the terms of this Agreement.
16. 4 Appeals to the City Council. A determination of noncompliance by the Community Development Director shall be appealable by Developer to the City Council within thirty ( 30) days after receipt of the written notice of non- compliance specified hereinabove. If Developer appeals a determination of noncompliance hereunder to the City Council, then the City Council shall schedule a public hearing thereon not later than thirty ( 30) days after Developer files its notice of appeal. At such hearing, Developer shall be entitled to address all the issues considered by the Community Development Director. Developer' s evidence may be in writing or may be taken orally at the hearing before the City Council, or both. If, after receipt of any written response of Developer, and after considering all of the evidence of such public hearing, the City Council finds and determines, by a majority vote, on the basis of substantial evidence, that Developer has not complied in good faith with the terms and conditions of this Agreement, then the City Council shall specify to Developer the respects in which Developer has failed to comply, and shall also specify a reasonable time for Developer to meet the terms of compliance, which time shall not be less than
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A determination by the City Council of noncompliance by Developer shall be in writing, delivered in accordance with the Notice section of this Agreement, and shall specify in detail the grounds therefore and all facts demonstrating such noncompliance, so that Developer may have the opportunity to implement any measures necessary to cure such noncompliance. If noncompliance specified by the City Council is not cured within 90 days or such longer period as reasonably required, then the City Council may, after noticed hearing, terminate or modify this Agreement. Should the City elect to modify this Agreement as a result of a default by Developer, such action shall not limit the right of the City to terminate the Agreement by reason of some other default, whether of a similar or dissimilar nature, in the future. No such modification shall change the rights or obligations of Developer without Developer's written consent.
16. 5 Failure of City to Act. Should the City fail in any year to issue a certificate of compliance or a notice of non- compliance within thirty 30 days after the annual anniversary of the Effective Date of this Agreement, Developer will be deemed to be in good faith compliance with this Agreement for the preceding term of the Agreement.
17. Amendment or Cancellation. This Agreement may be amended or canceled in whole or in part only by the written mutual consent of the Parties or in the manner provided in CGC § 65865. 1 or CGC § 65868.
18. Further Annexation of Adjacent Property. Developer may seek to annex properties adjacent to the Site, i.e., properties beyond the Sphere Parcels and the Outside Parcels, by an amendment to this Agreement. To the extent that any such annexation request may be permissible by law and determined by the Council, in its sole discretion, to promote the quality development envisioned by the Entitlement Applications in a fiscally responsible manner, City will approve such an annexation request and amend this Agreement to include any property involved therewith.
19. Coachella Valley Multi -Species Conservation Habitat Plan. The Parties understand and acknowledge that a Multi -Species Conservation Habitat Plan MSHCP") is being considered for adoption throughout the Coachella Valley and that the Site or a portion thereof may be affected by proposed MSHCP conservation areas.
The Parties further understand and acknowledge that the MSHCP may significantly limit, prohibit development and/ or unreasonably delay Site development. The Parties further understand and acknowledge that land immediately adjacent to an MSHCP conservation area may be adversely affected by such MSHCP. In regards to the MSHCP, on or about June 26, 2006, the City, County of Riverside, Coachella Valley Association of Governments and the Coachella Valley Conservation Commission entered into a memorandum of understanding " Concerning the Implementation of the Coachella Valley Multiple Species Habitat Conservation Plan Regarding Citrus Ranch" MSHCP MOU"). Although the original MSHCP failed to be adopted, a revised MSHCP
SCCIINDIO CITRUS
AANCHITY
OF INDIO DEVELOPMENT AGREEMENT
E 26 OF 41
CITY' S INITIALSDEVELOPERS INITIALS f/-
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 344 of 953 is currently being prepared and will be circulated for consideration and approval by cities and agencies in the Coachella Valley including City. Because the Parties cannot determine at the time of execution of this Agreement the full affect of the proposed MSHCP, or if the MSHCP will be enacted, the City agrees to use its best commercially reasonable efforts to implement the MSHCP MOU. Likewise, Developer agrees to use its best commercially reasonable efforts to develop the Site in a manner consistent with the provisions of the MSHCP MOU. Furthermore, since the Developer has agreed not to exceed the constraints of the MSHCP MOU in its development of the Project, the City agrees that it will not enter into a revised MSHCP inconsistent with the MSHCP MOU without Developer' s consent.
20. Annexation.
20. 1 Contemplated LAFCO Action. The Parties recognize that the Site includes land that is both within and outside of City' s SOI and subject to annexation.
City will be the sole applicant with respect to the annexation of approximately twentyfive ( 25) square miles to Indio' s SOI, along the Dillon Road " corridor" and from Indio Hills South to Washington Street (the "Indio SOI Expansion"). City anticipates filing the Indio SOI Expansion application with LAFCO prior to or shortly after this Agreement' s consideration by the City Council. In addition, subsequent to City Council certification of the EIR, City will apply to LAFCO for a Project -specific expansion, roughly one thousand five hundred ( 1, 500) square acre in size, of the City' s SOI to include all Outside Parcels therein, and a corresponding annexation of all Sphere Parcels and Outside Parcels to the City ( the " Citrus Ranch Annexation"). The Parties further recognize that CGC § 65865( b) authorizes the City to enter into a development agreement with Developer only for property that is within the City' s SOL The Parties further agree and understand that prior to the contemplated annexation, this Agreement shall function as a pre -annexation agreement with respect to the Property and bind the Parties as such.
20. 2 Contemplated Parties' Action. Upon LAFCO approval of either the Indio SOI Expansion or the Citrus Ranch Annexation, either approval bringing the Outside Parcels within the City' s SOI, the Parties agree, within sixty ( 60) days, to prepare and process an amendment to this Agreement subjecting the Outside Parcels to this Agreement as a development agreement. The Parties intend that such an amendment shall neither trigger any new environmental analysis nor subject the Project to additional burdens. The Parties agree that the amendment shall be in the form attached hereto as Exhibit " G" and incorporated herein by this reference. The Parties agree that if LAFCO denies the Citrus Ranch Annexation, or any successor annexation application prepared by either of the Parties, the Parties will negotiate in good faith to preserve this Agreement and the Project Approvals to the maximum extent that same may be consistent with that denial and the Parties' commercial concerns.
Notwithstanding this commitment to negotiate in good faith, Developer reserves the absolute right to terminate this Agreement in the event that LAFCO denies the Citrus SCC/ INDIO CITRUS :;#
A
CITY OF INDIO DEVELOPMENT AGREEMENT
S INITIALSDEVELOPER'
GE 270
4 S INITIALS /' /_
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 345 of 953 EXHIBIT " G"
OFTHE
DEVELOPMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Indio
100 Civic Center Mall
P. O. Box Drawer 1788
Indio, CA 92202
Attention: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER' S USE
Recording Fee Exempt per Govenunent Code §6103
FIRST AMENDMENT TO DEVELOPMENT AND PRE -ANNEXATION AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AND PRE -ANNEXATION AGREEMENT (" First Amendment") is made, entered into and shall be deemed effective this day of 2007 (" First Amendment
Effective Date"), by and between the CITY OF INDIO, a California Municipal Corporation City") and SCC/ Indio Citrus Ranch, LLC, a Delaware Limited Liability Company Developer"). City and Developer are sometimes referenced together herein as the " Parties." In instances when a provision hereof applies to each of the Parties individually, either of the Parties may be referenced as a " Party." The Parties hereby jointly render the following statement as to the background facts and circumstances underlying this First Amendment.
RECITALS
A. On a Development and Pre -Annexation
Agreement between the Parties, designated number ( DA 06- 10- 22) (" Agreement"), became effective relative to real property comprising a development area approximately one thousand one hundred and eighty three ( 1, 183) acres in size and located north of the City and west of Dillon Road known as the Citrus Ranch project.
All of the defined terms in the Agreement shall have the same meaning for purposes of this First Amendment.
B. As set forth in the Agreement, the approved Project consisted of both land within and outside the City' s Sphere of Influence (" SOI"). The Parties recognized at the time the Agreement was executed that the Agreement would need to be amended and re -adopted by the City pursuant to California Government Code § 65865( b) in order to perfect the rights and obligations of the Parties relative to the Outside Parcels.
SCC/ INDIO CITRUS RANCH, LLC/ CITY OF INDIO DEVELOPMENT AGREEMENT PAGG I OF 8
CITY' S INITIALS _/ DEVELOPER' S INITIALS
Exhibit G Page I of 8
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 346 of 953 C. The Project is now fully within the City's SOL This First Amendment is intended to re -adopt the Citrus Ranch Agreement in order to perfect the rights and obligations of the Parties for the entire Project.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1. Binding Effect of First Amendment. The Parties agree that the Recitals above are true and correct and intend to be bound by same. The Parties further agree to the incorporation by reference herein of said Recitals, together with all definitions provided and exhibits referenced therein. This First Amendment pertains to the Site as described in Exhibit " A" and Exhibit " A- 1" of the Agreement The burdens of this First Amendment are binding upon, and the benefits of this First Amendment inure to, all successors -in -interest of the Parties and constitute covenants which run with the Property. In order to provide continued notice thereof, the Parties will record this First Amendment in the public records of Riverside County.
2. Adoption of Development Agreement as to Outside Parcels. The Parties hereby adopt the Agreement as a development agreement with regards to the Outside Parcels. With this First Amendment, the entire Project shall be subject to the terms and conditions of the Agreement as a development agreement. All other terms and conditions of the Agreement shall remain in full force and effect. The adoption of this First Amendment shall not effect the Agreement in any other way.
3. Vesting of Project Rights.
3. 1 Vested Rights to Develop. Developer shall have the vested right to develop the entire Project during the Term of the Agreement in accordance with the SP and other Project Approvals.
3. 2 Legally Binding Contract. Except as otherwise provided by State law, it is the expressed intent of City and Developer that this First Amendment combined with the Agreement constitute a legally binding contract.
4. Counterparts. This First Amendment may be executed in one or more counterparts, each of which will be deemed an original, but all of which constitute one and the same instrument.
5. Execution of Agreement. The Parties shall sign this First Amendment on or within ten ( 10) business days of the First Amendment Effective Date.
6. Headings. The headings in this First Amendment are inserted for convenience only. They do not constitute part of this Agreement and shall not be used in its construction.
SCC/ INDIO CITRUS RANCH, LLC/ CITY OF INDIO DEVELOPMENT AGREEM ENT PAGE 2 of., 8
CITY' S INITIALS-1 DEVELOPER' S INITIALS - I--
Exhibit G Page 2 of 8
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 347 of 953
7. Jointly Drafted. It is agreed among the Parties that this First Amendment was jointly negotiated and jointly drafted by the Parties and their respective counsel, and that it shall not be interpreted or construed in favor of or against any Party solely on the ground that it drafted the First Amendment. It is also agreed and represented by all Parties that said Parties were of equal or relatively equal bargaining power and that in no way whatsoever shall this Agreement be deemed to be a contract of adhesion, or unreasonable or unconscionable.
8. Independent Le -gal Counsel. Each Party acknowledges that it has been represented by independent legal counsel of its own choice throughout all of the negotiations that preceded the execution of this First Amendment or has knowingly and voluntarily declined to consult legal counsel, and that each Party has executed this First Amendment with the consent and on the advice of such independent legal counsel.
9. Further Cooperation. The Parties agree to execute any and all agreements, documents or instruments as may be reasonably necessary in order to fully effectuate the agreements and covenants of the Parties contained in this First Amendment, or to evidence this First Amendment as a matter of public record, if required to fulfill the purposes of the Agreement or this First Amendment. The Parties further agree to mutually cooperate with one another in carrying out the purposes of this First Amendment.
10. Enforceability. This First Amendment shall not become binding and shall have no force and effect whatsoever until such time as it has been approved by the City Council pursuant to a duly enacted ordinance and fully executed by and delivered to all of the Parties hereto.
SCC/ INDIO CITRUS RANCH, LLC/ CITY OF INDIO DEVELOPMENT AGREEMENT PAGE 3 or 8
CITY' S INITIALS_/ DEVELOPER' S INITIALS_/_
Exhibit G Page 3 of 8
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 348 of 953 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the First Amendment Effective Date.
Signatures on following pages]
Exhibit G Page 4 of 9
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 349 of 953 CITY" CITY OF INDIO,
California Municipal Corporation
Date: By:
2006
STATE OF CALIFORNIA
COUNTY OF
Mayor
Attest:
Cynthia Hernandez, City Clerk, CIVIC
Approved as to form:
Woodruff, Spradlin & Smart, APC
Edward Z. Kotkin, Esq.
City Attorney, City of Indio
On , before me, personally appeared,
personally known to me or proved to me on the basis of
satisfactory evidence to be the person( s) whose name( s) is/ are subscribed to the within instrument and acknowledged to me that he/ she/ they executed the same in his/ her/ their authorized capacity(ies), and that by his/ her/their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
WITNESS my hand and official seal.
Signatureof Notary
SCC/ INDIO CITRUS RANCH, LLC/CITY Or INDIO DEVELOPMENT AGREEMENT PAGE 5 Or 8
CITY' S INITIALS / DEVELOPER' S INITIALS /
Exhibit G Page 5 of 8
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 350 of 953 STATE OF CALIFORNIA }
ss
COUNTY OF }
On before me, , personally appeared,
personally known to me or proved to me on the basis of
satisfactory evidence to be the person( s) whose name( s) is/ are subscribed to the within instrument and acknowledged to me that he/ she/ they executed the same in his/ her/their authorized capacity(ies), and that by his/ her/their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ofNotary
STATE OF CALIFORNIA }
ss
COUNTY OF }
On before me, , personally appeared,
personally known to me or proved to me on the basis of
satisfactory evidence to be the person( s) whose name( s) is/ are subscribed to the within instrument and acknowledged to me that he/ she/ they executed the same in his/ her/ their authorized capacity(ies), and that by his/ her/their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
SCGINDIO CITRUS RANCH, LLC/ CITY OF INDIO DEVELOPMENT AGREEMENT PAGE 6 oi, 8
CITY' S INITIALS !_ DEVELOPER' S INITIALS
Exhibit G Page 6 of 8
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 351 of 953 DEVELOPER"
Date:
SCC/ Indio Citrus Ranch, LLC, a Delaware
Limited Liability Company
By:
NAME
2006 TITLE
Approved as to form:
Ferguson & Bernheimer
Un
Robert A. Bernheimer, Esq.
Attorney for Developer
SCC/ INDIO CITRUS RANCH, LLC/ CITY OF INDIO DEVELOPMENT AGREEMENT PAGIs 7 OF 8 CITY'
S INITIALS _/_ DEVELOPER' SINITIALS / Exhibit
GPage 7of 8
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 352 of 953
STATE OF CALIFORNIA
COUNTY OF
On , before me, personally appeared,
personally known to me or proved to me on the basis of
satisfactory evidence to be the person( s) whose name( s) is/ are subscribed to the within instrument and acknowledged to me that he/ she/ they executed the same in his/ her/ their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
STATE OF CALIFORNIA
COUNTY OF
ss
On , before me, personally appeared,
personally known to me or proved to me on the basis of
satisfactory evidence to be the person( s) whose name( s) is/are subscribed to the within instrument and acknowledged to me that he/ she/ they executed the same in his/ her/ their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
SCC/ INDIO CITRUS RANCH, LLUCITY OF INDIO DEVELOPMENT AGREEMENT Pn ce 8 or 8
CITY' S INITIALS /_ DEVELOPER' S INITIALS
Exhibit G Page 8 of 8
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 353 of 953 Ranch Annexation, or any successor annexation application prepared by either of the Parties.
20. 3 Development of Annexed Property. The Parties agree that upon City approval of an amendment substantially similar to Exhibit " G," the rights of Developer to develop the Project upon the newly annexed Outside Parcels in accord with the SP and the Other Project approvals as set forth in this Agreement shall vest and become equivalent to the vested rights described above in Section 4. 1.
21. Preemption or Frustration of Agreement by Changes in Law. In the event that any Party has or acquires actual knowledge that: ( a) State or Federal law or regulations enacted after the Effective Date preempt this Agreement or City' s authority to perform hereunder, or ( b) the action or inaction of any governmental agency or quasi - public entity arising from or related to this Agreement, apart from City or any instrumentality thereof, frustrates compliance with one or more provisions of this Agreement as a matter of law, such a Party shall:
21. 1 Provide Notice. Provide the other Party with written notice of such State or Federal law or regulation, a copy of such law or regulation and a statement identifying how such law regulation conflicts with the provisions of this Agreement.
21. 2 Meet and Confer. Upon notice by one Party to another as to preemption or frustration of this Agreement by law or regulation, the Parties shall promptly meet and confer in good faith and make a reasonable attempt to modify or amend this Agreement to comply with such applicable Federal or State law or regulation. If the Parties cannot agree on a manner or method to comply with such Federal or State law or regulation, the Parties shall follow the Dispute Resolution procedures set forth in this Agreement.
22. Indemnification During Construction. During the period of the Project' s construction on the Site and until such time as City has accepted the construction of all improvements and released any bonds applicable thereon pursuant to applicable provisions of law, Developer agrees to and shall indemnify and hold City and its agencies, agents, attorneys, contractors, employees, officers, officials and servants harmless from and against any and all liability, loss, damage, costs or expenses including reasonable attorneys' fees payable to legal counsel of City' s choice and court costs) ( a " Loss") arising out of or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused by any act on the Site by, or any errors or omissions of Developer or its agents, servants, employees or contractors. The Parties understand that the Developer' s obligation to indemnify the City may extend beyond the Term of this Agreement if there is a claim made after the expiration or termination of this Agreement for a Loss that occurred or is alleged to have occurred during the Term of this Agreement. Developer shall not be responsible for, and such indemnity shall not apply to, all acts, errors or omissions of City, its agencies, agents, attorneys, contractors, employees, officers, officials and servants.
SMINDIO CITRUS] CH L / CITY OF INDIO DEVELOPMENT AGREEMENT AGE 28 OF 41
CITY' S INITIALS DEVELOPER' S INITIALS " I
Second Reading of Ordinance No. 1842, Approving a Second Amendment to th... Page 354 of 953
23. Defense of Agreement. The City agrees to and shall timely take all actions which are necessary or required to uphold the validity and enforceability of this Agreement and associated Project Approvals. If this Agreement is adjudicated and determined to be invalid or unenforceable, the City agrees, subject to all legal requirements, to consider and implement all modifications to this Agreement and Project Approvals which are necessary or required to render them valid and enforceable to the extent permitted by law.
24. Enforced Delay and Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by Developer hereunder shall not be deemed by City to be in default where delays or defaults are demonstrated by substantial evidence to be enforced due to any Development Limitation( s) delineated above in Sections 3. 1. 1. An extension of time in writing for any such cause shall be granted by City to Developer for the period of the enforced delay, or longer as mutually agreed upon, which period shall commence to run from the time of commencement of such cause. Nothing in the provisions of this Section shall imply that the Parties believe that under applicable law, the provisions of this Agreement may be affected by an injunction or moratorium or other " no growth" or " slow growth" measures.
25. Breach and Remedies. Notwithstanding any provision of this Agreement to the contrary, Developer shall not be deemed to be in default under this Agreement with respect to any obligation owed solely to City, and City may not terminate or modify Developer' s rights under this Agreement, unless City shall have first delivered a written notice of any alleged default to Developer that specifies the nature of such default and complies with the requirements of Section 16 with respect to non-compliance. Default by any assignee or Developer' s successor in interest shall affect only that portion of the Site owned by such assignee or successor, and shall not cancel or diminish in any way Developer' s rights with respect to any portion of the Site not owned by such assignee or successor.
25. 1 Specific Performance. In the event that a breach of this Agreement occurs, irreparable harm is likely to occur to the non -breaching Party and damages will be an inadequate remedy. To the extent permitted by law, therefore, it is expressly recognized that injunctive relief and specific enforcement of this Agreement are proper and desirable remedies, and it is agreed that any claim by Developer against City or by City against Developer for an alleged breach of this Agreement shall be remedied by injunctive relief or an appropriate action for specific enforcement of this Agreement and not by a claim or action for monetary damages, unless the claim is for payment of funds due and owing a Party pursuant to this Agreement.
26. Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be either personally delivered ( which shall include delivery by means of professional overnight courier service which confirms receipt in writing [ such as Federal Express or UPS] ), sent by telecopier or facsimile
SCC/ INDIO CITRUS RANCH, LW/CITY OF INDIO DEVELOPMENT AGREEMENT CITY' S INITIALS / aAGE29OF41 DEVELOPER' S INITIALS 1 /