Twentynine Palms City Council
January 25, 2022

TWENTYNINE PALMS CITY COUNCIL

REGULAR MEETING AGENDA
6136 Adobe Road
Twentynine Palms, CA 92277
www.29palms.org
Tuesday, January 25, 2022
NOTICE IS HEREBY GIVEN, that the City Council will hold a Virtual Regular Meeting on Tuesday, January 25, 2022, Twentynine Palms, CA 92277 to consider the following:

REGULAR SESSION AGENDA
6:00 P.M.

Please register for the regularly scheduled City Council Meeting January 25th, 2022 6:00 PM at:
https://attendee.gotowebinar.com/register/508860998892681228 After registering, you will receive a confirmation email containing information about joining the webinar.

CALL TO ORDER
Pledge of Allegiance.

Invocation - Rev. Don Thursby - Little Church of the Desert.

Roll Call.

Closed Session Announcements.

Changes to the Agenda.

ANNOUNCEMENTS
These proceedings may be viewed on demand on the City of Twentynine Palms website at www.29palms.org.

You may also Live Stream this meeting by going on our website and clicking on the "Meeting Agendas" link.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

1. Senate Update by Dominic Heiden, Field Representative for Senator Shannon Grove, Sixteenth Senate District.

COUNCIL COMMENTS AND REPORTS OF MEETINGS ATTENDED

CONSENT CALENDAR
All matters listed under the Consent Calendar are to be considered routine by the City Council and will be enacted by one motion in the form listed. Any item may be removed from the Consent Calendar and considered separately by the City Council. The public will be given an opportunity to comment on Consent Calendar items prior to the City Council action.

2. Waive the Reading of Ordinance and Approve the Reading by Title Only.

3. Treasurer's Report
Treasurer's Report 12/31/21
CD Report 12/31/2021
5 - 7

4. Approval of Project Phoenix Warrant Register Totaling $2,153,544.93 Approval of Project Phoenix Warrant Register Totaling $2,153,544.93 - Pdf 9 - 10

5. Approval of Warrant Register Totaling $2,709,685.86
Approval of Warrant Register Totaling $2,709,685.86 - Pdf 11 - 16

6. Electronic Scooters on Roadways.

RECOMMENDATION: The City Council approve Resolution No. 22-___ authorizing the operation of electronic scooters on roadways with a speed limit of 35 miles per hour.

Electronic Scooters on Roadways. - Pdf
17 - 20

7. Environmental Initial Study (IS) for Trunk Sewer System.

RECOMMENDATION: The City Council authorize the City Manager to negotiate and execute the environmental proposal by Terra Nova Planning and Research, Inc. in the amount of $173,970.

Environmental Initial Study (IS) for Trunk Sewer System. - Pdf 21 - 26

8. Adopt Resolution to Authorize Submittal of Application to CalRecycle for all CalRecycle Grant and Payment Programs.

RECOMMENDATION: The City Council Adopt Resolution No. 22-___authorizing the City Manager to submit applications and payment requests related to the administration of all CalRecycle Grant and Payment Programs offered by the California Department of Resources Recycling and Recovery (CalRecycle).

Adopt Resolution to Authorize Submittal of Application to CalRecycle for all CalRecycle Grant and Payment Programs. - Pdf
27 - 30

9. Social Equity.

RECOMMENDATION: The City Council authorize the City Manager negotiate and execute a professional service contract with Terra Nova Planning & Research, Inc. for the preparation of a Social Equity Element for the General Plan in the amount, not to exceed, $42,800.

Social Equity. - Pdf
31 - 37

10. Second Reading and Adoption of an Ordinance Pertaining to Regulation of Solid Waste Including Organic Waste.

RECOMMENDATION: The City Council approve the second reading of Ordinance No. 296 amending in its entirety, Title 10, Chapter 10.04 of the Twentynine Palms Municipal Code pertaining to the Regulation of Solid Waste including Organic Waste.

Second Reading and Adoption of an Ordinance Pertaining to Regulation of Solid Waste Including Organic Waste. - Pdf
39 - 56

11. Fire Department Monthly Report - December 2021
Fire Department Monthly Report - December 2021
57 ITEMS REMOVED FROM CONSENT CALENDAR FOR DISCUSSION

PUBLIC HEARING - NONE

DISCUSSION AND POTENTIAL ACTION ITEMS

12. Purchase, Sale, and Development Agreement for Project Phoenix Property.

RECOMMENDATION: The City Council approve the Purchase, Sale, and Development Agreement with Greens Development Inc. for the sale of a property within the boundaries of Project Phoenix for $438,927 and the subsequent development of a 95-unit hotel.

Purchase, Sale, and Development Agreement for Project Phoenix Property. - Pdf 59 - 147

13. Downtown Specific Plan.

RECOMMENDATION: The City Council review the summary of public input, analysis, and recommendations of the draft Downtown Specific Plan and provide feedback to Staff.

Downtown Specific Plan. - Pdf
149 - 222

14. Voluntary Collection Agreement with HOMEAWAY.COM,INC (VRBO) for Transient Occupancy Tax.

RECOMMENDATION: The City Council approve the Voluntary Collection Agreement with HOMEAWAY.COM, INC, effective March 1, 2022, to collect and remit Transient Occupancy Taxes (TOT) and Tourism Fees on behalf of the Hosts for transactions completed on the VRBO.com internet-based platform, and authorize the Tax Administrator to execute such agreement.

Voluntary Collection Agreement with HOMEAWAY.COM,INC (VRBO) for Transient Occupancy Tax. - Pdf
223 - 229

15. City Council Regional Organizational Assignments.

RECOMMENDATION: The City Council review Council assignments for Regional Organizations and make appointments as appropriate.

City Council Regional Organizational Assignments. - Pdf 231 - 232

FUTURE COUNCIL INITIATED ITEMS

1. Discussion on adding sidewalk and picnic tables in Veterans' Park.

2. Shopping Carts.

3. Voting for Mayor each year instead of the current selection process of ascending to the mayor's seat determined by votes received in the Elections.

PUBLIC COMMENTS
This is the time for the public to address the City Council on issues within the jurisdiction of the City Council that are NOT on this agenda. All comments are to be directed to the City Council and shall not consist of any personal attacks. Members of the public are expected to maintain a professional, courteous decorum during their comments.

There is a time limitation of three minutes per person. If you haven’t already done so, please fill out name and address slips and give them to the City Clerk. The City Council is prohibited by State law from taking action or discussing items not included on the printed agenda. Public comments on specific agenda items will be deferred until consideration of the item on the agenda.

CITY MANAGER UPDATE

ADJOURNMENT
It is the intention of the City of Twentynine Palms to comply with the Americans with Disabilities Act in all respects. If you are a person with a disability who requires a disability-related modification or accommodation in order to participate in a meeting, including auxiliary aids or services, please request such modification or accommodation from the City Clerk at (760) 367- 4890 (facsimile). Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to the meeting. Please advise us at the time whether you will require accommodations to participate in meetings on a regular basis. Any person affected by any application on this agenda may submit their concerns in writing prior to the meeting or appear in person and be heard in support or opposition to the proposal at the time the matter is considered on the agenda. The staff reports, applications and environmental documents may be viewed at either the office of Community Development or the office of the City Clerk, 6136 Adobe Road, from 7:00 a.m. until 6:00 p.m. Monday through Thursday, except legal holidays. The Invocation is given per Policy 10-01, and does not reflect the views of the City but rather is an expression of speech by a private citizen making the presentation. Telephone inquiries may be made at (760) 367-6799. If you challenge any agenda issue in court, you may be limited to raising only those issues that you or someone else raised at the public meeting described in this notice, or in written correspondence delivered to the City of Twentynine Palms at, or prior to, the public meeting.

This notice of agenda is hereby certified to have been posted on or before 6:00 p.m., January 20, 2022.

Cindy Villescas CMC, City Clerk Time/Date

City of Twentynine Palms
Treasurer's ReportDecember 31, 2021
Interest Market Percent
Depository Term Matures Rate Amount Value of TotalPetty Cash and Cash on Hand On Hand N/A $700 $700 0.01%PPBI Bank Checking Account Demand 0.00% $3,124,563 $3,124,563 22.73%PPBI Bank - Successor Agency Demand 0.00% $312,894 $312,894 2.28%Local Agency Investment Fund Demand 0.23% $5,256,216 $5,256,216 38.23%Cerfificate of Deposit 2.35% $1,473,987 $1,473,987 10.72% Total City Funds $10,168,360 $10,168,360 73.96%Funds Held in Trust:Cash With Fiscal Agent (Project Phoenix) $3,580,416 $3,580,416 26.04%Total Funds in the Treasurer's Custody $13,748,776 $13,748,776 100.00%NOTES:1) All the above investments are in compliance with the City's Investment Policy.2) The City has sufficient funds to meet its expenditure requirements for the next six months.Prepared by: Abigail Hernandez CondeDate: 01/17/22

City of Twentynine Palms RMB033895
Account eCD70981Report Name Position Report Export
Executed 12/31/2021
Issuer Settle Date Maturity Date Principal Payment Frequency Rate Interest Earned CAPITAL ONE NATL 7/20/2017 7/19/2022 $245,000.00 Semi Annual 2.27% $478.59 DISCOVER BK 3/1/2017 3/1/2022 $245,000.00 Semi Annual 2.30% $478.59 MORGAN STANLEY 10/3/2019 1/11/2023 $245,000.00 Monthly 1.94% $405.76 MORGAN STANLEY BK 1/11/2018 1/11/2023 $245,000.00 Monthly 2.59% $551.42SALLIE MAE BK SALT 2/22/2018 2/22/2023 $245,000.00 Monthly 2.72% $582.63 SYNCHRONY BK RETAIL 2/24/2017 2/24/2022 $245,000.00 Semi Annual 2.27% $478.59 Totals $1,470,000.00 2.35% $2,975.58

Check Date Vendor Check/Payment
13374 12/08/2021 [3288] BOGH ENGINEERING, INC. (9150) 173,225.69 13375 12/08/2021 [3288] BOGH ENGINEERING, INC. (9150) 9,117.16 13376 12/08/2021 [3292] CASTON, INC (9148) 10,640.00
13377 12/08/2021 [3286] CG ACOUSTICS, INC (9140) 110,899.20 13381 12/08/2021 [3268] CONSTRUCTION ELECTRIC INC. (9124) 81,293.87 13382 12/08/2021 [3284] CONTINENTAL PLUMBING INC. (9143) 20,298.31 13387 12/08/2021 [3285] FLOORED TILE & STONE (9141) 6,935.00 13416 12/8/2021 [1212] RUTAN AND TUCKER 6,728.50
13426 12/08/2021 [2919] TILDEN COIL CONSTRUCTORS 62,126.55 13434 12/08/2021 [3262] VIC'S AIR CONDITIONING AND ELECTRICAL (9092) 33,075.24 13436 12/08/2021 [3266] WORLD FIRE PROTECTION INC. (9130) 5,027.63 13478 12/22/2021 [3318] ED ROSE CONSTRUCTION INC. (9170) 141,138.49 13481 12/22/2021 [2840] GEOCON INC 7,339.80
13487 12/22/2021 [3587] KEYSTONE RIDGE DESIGNS 54,545.50 13495 12/22/2022 [1182] NV5 INC 986.27
13503 12/22/2021 [3282] S C COATINGS CORPORATION (9145) 134,950.35 13527 1/03/2022 [1212] RUTAN AND TUCKER 7,391.13
13528 1/03/2022 [1212] RUTAN AND TUCKER 4,719.37
13534 1/05/2022 [3288] BOGH ENGINEERING, INC. (9150) 227,875.54 13535 1/05/2022 [3288] BOGH ENGINEERING, INC. (9150) 11,993.46 13536 1/05/2022 [3292] CASTON, INC (9148) 23,710.10
13537 1/05/2022 [3286] CG ACOUSTICS, INC (9140) 22,372.50 13539 1/05/2022 [1052] CHARLES ABBOTT ASSOCIATES INC 720.00 13540 1/05/2022 [1052] CHARLES ABBOTT ASSOCIATES INC 17,247.50 13543 1/05/2022 [3268] CONSTRUCTION ELECTRIC INC. (9124) 24,187.95 13544 1/05/2022 [3284] CONTINENTAL PLUMBING INC. (9143) 10,550.17 13547 1/05/2022 [3279] DONALD M HOOVER COMPANY (9136) 37,904.81 13555 1/05/2023 [2732] HOLT ARCHITECTURE 15,540.00
13557 1/05/2022 [3220] JACOBSSON ENGINEERING CONSTRUCTION, INC. (9108) 186,569.94 13560 1/05/2022 [3293] LETNER ROOFING COMPANY (9154) 68,357.59 City of Twentynine Palms Project Phoenix Warrant 01-25-22

13563 1/05/2022 [1151] ELIJAH (2503) MARSHALL 23,806.29 13565 1/05/2022 [3294] MCKERNAN INC. (9151) 11,546.58
13566 1/05/2022 [3283] MONTGOMERY HARDWARE COMPANY (9147) 21,953.21 13572 1/5/2021 [1182] NV5 INC 20,226.38
13576 1/05/2022 [3291] PGC CONSTRUCTION INC (9149) 92,592.94 13588 1/05/2022 [2919] TILDEN COIL CONSTRUCTORS 116,601.03 13595 1/05/2022 [3262] VIC'S AIR CONDITIONING AND ELECTRICAL (9092) 8,324.37 13596 1/05/2022 [3266] WORLD FIRE PROTECTION INC. (9130) 7,314.61 13638 1/19/2022 [2732] HOLT ARCHITECTURE 5,180.00
ESCNO001334820004CB 1/13/2022 [1101] FIDELITY NATIONAL TITLE COMPANY 304,000.25 ESCRNO00096244-004 12/07/2021 [1101] FIDELITY NATIONAL TITLE COMPANY 24,531.65 Total Checks: 2,153,544.93

Check Date
Warrant Register
PPBI Gen Chkng

CITY OF TWENTYNINE PALMS
Vendor
WARRANT DATE: 1-25-22
Check / Payment
0013367 12/06/2021 [3582] ANIMAL CRACKER CONSPIRACY
0013368 12/06/2021 [3382] PARTYLIFE PHOTOBOOTH
0013369 12/08/2021 [2463] 4 SPORTS N' MORE (8671)
0013370 12/08/2021 [1506] A NEW CREATION FLOWERS & GIFTS (2187) 0013371 12/08/2021 [2680] AIS
0013372 12/08/2021 [2326] ANIMAL CARE EQUIPMENT AND SERVICE 0013373 12/08/2021 [1017] AUTOZONE (0842)
0013378 12/08/2021 [1053] CINTAS CORPORATION (8315)
0013379 12/08/2021 [1070] CNTY SAN BERDO CLERK BRD SUPERVISORS 0013380 12/08/2021 [1062] COMPANION ANIMAL CLINIC
0013383 12/08/2021 [2785] COPY CENTER PLUS INC. (8893)
0013384 12/08/2021 [1080] DAVID EVANS AND ASSOCIATES INC 0013385 12/08/2021 [1081] STEPHEN F DAVIS
0013386 12/08/2021 [1307] DESERT FIRE EXTINGUISHER CO INC (0133) 0013388 12/08/2021 [1102] FORENSIC DTS INC
0013389 12/08/2021 [1106] FRONTIER
0013390 12/08/2021 [1106] FRONTIER
0013391 12/08/2021 [1106] FRONTIER
0013392 12/08/2021 [1106] FRONTIER
0013393 12/08/2021 [1107] FULTON DISTRIBUTING
0013394 12/08/2021 [2945] GLADWELL GOVERNMENTAL
0013395 12/08/2021 [1112] GLOBAL ENVIRONMENTAL PROD INC 0013396 12/08/2021 [1651] HI DESERT INDUSTRIAL ELECTRIC (3203) 0013397 12/08/2021 [1122] HI DESERT PUBLISHING
0013398 12/08/2021 [1128] HUB INTERNATIONAL INSURANCE SVC 0013399 12/08/2021 [1133] IMAGE SOURCE
0013400 12/08/2021 [0291] JOEL ANTHONY KLINK
0013401 12/08/2021 [3541] KOFF & ASSOCIATES INC.
0013402 12/08/2021 [1149] LLOYD PEST CONTROL CO INC (8202) 0013403 12/08/2021 [1173] NATIONWIDE RETIREMENT SOLUTIONS 0013404 12/08/2021 [1172] NATIONWIDE RETIREMENT SOLUTIONS OB 0013405 12/08/2021 [1228] NCSI
0013406 12/08/2021 [1175] AARON NEVEU
0013407 12/08/2021 [3583] NEXTECH SYSTEMS INC
0013408 12/08/2021 [0001] ONE TIME VENDOR - BRENDA SIMMONS 0013409 12/08/2021 [0001] ONE TIME VENDOR - CALED
0013410 12/08/2021 [0001] ONE TIME VENDOR - ANIMAL SAMARITANS 0013411 12/08/2021 [0001] ONE TIME VENDOR - BREANNE DUSASTRE 0013412 12/08/2021 [1189] PACIFIC TIER SOLUTIONS INC
0013413 12/08/2021 [1036] PARKER'S BUILDING SUPPLY 29 PALMS (8036) 0013414 12/08/2021 [2499] RACKSPACE US, INC
0013415 12/08/2021 [1203] REACH OUT MORONGO BASIN (5005) 0013416 12/08/2021 [1212] RUTAN AND TUCKER
1,200.00
325.00
2,070.18
322.48

45.29 267.50

48.37 779.47
2,530.25

52.00 645.87
6,373.27
400.00
1,148.60

76.00 800.00

78.09 175.95

7.04 630.79
1,460.00
3,285.11
13,946.00
388.00
109.50
428.50
500.00
3,758.75
452.00
2,045.64
110.50

37.00 1,257.75
600.00
318.00
570.00

52.00 40.45
1,065.71
244.84
5,962.97
10,441.05
11,552.50
Run: 1/19/2022 at 6:29 PM Page: 1

0013417 12/08/2021 [1214] SAN BERNARDINO CO OFFICE OF THE ASSESSOR 20.00 0013418 12/08/2021 [1230] SCE 6,881.17
0013419 12/08/2021 [2334] SCOTT EQUIPMENT 4,838.99
0013420 12/08/2021 [1249] SPECTRUM 66.17
0013421 12/08/2021 [1249] SPECTRUM 104.98
0013422 12/08/2021 [1233] SR BUILDING INC (2685) 1,500.00 0013423 12/08/2021 [2484] TERRA NOVA PLANNING & RESEARCH INC. (9096) 4,054.79 0013424 12/08/2021 [1241] TERRYBERRY LLC 927.60
0013425 12/08/2021 [1243] THE GAS COMPANY 669.27
0013427 12/08/2021 [2201] TRANSUNION RISK AND ALTERNATIVE 75.00 0013428 12/08/2021 [1259] TWENTYNINE PALMS WATER DISTRICT 69.33 0013429 12/08/2021 [1141] US ROOTER (1187) 225.00
0013430 12/08/2021 [3512] V0290 - PATRICK KANE 102.00
0013431 12/08/2021 [1268] VAGABOND WELDING SUPPLY 25.86 0013432 12/08/2021 [1269] VALIC C/O JP MORGAN CHASE 2,708.97 0013433 12/08/2021 [1271] VCA 29 PALMS ANIMAL HOSPITAL (0319) 31.00 0013435 12/08/2021 [0171] CYNTHIA VILLESCAS 171.36
0013437 12/08/2021 [1287] XEROX FINANCIAL SVC 339.70
0013441 12/14/2021 [2086] 29 PALMS FOOD PANTRY & OUT REACH MINISTRIES 942.61 0013442 12/14/2021 [3581] ADVANCED IMAGING SOLUTIONS 198.62 0013443 12/14/2021 [1005] AFLAC 1,079.13
0013444 12/14/2021 [1008] ANIMAL ACTION LEAGUE INC 2,465.00 0013445 12/14/2021 [1010] ANIMAL HEALTH AND SANITARY SUPPLY 1,329.75 0013446 12/14/2021 [3585] ANIMAL SAMARITANS 52.00
0013447 12/14/2021 [1014] ARROWHEAD CREDIT UNION 11,067.00 0013448 12/14/2021 [1017] AUTOZONE (0842) 778.96
0013449 12/14/2021 [1037] BURRTEC WASTE & RECYCLING (2692) 302,378.19 0013450 12/14/2021 [1374] DAVID BAILEYS AUTO REPAIR INC (0703) 227.00 0013451 12/14/2021 [1080] DAVID EVANS AND ASSOCIATES INC 6,561.21 0013452 12/14/2021 [1087] DESERT HARDWARE (0301) 97.24
0013453 12/14/2021 [1109] GALLS LLC 549.38
0013454 12/14/2021 [1122] HI DESERT PUBLISHING 550.94
0013455 12/14/2021 [2164] INNOVATIVE FEDERAL STRATEGIES LLC 3,800.00 0013456 12/14/2021 [0516] MATTHEW C KLINK 17.81
0013457 12/14/2021 [2022] LAMAR COMPANIES (8442) 1,000.00 0013458 12/14/2021 [1150] MARK SPEER AUTOMOTIVE (2109) 510.02 0013459 12/14/2021 [0001] ONE TIME VENDOR - CYNTHIA JORDAN 150.00 0013460 12/14/2021 [0001] ONE TIME VENDOR - ASSOCIATION OF DEFENSE 450.00 0013461 12/14/2021 [1190] PARKER COUNTY APPRAISAL DISTRICT 63.92 0013462 12/14/2021 [1217] SBCTA 6,458.00
0013463 12/14/2021 [1230] SCE 645.52
0013464[VOID] 12/14/2021 [0514] ZACHARY S SIEDSCHLAG 230.01 0013465 12/14/2021 [1231] SPARKLETTS 236.32
0013466 12/14/2021 [1249] SPECTRUM 115.43
0013467 12/14/2021 [2697] STERICYCLE INC 79.33
0013468 12/14/2021 [1254] TROPHY EXPRESS 311.77
0013469 12/14/2021 [1259] TWENTYNINE PALMS WATER DISTRICT 815.89 0013470 12/14/2021 [1275] VICKIE (3145) WAITE 150.00
0013471 12/22/2021 [1001] LORI (8411) ABDELNOUR 1,475.00 0013472 12/22/2021 [3579] MATTHEW ALEXANDER 855.00
0013473 12/22/2021 [1007] ANDY'S LANDSCAPE AND TREE SERVICE (3803) 1,975.00 Run: 1/19/2022 at 6:29 PM Page: 2

0013474 12/22/2021 [1014] ARROWHEAD CREDIT UNION 67.75
0013475 12/22/2021 [1017] AUTOZONE (0842) 20.62
0013476 12/22/2021 [2268] COUNTY OF SAN BERNARDINO 108.76 0013477 12/22/2021 [1374] DAVID BAILEYS AUTO REPAIR INC (0703) 170.25 0013479 12/22/2021 [1100] FEDEX 29.49
0013480 12/22/2021 [1107] FULTON DISTRIBUTING 270.46
0013482 12/22/2021 [3586] TORIN GRIMES 180.00
0013483 12/22/2021 [0510] ABIGAIL HERNANDEZ CONDE 250.00 0013484 12/22/2021 [1125] HINDERLITER DE LLAMAS & ASSOCIATES 1,213.49 0013485 12/22/2021 [1583] INLAND VALLEY SLADDEN ENGINEERING (2755) 3,000.00 0013486 12/22/2021 [2183] JOE A GONSALVES & SON 3,000.00 0013488 12/22/2021 [1150] MARK SPEER AUTOMOTIVE (2109) 8,643.10 0013489 12/22/2021 [3588] METLIFE SMALL BUSINESS CENTER 4,288.84 0013490 12/22/2021 [1167] MORONGO UNIFIED SCHOOL DISTRICT 2,925.75 0013491 12/22/2021 [1173] NATIONWIDE RETIREMENT SOLUTIONS 2,045.64 0013492 12/22/2021 [1172] NATIONWIDE RETIREMENT SOLUTIONS OB 126.65 0013493 12/22/2021 [1177] NEWCO DISTRIBUTORS INCORPORATED 1,621.64 0013494 12/22/2021 [1178] NEXTEL COMMUNICATIONS 164.65
0013495 12/22/2021 [1182] NV5 INC (8793) 69,482.90
0013496 12/22/2021 [1184] OFFICE DEPOT CREDIT PLAN 486.66 0013497 12/22/2021 [0001] ONE TIME VENDOR - LAUREN & JOEL WHITE 86.00 0013498 12/22/2021 [0001] ONE TIME VENDOR - JUSTIN QUALKENBUSH 150.00 0013499 12/22/2021 [1196] PITNEY BOWES 76.77
0013500 12/22/2021 [2355] RELIANCE STANDARD LIFE INSURANCE CO. 1,871.02 0013501 12/22/2021 [1209] ROGERS ANDERSON MALADY AND SCOTT (2807) 2,500.00 0013502 12/22/2021 [1212] RUTAN AND TUCKER 312.50
0013504 12/22/2021 [1213] SAN BERNARDINO CO SHERIFFS DEPT 370,759.00 0013505 12/22/2021 [1230] SCE 466.47
0013506 12/22/2021 [1744] SIEMENS MOBILITY, INC (4403) 735.00 0013507 12/22/2021 [3056] SOAP SUDS CLEANING SERVICE (9049) 3,500.00 0013508 12/22/2021 [1249] SPECTRUM 22.17
0013509 12/22/2021 [1249] SPECTRUM 38.20
0013510 12/22/2021 [1249] SPECTRUM 12.59
0013511 12/22/2021 [1249] SPECTRUM 32.85
0013512 12/22/2021 [1249] SPECTRUM 119.99
0013513 12/22/2021 [1249] SPECTRUM 144.98
0013514 12/22/2021 [2697] STERICYCLE INC 132.95
0013515 12/22/2021 [2484] TERRA NOVA PLANNING & RESEARCH INC. (9096) 11,342.50 0013516 12/22/2021 [1259] TWENTYNINE PALMS WATER DISTRICT 7,422.07 0013517 12/22/2021 [1141] US ROOTER (1187) 1,850.00
0013518 12/22/2021 [1269] VALIC C/O JP MORGAN CHASE 2,708.97 0013519 12/22/2021 [1270] VALLEY INDEPENDENT PRINTING 819.98 0013520 12/22/2021 [1271] VCA 29 PALMS ANIMAL HOSPITAL (0319) 40.35 0013521 12/22/2021 [0171] CYNTHIA VILLESCAS 19.45
0013522 12/22/2021 [1274] VSP 661.80
0013523 12/22/2021 [2528] WELLS FARGO VENDOR FIN SERV 173.48 0013524 1/03/2022 [0368] DEBORAH MCREYNOLDS 995.91
0013525 1/03/2022 [0368] DEBORAH MCREYNOLDS 448.87
0013526 1/03/2022 [1212] RUTAN AND TUCKER 21,014.25
0013529 1/05/2022 [2086] 29 PALMS FOOD PANTRY & OUT REACH MINISTRIES 740.00 0013530 1/05/2022 [2680] AIS 80.38
Run: 1/19/2022 at 6:29 PM Page: 3

0013531 1/05/2022 [3121] AMERICAN EXPRESS 6,093.98
0013532 1/05/2022 [1015] ASCAP 390.00
0013533 1/05/2022 [1137] BILL'S DIESEL 250.00
0013538 1/05/2022 [1052] CHARLES ABBOTT ASSOCIATES INC 40,793.38 0013541 1/05/2022 [1053] CINTAS CORPORATION (8315) 661.59 0013542 1/05/2022 [1038] CMRSFP 900.00
0013545 1/05/2022 [2785] COPY CENTER PLUS INC. (8893) 153.64 0013546 1/05/2022 [2904] DILIGENT CORP 16,076.50
0013548 1/05/2022 [1096] ENDURA STEEL 3,340.25
0013549 1/05/2022 [1106] FRONTIER 800.00
0013550 1/05/2022 [1106] FRONTIER 78.09
0013551 1/05/2022 [1106] FRONTIER 79.64
0013552 1/05/2022 [1106] FRONTIER 188.43
0013553 1/05/2022 [1106] FRONTIER 7.04
0013554 1/05/2022 [1126] HI-WAY SAFETY 875.11
0013555 1/05/2022 [2732] HOLT ARCHITECTURE 32,191.70
0013556 1/05/2022 [1133] IMAGE SOURCE 82.32
0013558 1/05/2022 [3541] KOFF & ASSOCIATES INC. 1,356.25 0013559 1/05/2022 [2022] LAMAR COMPANIES (8442) 1,000.00 0013561 1/05/2022 [1149] LLOYD PEST CONTROL CO INC (8202) 432.00 0013562 1/05/2022 [1150] MARK SPEER AUTOMOTIVE (2109) 41.75 0013564 1/05/2022 [3569] MCCUE MECHANICAL 960.00
0013567 1/05/2022 [1173] NATIONWIDE RETIREMENT SOLUTIONS 2,045.64 0013568 1/05/2022 [1172] NATIONWIDE RETIREMENT SOLUTIONS OB 87.70 0013569 1/05/2022 [3589] NETFILE INC 3,400.00
0013570 1/05/2022 [1175] AARON NEVEU 215.00
0013571 1/05/2022 [3583] NEXTECH SYSTEMS INC 3,199.76
0013572 1/05/2022 [1182] NV5 INC (8793) 37,912.51
0013573 1/05/2022 [0001] ONE TIME VENDOR - C.V.S.P.I.N. 395.00 0013574 1/05/2022 [2582] OREILLY 599.56
0013575 1/05/2022 [2231] PAYCHEX INC 945.34
0013577 1/05/2022 [1203] REACH OUT MORONGO BASIN (5005) 14,180.74 0013578 1/05/2022 [1230] SCE 26,135.10
0013579 1/05/2022 [2997] SESAC 1,025.00
0013580 1/05/2022 [1249] SPECTRUM 119.99
0013581 1/05/2022 [1249] SPECTRUM 134.98
0013582 1/05/2022 [1249] SPECTRUM 119.99
0013583 1/05/2022 [1249] SPECTRUM 66.17
0013584 1/05/2022 [1249] SPECTRUM 104.98
0013585 1/05/2022 [2484] TERRA NOVA PLANNING & RESEARCH INC. (9096) 10,430.00 0013586 1/05/2022 [2420] THALES CONSULTING 3,000.00
0013587 1/05/2022 [1243] THE GAS COMPANY 2,964.86
0013589 1/05/2022 [1255] TURF STAR INCORPORATED 314.35
0013590 1/05/2022 [1259] TWENTYNINE PALMS WATER DISTRICT 87.11 0013591 1/05/2022 [1268] VAGABOND WELDING SUPPLY 25.86
0013592 1/05/2022 [1269] VALIC C/O JP MORGAN CHASE 2,683.97 0013593 1/05/2022 [1270] VALLEY INDEPENDENT PRINTING 394.76 0013594 1/05/2022 [1271] VCA 29 PALMS ANIMAL HOSPITAL (0319) 1,921.05 0013598 1/12/2022 [1506] A NEW CREATION FLOWERS & GIFTS (2187) 96.98 0013599 1/12/2022 [1507] ALL STAR GLASS INC (2200) 17.00 0013600 1/12/2022 [1014] ARROWHEAD CREDIT UNION 6,408.34 Run: 1/19/2022 at 6:29 PM Page: 4

0013601 1/12/2022 [1037] BURRTEC WASTE & RECYCLING (2692) 505,897.11 0013602 1/12/2022 [1037] BURRTEC WASTE & RECYCLING (2692) 152.46 0013603 1/12/2022 [1079] DATA TICKET INC 405.00
0013604 1/12/2022 [1080] DAVID EVANS AND ASSOCIATES INC 11,921.42 0013605 1/12/2022 [1087] DESERT HARDWARE (0301) 246.31
0013606 1/12/2022 [2194] DIVISION OF THE STATE ARCHITECT 136.40 0013607 1/12/2022 [2740] GOVOFFICE LLC 500.00
0013608 1/12/2022 [1122] HI DESERT PUBLISHING 568.00
0013609 1/12/2022 [1128] HUB INTERNATIONAL INSURANCE SVC 102.28 0013610 1/12/2022 [2934] I-BANK US BANK 19,414.65
0013611 1/12/2022 [1133] IMAGE SOURCE 307.94
0013612 1/12/2022 [2164] INNOVATIVE FEDERAL STRATEGIES LLC 3,800.00 0013613 1/12/2022 [1144] JAMES W (2985) KYLE 1,340.00
0013614 1/12/2022 [1151] ELIJAH (2503) MARSHALL 408.38
0013615 1/12/2022 [1228] NCSI 18.50
0013616 1/12/2022 [0001] ONE TIME VENDOR - CHIN PERNG 40.00 0013617 1/12/2022 [2499] RACKSPACE US, INC 5,962.97
0013618 1/12/2022 [1216] SAN BERNARDINO CO FIRE DEPARTMENT 5,881.55 0013619 1/12/2022 [1230] SCE 6,797.92
0013620 1/12/2022 [1231] SPARKLETTS 299.35
0013621 1/12/2022 [1249] SPECTRUM 115.43
0013622 1/12/2022 [1254] TROPHY EXPRESS 24.73
0013623 1/12/2022 [1273] VERIZON WIRELESS 2,550.16
0013624 1/12/2022 [1287] XEROX FINANCIAL SVC 339.70
0013625 1/19/2022 [3581] ADVANCED IMAGING SOLUTIONS 198.62 0013626 1/19/2022 [1005] AFLAC 597.62
0013627 1/19/2022 [2680] AIS 100.80
0013628 1/19/2022 [1017] AUTOZONE (0842) 174.32
0013629 1/19/2022 [3591] AVCOM SERVICES 162.50
0013630 1/19/2022 [1037] BURRTEC WASTE & RECYCLING (2692) 16,681.46 0013631 1/19/2022 [1046] CAMPBELL PET CO 194.19
0013632 1/19/2022 [1081] STEPHEN F DAVIS 400.00
0013633 1/19/2022 [2930] DEIBERT'S LASER ENGRAVING & IMAGING (8987) 90.00 0013634 1/19/2022 [2898] ENVIROMINE, INC 2,288.61
0013635 1/19/2022 [1100] FEDEX 58.65
0013636 1/19/2022 [2985] GOLDSTAR ASPHALT PRODUCTS 10,451.75 0013637 1/19/2022 [1122] HI DESERT PUBLISHING 99.00
0013639 1/19/2022 [1150] MARK SPEER AUTOMOTIVE (2109) 1,610.82 0013640 1/19/2022 [3569] MCCUE MECHANICAL 2,520.00
0013641 1/19/2022 [1164] MORONGO BASIN BROADCASTING CORP 557.00 0013642 1/19/2022 [1173] NATIONWIDE RETIREMENT SOLUTIONS 2,426.43 0013643 1/19/2022 [1172] NATIONWIDE RETIREMENT SOLUTIONS OB 85.63 0013644 1/19/2022 [1178] NEXTEL COMMUNICATIONS 187.24
0013645 1/19/2022 [1184] OFFICE DEPOT CREDIT PLAN 204.68 0013646 1/19/2022 [0001] ONE TIME VENDOR - SHAYNE ROBERTS 132.00 0013647 1/19/2022 [1036] PARKER'S BUILDING SUPPLY 29 PALMS (8036) 452.71 0013648 1/19/2022 [1230] SCE 279.77
0013649 1/19/2022 [0514] ZACHARY S SIEDSCHLAG 230.01
0013650 1/19/2022 [1249] SPECTRUM 12.59
0013651 1/19/2022 [1249] SPECTRUM 119.99
0013652 1/19/2022 [3186] STILES ANIMAL REMOVAL INC. 1,650.00 Run: 1/19/2022 at 6:29 PM Page: 5

0013653 1/19/2022 [1269] VALIC C/O JP MORGAN CHASE 2,683.97 0013654 1/19/2022 [1271] VCA 29 PALMS ANIMAL HOSPITAL (0319) 145.00 0013655 1/19/2022 [1271] VCA 29 PALMS ANIMAL HOSPITAL (0319) 74.90 0013656 1/19/2022 [2528] WELLS FARGO VENDOR FIN SERV 86.74 1861457 12/20/2021 [2231] PAYCHEX INC 273.60
24395267 12/10/2021 [2231] PAYCHEX INC 120.00
CCF120721 12/07/2021 [2412] CREDIT CARD FEES 2,049.24
EFT 12/17/2021 74,158.57
EFT 12/17/2021 11,158.08
EFT 12/31/2021 71,664.96
EFT 12/03/2021 13,806.11
EFT 12/03/2021 73,457.38
ESCNO219750- 12/23/2021 [3446] CLAREMONT ESCROW, INC. 500,311.09 FSAR 12/31/2021 [2231] PAYCHEX INC 692.57
GA120221 12/02/2021 [1055] PAYROLL 1,010.30
GA121621 12/16/2021 [1055] PAYROLL 886.81
GA123021 12/30/2021 [1055] PAYROLL 396.92
HRA011322 1/13/2022 [2367] MIDAMERICA 7,071.87
HRA121621 12/16/2021 [2367] MIDAMERICA 6,720.87
PERS457121621 12/16/2021 [1044] CALPERS 1,215.05
PERS457122921 12/29/2021 [1044] CALPERS 1,215.05
PERSDC120921 12/09/2021 [1044] CALPERS 1,215.05
PERSH120921 12/09/2021 [1044] CALPERS 21,874.98
PERSR121521 12/15/2021 [1044] CALPERS 16,902.13
PERSR121621 12/16/2021 [1044] CALPERS 16,548.39
PERSR122921 12/29/2021 [1044] CALPERS 16,346.82
PRT120321 12/03/2021 [1055] PAYROLL 21,355.51
PRTX121721 12/17/2021 [1055] PAYROLL 17,870.12
PRTX123121 12/31/2021 [1055] PAYROLL 17,488.91
WIRE011022 1/10/2022 [1101] FIDELITY NATIONAL TITLE COMPANY 1,500.00 Approved by: Date:

Total Checks: 2,709,685.86
Run: 1/19/2022 at 6:29 PM Page: 6

STAFF REPORT
TO: City Council
FROM: City Manager
FOR MEETING: Jan 25 2022
SUBJECT: Electronic Scooters on Roadways.

RECOMMENDATION:

The City Council approve Resolution No. 22-___ authorizing the operation of electronic scooters on roadways with a speed limit of 35 miles per hour.

ORDER OF PROCEDURE:

Request Staff Report (City Manager Presenting)
Council Questions of Staff
Request for Public Comments
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• Resolution
BACKGROUND:

On September 19, 2018, the State of California enacted new laws regarding motorized scooters. Assembly Bill No. 2989 amended Section 21235 of the California Vehicle Code, which includes, but is not limited to, the following new laws:

A motorized scooter cannot operate on a roadway with a speed limit in excess of 25 miles per hour (mph), unless within a Class II bike lane or Class IV bikeway.

A motorized scooter may operate on a roadway with a speed limit greater than 25 mph, but less than 35 mph if authorized via Ordinance or Resolution by the City Council.

A motorized scooter cannot operate upon a sidewalk, except as necessary to enter or leave adjacent property.

A motorized scooter cannot be placed laying on its side on a sidewalk, or park a motorized scooter on a sidewalk in any other position that obstructs a pedestrian’s path of travel.

No person under 18 years of age shall operate a motorized scooter without a properly fitted and fastened bicycle helmet.

No person without a valid driver’s license or instruction permit shall operate a motorized scooter.

This City has entered into a 12-month pilot program with Bird that would launch 50 electric scooters in our City. This 12-month period would be an opportunity for evaluation of both Bird and the City. There is also a 30-day cancellation policy in the agreement for either party. The agreement and associated liability have been reviewed by the City's risk pool and the City Attorney.

ENVIRONMENTAL:

None
ALTERNATIVES:

The City Council could choose not to approve the Resolution.

FISCAL IMPACT:

None for this action, outside of Legal Review.

2905/014122-0001
17383182.2 a01/18/22

CITY OF TWENTYNINE PALMS

CITY COUNCIL
RESOLUTION NO. 22 -___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

TWENTYNINE PALMS AUTHORIZING THE OPERATION OF

MOTORIZED SCOOTERS ON HIGHWAYS WITH A SPEED LIMIT OF UP TO 35 MILES PER HOUR
WHEREAS, California Vehicle Code Section 21235 generally prohibits the operation of motorized scooters (which for purposes of this resolution shall have the same meaning as set forth in Vehicle Code Section 360) on highways (which for purposes of this resolution shall have the same meaning as set forth in Vehicle Code Section 407.5) with a speed limit in excess of 25 miles per hour unless the motorized scooter is operated within a Class II or Class IV bikeway; and WHEREAS, Assembly Bill 2989 amended Vehicle Code Section 21235 to authorize local agencies to adopt a resolution by which they may authorize the operation of motorized scooters on highways with a speed limit of up to 35 miles per hour; and
WHEREAS, pursuant to Assembly Bill 2989, the City Council of Twentynine Palms desires to authorize the operation of a motorized scooter on highways within the City of Twentynine Palms with speed limits up to 35 miles per hour.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TWENTYNINE PALMS, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:

SECTION 1: The above recitals are true and correct and incorporated herein.

SECTION 2: The operation of motorized scooters is hereby authorized on highways within the City of Twentynine Palms with speed limits up to 35 miles per hour.

SECTION 3: The operation of motorized scooters on highways in the City shall be subject to all other provisions of Vehicle Code Section 21235, including specifically, without limitation, the application of the 15 miles per hour maximum speed specified in California Vehicle Code section 22411, regardless of the speed limit of the applicable highway.

SECTION 5: This Resolution shall take effect immediately upon its adoption.

SECTION 6: The City Clerk shall certify to the passage and adoption of this resolution.

2905/014122-0001
17383182.2 a01/18/22 -2-
PASSED, APPROVED, AND ADOPTED this 25th day of January 2022.

Karmolette O’Gilvie, Mayor
Cindy Villescas CMC, City Clerk
I do hereby certify that the foregoing Resolution No. 22- __, was duly adopted by the City Council of the City of Twentynine Palms at a regular meeting thereof held on 25 day of January, 2022, by the following vote:

AYES: COUNCILMEMBER:

NOES: COUNCILMEMBER:

ABSENT: COUNCILMEMBER:

ABSTAIN: COUNCILMEMBER:
________________________________
Cindy Villescas CMC, City Clerk
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
________________________________
City Attorney

STAFF REPORT
TO: City Council
FROM: City Manager
FOR MEETING: Jan 25 2022
SUBJECT: Environmental Initial Study (IS) for Trunk Sewer System.

RECOMMENDATION:

The City Council authorize the City Manager to negotiate and execute the environmental proposal by Terra Nova Planning and Research, Inc. in the amount of $173,970.

ORDER OF PROCEDURE:

Request Staff Report (City Manager Presenting)
Council Questions of Staff
Request for Public Comments
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• Environmental Proposal
BACKGROUND:

The State Water Resources Control Board (SWRCB) administers the State Revolving Fund (SRF) program. The SRF program has a fixed amount of funds available each Fiscal Year and provides grants and loans to wastewater treatment projects on a first come-first-serve basis. Under this program, eligible projects can apply for grants and loans with interest rates that are roughly half of the State General Obligation Rate. These favorable terms help lower total project costs, minimizing the financial impacts of projects on ratepayers. The City by definition of SWRCB is a disadvantage community (DAC) which gives the City and the project advantages for funding, like debt forgiveness which we have received for this funding.

The City has received $960,000 for planning and development for the implementation of the Wastewater and Sewer project for the City. This funding can be used for the joint-use facility with the Base or the individual project for the City. Attached is the State approved funding agreement and scope of work with schedule. The City has a wastewater/sewer engineer (NV5), environmental consultant (Terra Nova), and wastewater financial consultant (Wildan Financial Services) already procured from Project Phoenix; however, we still need to get an outreach consultant under contract.

The City of Twentynine Palms is primarily on septic tanks. It is proposed by the Colorado River Regional Water Quality Control Board that septic tanks are NOT a tenable solution for treating wastewater for our community.

Today, the water quality in the City is excellent, but it is the concern of the long-term impacts potentially to our groundwater supply. The common solution to protecting our groundwater supply from potential discharge contamination is a centralized wastewater treatment and sewer collection system. The City of Twentynine Palms has collaborated with Marine Corps Air/Ground Combat Center (MCAGCC) on a joint use wastewater facility.

However, the City would need to expand the capacity at the joint use facility and develop a sewer collection Page 21 of 232 system within the City. This grant will allow the City to accomplish four tasks: 1. Environmental 2. Preliminary Design 3. Financial Feasibility 4. Outreach.

Terra Nova's extensive experience in environmental assessment and planning includes land surveys, natural resource assessments and inventories, and a wide range of special studies. They have prepared and processed hundreds of environmental documents in compliance with the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA).

The City is planning a sanitary sewer trunk line system, which will either connect to a new treatment plant and the Marine Corps Base, or to a City-owned treatment plant on 20± acres located east of Adobe Road and north of Amboy Road. The trunk line system totals approximately 30 miles. For purposes of this proposal, these assumptions have been used in estimating costs associated with biological and cultural resource surveys. This proposal also assumes that the document will require “CEQA Plus” level analysis, to comply with Regional Water Quality Control Board requirements, and that no NEPA compliance will be required unless the Joint Use Facility is realized and the City has to connect.

ENVIRONMENTAL:

This is the process for Environmental Review.

ALTERNATIVES:

The City Council could choose not to approve this Contract and give alternative recommendations.

FISCAL IMPACT:
$173,970 is paid through our Grant from State Water of $960,000.

TERRA NOVA PLANNING & RESEARCH, INC.
42635 MELANIE PLACE, SUITE 101, PALM DESERT, CA 92211 (760) 341-4800 December 7, 2021
Mr. Frank Luckino
City Manager
City of Twentynine Palms
6136 Adobe Road
Twentynine Palms, CA 92277
RE: Proposal to Prepare an Initial Study, Trunk Sewer System Dear Frank:

Based on the preliminary plans we received from NV5, and our emails and conversations in recent weeks, we have prepared the following scope of work and budget for the preparation of an Initial Study, likely leading to a Mitigated Negative Declaration, for the Trunk Sewer System project.

Understanding of Project and Scope of Work
The City is planning a sanitary sewer trunk line system, which will either connect to a new treatment plant and the Marine Corps Base, or to a City-owned treatment plant on 20± acres located east of Adobe Road and north of Amboy Road. The trunk line system, as depicted in the engineer’s exhibits (Figures 4 and 5, provided to Terra Nova on November 12, 2021), total approximately 30 miles. For purposes of this proposal, these assumptions have been used in estimating costs associated with biological and cultural resource surveys. This proposal also assumes that the document will require “CEQA Plus” level analysis, to comply with Regional Water Quality Control Board requirements, and that no NEPA compliance will be required.

The City has determined that an Initial Study (IS) is required under the California Environmental Quality Act for this project. Based on our professional judgement and discussions with City staff, it is anticipated that technical studies will be required to address biological and cultural resources.

Based on the City’s traffic policy and our understanding of the project, it is not believed that a traffic study will be required. This proposal provides turn key services, including distributing of AB 52 consultation letters, transmittal of the IS to the City’s responsible agencies, the County and State Clearinghouse (if necessary), and response to comments if required.

Based on our understanding of the project, we have prepared the following scope of work. o Coordinate with City Staff to develop a comprehensive project description. The project description will be used as the basis for all Initial Study discussions and comparisons. o Secure AB 52 mailing lists, and prepare mail-merged letters for distribution on City’s behalf.

City will be responsible for consultation, should it be requested by any Tribe.

Mr. Frank Luckino
December 7, 2021

o Prepare air quality and greenhouse gas model runs for the proposed project. The analysis shall include demolition (if any), grading, construction and operational phases of the project. We will rely on data from NV5 regarding estimated depth of trenching, earthwork, and extent of construction equipment and timing to develop air quality modeling assumptions. The findings of the analysis shall be integrated into the Initial Study. o Contract for and manage the preparation of multiple biological resources surveys, as described below. The first task will be the general biological resource survey, which will determine the level of specialized surveys required. All have been scoped below; whether they will be necessary will depend on the findings of the general survey. o General Biological Resource Survey: The survey will include a literature search, review of previously prepared surveys, and research into established databases. A reconnaissance level survey will be conducted along the alignment of trunk lines and at the proposed treatments plant site. Vegetation, habitat suitability and species identified will be catalogued and recorded. A report of findings, including the need for additional surveys, if required, will be generated.
o Protocol-Compliant Burrowing Owl Survey: Burrowing owl surveys consistent with CDFW protocols will be conducted for burrows identified as habitat, or individuals identified in the general biological resource survey. Four surveys will be conducted during the survey period (April through July). If the species is identified, relocation planning will be required. Relocation is neither scoped or budgeted herein, and would be addressed separately if the need arises.
o Focused Plant Surveys: If required, plant surveys for Parish’s onion, Wright’s beebrush, alkali mariposa lily, Heckard’s paintbrush, Alverson’s foxtail cactus, Utah vine milkweed, ribbed cryptantha, Coulter’s goldfields, salt spring checkbloom, Laguna Mountains Jewelflower and jackass-clover will be conduced during spring season to determine presence.
o Desert Tortoise Survey: Complete protocol-compliant Desert Tortoise presence/absence survey consistent with USFWS requirements. The surveys will include field work over a two day period, recording of identified individuals, sign and/or burrows, and recommendations on mitigation measures. No relocation plan is proposed at this time.

Should it be necessary, it will be scoped and budgeted separately. o Jurisdictional Delineation: It is expected that some alignments are proposed within existing Waters of the State. A jurisdictional delineation will be completed to quantify the areas of impact (temporary and permanent) based on the engineered drawings. The calculations will be based on each identified drainage, so that mitigation can be calculated in the future based on the area to be improved.

The findings of the analysis shall be integrated into the Initial Study. o Contract for and manage the preparation of a cultural resources survey, to include records search and on-site recognizance for archaeological and historic resources along the alignments and the treatment plant site. The findings of the analysis shall be integrated into the Initial Study.

Mr. Frank Luckino
December 7, 2021

o Complete the CEQA Initial Study (IS) and associated discussions in a format acceptable to the City, analyzing all components of the project. Submit screencheck copy to City staff for review and comment. The IS shall include all required sections of the checklist. o Complete the RWQCB environmental application and process the document through the Board process.
o City staff shall review the screencheck copy of IS, and Terra Nova shall amend the draft accordingly.
o Terra Nova shall prepare a final electronic (Word and PDF) document for submittal to the City.

Terra Nova will be responsible for distribution of the IS to the City’s responsible and trustee agencies, and will provide documentation of receipt for all transmittals. o Terra Nova will prepare the Notice of Intent, Notice of Completion and Notice of Determination for the City’s use. The City will post and publish the NOI and NOD, and Terra Nova will transmit the NOI and NOC to the County and State Clearinghouse for posting. o City staff shall provide Terra Nova with any comment letters received during the IS comment period. Terra Nova shall prepare responses to these comments for inclusion in the staff report to be prepared by City. Up to 6 hours has been included for this task. Should any additional time be required, it shall be approved by the City in advance of undertaking any additional expense.
o Terra Nova will attend one Planning Commission and one City Council hearing and represent the CEQA document at these hearings.
o Optional Addition: As it is expected that a 1602 Agreement will be required with CDFW, and a 401 Certification from the Regional Water Quality Control Board, the time to prepare these two applications and process them through both agencies has been provided as an option below.

Budget
Based on the scope of work provided above, we have prepared the following budget.

Mr. Frank Luckino
December 7, 2021

Budget Category Amount
Client and Internal Consultation and Meetings $ 5,850.00 Data Collection, SB 18 & AB 52, Field Surveys $ 3,900.00 General Biological Resources Survey $ 18,500.00
Burrowing Owl Surveys $ 13,900.00
Sensitive Plant Surveys $ 21,500.00
Desert Tortoise Surveys $ 16,050.00
Jurisdictional Delineation $ 15,500.00
Cultural Resources Survey $ 24,460.00
Air Quality & GHG Analysis (CalEEMOD) $ 6,800.00
Document Drafting $ 10,550.00
Preparation and Processing of RWQCB Environmental Application $ 5,500.00 Response to Comments (6 hours) $ 1,170.00
Project Management & City Staff Support $ 9,000.00
Public Hearing Attendance (2) $ 2,340.00
Exhibit Preparation $ 1,300.00
Admin. Support (Doc. Formatting & Transmittals) $ 1,350.00 Misc. Office: Printing of document for distribution, UPS delivery, etc. $ 1,500.00 Total $ 159,170.00
Optional Addition: 1602 Agreement and 401 Certification $ 14,800.00 Total with Optional Addition $ 173,970.00
Conclusion
Based on the assumptions above, and the information we received from you, I believe the scope and budget reflect the level of effort required to complete the work. Please let me know if you have any questions or need additional information.

Sincerely,
Nicole Sauviat Criste
Principal

STAFF REPORT
TO: City Council
FROM: City Manager
FOR MEETING: Jan 25 2022
SUBJECT: Adopt Resolution to Authorize Submittal of Application to CalRecycle for all CalRecycle Grant and Payment Programs.

RECOMMENDATION:

The City Council Adopt Resolution No. 22-___authorizing the City Manager to submit applications and payment requests related to the administration of all CalRecycle Grant and Payment Programs offered by the California Department of Resources Recycling and Recovery (CalRecycle).

ORDER OF PROCEDURE:

Request Staff Report (City Manager Presenting)
Council Questions of Staff
Public Comments
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• CalRecycle Reso 22_
BACKGROUND:

The fundamental goal of CalRecycle’s beverage container recycling program is to reach and maintain an 80 percent recycling rate for all California Refund Value beverage containers-aluminum, glass, plastic and bi-metal. Projects implemented by cities and counties will assist in reaching and maintaining this goal.

The City typically receives approximately $7,500 per year from CalRecycle’s City/County Beverage Container Recycling Payment Program. Funding is primarily used for the City’s Cash for Trash Program, Adopt-A-Street Program and public area clean-up events where any beverage containers found would be recycled. In order for the City of Twentynine Palms to continue to be a recipient of the CalRecycle’s Payment Program, the City Council must declare by Resolution certain authorization related to the program administration.

This Resolution allows the City Manager, or designee, to authorize all necessary documents to secure payment to support the Payment Programs awarded to the City of Twentynine Palms by CalRecycle. This Resolution will be effective until January 25, 2027.

ENVIRONMENTAL:

None.

ALTERNATIVES:

The City Council could choose not to adopt the Resolution.

FISCAL IMPACT:

Adopting the attached Resolution will ensure that the City of Twentynine Palms is eligible to continue receiving the annual payment of approximately $7,500 per year from CalRecycle for the Beverage Container Recycling Payment Program.

CITY OF TWENTYNINE PALMS

CITY COUNCIL
RESOLUTION NO. 22-___

A RESOLUTION OF THE CITY OF TWENTYNINE PALMS

AUTHORIZING SUBMITTAL OF APPLICATION(S) FOR ALL

CALRECYCLE GRANT AND PAYMENT PROGRAMS FOR WHICH THE

CITY OF TWENTYNINE PALMS IS ELIGIBLE
WHEREAS, Public Resources Code sections 48000 et seq., 14581, and 42023.1(g), authorize the Department of Resources Recycling and Recovery (CalRecycle) to administer various grant and payment programs in furtherance of the State of California’s (state) efforts to reduce, recycle and reuse solid waste generated in the state thereby preserving landfill capacity and protecting public health and safety and the environment; and
WHEREAS, in furtherance of this authority, CalRecycle is required to establish procedures governing the administration of the payment programs; and administration of the application, awarding, and management of the grant programs; and WHEREAS, CalRecycle’s procedures for administering payment and grant programs require, among other things, an applicant’s governing body to declare by resolution certain authorizations related to the administration of the payment and grant program.

NOW, THEREFORE, BE IT RESOLVED that City of Twentynine Palms is authorized to submit an application to CalRecycle for any and all grant and payment programs offered; and
BE IT FURTHER RESOLVED that the City Manager, or his/her designee is hereby authorized and empowered to execute in the name of the City of Twentynine Palms all documents, including but not limited to, applications, agreements, amendments, and requests for payment, necessary to secure funds and implement the approved grant or payment project; and
BE IT FURTHER RESOLVED that these authorizations are effective from the date of adoption through January 25, 2027 (maximum of five (5) years). _______________________________
Karmolette O’Gilvie, Mayor
___________________________________
Cindy Villescas CMC, City Clerk

I do hereby certify that the foregoing Resolution No. 22- __, was duly adopted by the City Council of the City of Twentynine Palms at a regular meeting thereof held on ___ day of ________, 2022, by the following vote:

AYES: COUNCILMEMBER:

NOES: COUNCILMEMBER:

ABSENT: COUNCILMEMBER:

ABSTAIN: COUNCILMEMBER:
________________________________
Cindy Villescas CMC, City Clerk

STAFF REPORT
TO: City Council
FROM: City Manager
FOR MEETING: Jan 25 2022
SUBJECT: Social Equity.

RECOMMENDATION:

The City Council authorize the City Manager negotiate and execute a professional service contract with Terra Nova Planning & Research, Inc. for the preparation of a Social Equity Element for the General Plan in the amount, not to exceed, $42,800.

ORDER OF PROCEDURE:

Request Staff Report (City Manager
Presenting)
Council Questions of Staff
Request Public Comment
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• Proposal and Scope of
Service
• Resolution No. 21-21
BACKGROUND:

The City Council gave direction with a Resolution on October 12,2021, to develop an element of our General Plan addressing Racism and Social Equity. The concept of social equity pertains to the idea that equal access to opportunity and quality of life should be accessible by all citizens, regardless of income, race, religion or other factors. In addition, the Housing Element update has begun to examine fair housing through furthering Fair Housing analysis, but more can be done. Under section 2 of the Resolution, it states therefore, "Collaborating with the City Council and Community to ensure public confidence that our general plan is equitable by ensuring that meaningful discussions are conducted," and a Racism element is added. Promoting and achieving social equity requires acknowledgement of minority communities that have historically faced great hardship in comparison to other communities, which the Council has done so.

ENVIRONMENTAL:

To be determined.

ALTERNATIVES:

The City Council could choose to add, change, or delete this proposal.

FISCAL IMPACT:

To be paid from ARPA (American Rescue Plan Act) funds.

TERRA NOVA PLANNING & RESEARCH, INC.
42635 MELANIE PLACE, SUITE 101, PALM DESERT, CA 92211 (760) 341-4800 December 7, 2021
Mr. Frank Luckino
City Manager
City of Twentynine Palms
6136 Adobe Road
Twentynine Palms, CA 92277
RE: Proposal to Prepare Social Equity Element for the General Plan Dear Frank:

Please find below our scope of work and budget for the preparation of a Social Equity Element for the General Plan.

Introduction
Terra Nova Planning & Research, Inc. (Terra Nova) has been asked by the City of Twentynine Palms to submit a proposal to draft an environmental justice (EJ), or environmental and social justice (ESJ), element for the City’s General Plan. The current City General Plan was adopted in 2012. At that time, an Environmental Justice element was not required but has become effective January 1, 2022. Environmental justice provisions for General Plans was established by adoption of Senate Bill 1000 (2016) and provides guidance for determining whether an EJ or equivalent is required in a local jurisdiction and the nature of environmental burdens, health risks, and needs on the population. An essential part of the General Plan Guideline updates includes addressing the needs of “disadvantaged communities”, which are defined as follows:
“Disadvantaged communities means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area that is a low-income area that is disproportionately affected by environmental pollution and other hazards that can lead to negative health effects, exposure or environmental degradation.” (Gov. Code Sec. 65302(h)(4)(A)
CalEnviroScreen 4.0 is a science-based database created by CalEPA and the Office of Environmental Health (OEHHA) to identify California communities that are most affected by pollution and especially vulnerable to the effects of pollution. It aggregates environmental, health, and socioeconomic data to generate a numerical score for each census tract in the State. Higher scores indicate higher pollution burden and population vulnerability. Census tracts with scores of 75% or higher are designated as “disadvantaged communities.” There are no census tracts within the City planning area that meet the CalEnviroScreen 4.0 threshold of the 65th percentile for “disadvantaged communities”.

Nonetheless, there are other criteria that should be considered in assessing social and environmental justice issues in the community. These include median household income, rents and

Mr. Frank Luckino
December 7, 2021

percentage of home ownership, levels of education, sensitive populations, employment, health, environmental hazards, and other criteria. These parameters of social and environmental justice should be evaluated in the ESJ.

Scope of Work
Government Code section 65302(h) includes several specific EJ requirements, which should be viewed as a starting point. Additional resources will also be consulted, including but not limited to available data on obesity, parks and trails locations, prevalence of secondary disease (high blood pressure, high cholesterol, heart disease, etc.) pedestrian and bicycler crash data, use of alternative modes of transportation, school access by mode, and multi-modal use by commuters A. Meet with City staff to establish a project schedule and refine the scope of work.

B. Conduct broad range of background research, compile data and information, and identify and map Disadvantaged Communities (DAC) and other special populations.

C. Establish an Advisory Group to gather input on community outreach strategies. Three meetings would be scheduled. The outreach and engagement plan shall include:
• Prepare outline of public outreach efforts, which could include an online community survey, public workshops, community meetings, and press releases. This effort should ensure every person who wishes to express an opinion has the ability to do so. • Identify an appropriate community/public outreach and engagement plan that meets the State’s general plan update requirements. Our approach will discuss different outreach approaches and recommend an effort to best involve stakeholders in the process. • Based on demographic and other research, develop proposed ESJ goals, policies, and objectives that serve to reduce pollution exposure, including improved of air quality, and promote public multi-modal transportation facilities, food access, safe and sanitary homes, and economic opportunity.
• Convene Advisory Group to present and receive feedback on the project. • Prepare for and attend community input meetings. Up to three community meetings are envisioned.
• In addition to the Planning Commission and City Council meetings outlined below. Terra Nova will be responsible for preparing any meeting information flyers advertising the community meetings/workshops, and the City will be responsible for mailing, posting, and distributing the flyers.
• Terra Nova shall submit the preliminary outreach and engagement plan framework which may include: website information portal, social media engagement and/or other proposed media outlets to the City. A final Outreach and Engagement Plan shall be prepared and submitted for review and approval within sixty (60) days of project initiation.

D. Present draft element to Advisory Group and make final revisions accordingly.

E. Conduct environmental review under the California Environmental Quality Act (CEQA) and qualify the project as exempt under CEQA, if possible.

F. Prepare staff reports and resolution for adoption of a new Element as a General Plan Amendment.

G. Prepare for and present project at the Planning Commission and City Council.

Mr. Frank Luckino
December 7, 2021

Budget
Based on the scope of work provided above, we have prepared the following budget.

Budget Category Amount
Client and Internal Consultation and Meetings $ 4,000.00 Data Collection, Demographic and Social Research $ 2,800.00 Advisory Group Meetings (3) $ 6,000.00
Draft Element Preparation $ 7,700.00
Community Outreach and Meetings (3) $ 8,000.00
Hearing Draft Element Preparation $ 1,500.00
Project Management & City Staff Support $ 6,000.00
Public Hearing Attendance (2) $ 2,400.00
GIS Data Mining, Analysis and Exhibit Preparation $ 2,000.00 Admin. Support (Doc. Formatting & Transmittals) $ 900.00 Misc. Office: Printing of document for distribution, UPS delivery, etc. $ 1,500.00 Total $ 42,800.00
Conclusion
Based on the assumptions above, and the information we received from you, I believe the scope and budget reflect the level of effort required to complete the work. Please let me know if you have any questions or need additional information.

Sincerely,
Nicole Sauviat Criste
Principal

CITY OF TWENTYNINE PALMS

CITY COUNCIL
RESOLUTION NO. 2I -21

A RESOLUTION DENOUNCING XENOPHOBIA/RACIAL INJUSTICE AND STRENGTHENING COMMITMENT TO RACIAL EQUIryDIVERSITY AND AFFIRMING XENOPHOBIA AS A

PUBLIC HEALTH CRISIS
WHEREAS, racism results in a structural absence ofopportunity and the assigning of a person's societal value based solely on physical characteristics, such as skin color, which creates unfair disadvantages for some individuals and communities; and WHEREAS, throughout history, racism has manifested in various ways such as discrimination and oppression directed lowards minority populations thereby resulting in trauma, terror, and long standing physical and mentalhealth impairments, and WHEREAS, through research by the National Demographic Corporation during the City Council Districting policy, minorities do not live predominately in any one area within the City of Twentynine Palms; and
WHEREAS, the United States Office of Disease Pfevention recognizes that racial discrimination negatively impacts health outcomes and further the United States Census Bureau has documented a significant increase in anxiety and depression among minorities: and
WHEREAS, systemic racism throughout the public and private sectors of society creates disparate outcomes in many areas of life that results in disparities in family stability, healthcare, physical and behavior health, mental wellness, education, employment, economic development, public satety, criminal justice, jncarceration, juvenile delinquency, and housing that disproportionately affects minorities; and WHEREAS, systemic racism creates various outcomes in many areas of life such as housing, education, employment, economic opportunity, public safety, the criminal justice system, and physical and behavioral health; and further has led to geographic segregation that disproportionately exposes minorities to lead poisoning, poor air quality, inadequate nutrition, and under-resourced recreational and healthcare facilities; and
WHEREAS, this City Council recognizes and respects the value of all human life and dignity, without prejudice to anyone;
NOW THEREFORE, BE IT RESOLVEO THAT:

The City of Twentynine Palms will:

PASSED, APPROVED, ANO ADOPTED on the 12rH day of october 2021 .

Daniel L. Mi , Sr,,
CMC, City Clerk
I hereby certiry that the foregoing Resolution No. 21-21 was duly adopted by the City Council of the City of Twentynine Palms at a regular meeting thereof, held on the 12h day of Oclober 2021 , by the following vote of the Council:

AYES:

NOES:

ABSENT:

ABSTAIN
COUNCILMEMBERS: BILDERAIN, KLINK, O'GlLVlE, V1/RlGHT, MINTZ COUNCILMEMBERS: NONE
COUNCILMEMBERS: NONE
COUNCILMEMBERS: NONE
Cindy Vil
Section '1. Along with the City Council declare that racism is a public health crisis and condemns racism, xenophobia, and racial injustice-Section 2. Collaborating with the City Council and Community to ensure public confidence that our general plan is equitable by ensuring that meaningful discussions are conducted, and a Racism element is added.

Section 3. Commit to centering its work and decision making on minorities who are disproportionately represented in our community.

CMC, City Clerk

STAFF REPORT
TO: City Council
FROM: Information Services Director
FOR MEETING: Jan 25 2022
SUBJECT: Second Reading and Adoption of an Ordinance Pertaining to Regulation of Solid Waste Including Organic Waste.

RECOMMENDATION:

The City Council approve the second reading of Ordinance No. 296 amending in its entirety, Title 10, Chapter 10.04 of the Twentynine Palms Municipal Code pertaining to the Regulation of Solid Waste including Organic Waste.

ORDER OF PROCEDURE:

Request Staff Report (Solid Waste Manager Presenting)
Council Questions of Staff
Council Discussion
Motion/Second
Discussion of Motion
Call the Question (Roll Call Vote)
ATTACHMENTS:
• Ordinance No. 296 - SB1383
• EXHIBIT A - SB 1383
BACKGROUND:

The City of Twentynine Palms (City) and Burrtec Waste and Recycling Services, LLC (Contractor) entered an agreement effective January 1, 2017 and an amendment to that agreement in 2019 for Solid Waste Handling Services” (collectively the “Agreement”). Senate Bill 1383 imposes a variety of obligations on the City related to diversion of Organic Waste from landfills. Of significance for this Staff Report, SB 1383 requires the City to adopt an Ordinance by which it can enforce various provisions of SB 1383 related to residential Organic Waste Recycling. Ultimately, the City will need to enter an amendment to the Agreement to ensure the various services required by SB 1383 are included in it. Staff is currently working with Burrtec on an amendment to the franchise agreement and will be bringing that to the Council for consideration in the future.

On September 19, 2016, Governor Brown signed into law Senate Bill (SB) 1383 establishing methane emissions reduction targets in a statewide effort to reduce emissions of short-lived climate pollutants (SLCP) in various sectors of the California economy. SB1383 is the State’s most ambitious waste reduction law in the last 30 years and enacts the following targets to reduce organic waste in CA landfills:
• 1) Achieve a 50% reduction of the level of the statewide disposal of organic waste from the 2014 level by 2020 and a 75% reduction by 2025.
• 2) Recover at least 20% of currently disposed surplus food by 2025.

Since landfills are the third largest producer of methane, the State’s SB1383 mandate and strategy includes managing organic waste such as food scraps, green waste, paper and cardboard for a significant portion of California’s overall waste stream which includes both the commercial and residential sectors.

To meet the SB1383 regulations, jurisdictions throughout the State are required to adopt an Ordinance or other similarly enforceable mechanism by January 1, 2022. The Ordinance will mandate that organic waste generators, haulers and other entities subject to the requirement of SB1383 must comply with SB1383 regulatory requirements. In summary, SB1383 mandates cities to:
• 1) Provide organic waste collection services to all residents and businesses • 2) Develop and adopt an enforceable mechanism or Ordinance by January 1, 2022 • 3) Establish an edible food recovery program
• 4) Update the City’s procurement policy to purchase recycled content paper and recycled organic waste products (ex: compost, mulch, renewable natural gas) at a volume of 0.08 tons/resident • 5) Provide outreach and education for generators, facilities, edible food recovery organizations and municipal departments
• 6) Plan and secure access for recycling and edible food recovery capacity • 7) Monitor compliance and conduct enforcement
• 8) Maintain accurate compliance records
•
The proposed Ordinance (incorporating SB1383 organics recycling requirements) amends in its entirety Title 10, Chapter 10.04 of the Twentynine Palms Municipal Code pertaining to solid waste regulations, and is recommended for approval.

ENVIRONMENTAL:

N/A
ALTERNATIVES:

None.

FISCAL IMPACT:

There is no fiscal impact to the City however, the largest impact will be felt by the businesses and residents with this state mandate.

CITY OF TWENTYNINE PALMS

CITY COUNCIL
ORDINANCE NO. 296

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS AMENDING IN ITS ENTIRETY TITLE 10,
CHAPTER 10.04 OF THE TWENTYNINE PALMS MUNICIPAL

CODE PERTAINING TO THE REGULATION OF SOLID WASTE

INCLUDING ORGANIC WASTE
WHEREAS, SB 1383 and the related regulations contained in 14 California Code of Regulations (CCR), Div. 7, Ch. 12 require all California cities to provide a program for the diversion of organic waste from landfills, and
WHEREAS, SB 1383 and the related regulations contained in 14 CCR, Div. 7, Ch. 12 further require all California cities to adopt an ordinance to enforce violations of its program for the diversion of organic waste from landfills; and
WHEREAS, Title 10, Chapter 10.04 of the City of Twentynine Palms Municipal Code addresses the City’s rules and regulations pertaining to solid waste, and needs to be updated to include the requirements of SB 1383 and 14 CCR, Div. 7, Ch. 12, and WHEREAS, City staff have analyzed and determined that the revisions to Title 10, Chapter

10.04 of the Municipal Code are not considered a “project” pursuant to CEQA.

NOW, THEREFORE, the City Council of the City of Twentynine Palms Ordains as follows:

SECTION 1. The foregoing Recitals are incorporated herein and made a part hereof.

SECTION 2. The City Council finds that this Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to State CEQA Guidelines Section 15060(c)(2) and 15061(b)(3) in that the proposed changes are not anticipated to result in a direct or reasonably foreseeable indirect physical change in the environment nor will they have the potential of creating a significant effect on the environment.

SECTION 3. Title 10, Chapter 10.04 of the Twentynine Palms Municipal Code is hereby amended to read in its entirety as set forth in the attached Exhibit A.

SECTION 4. City staff is hereby authorized and directed to file a Notice of Exemption with respect to the adoption of this Ordinance.

SECTION 5: If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held to be invalid by a final judgment of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance and each section, subdivision, sentence, clause, phrase, or portion of this Ordinance irrespective of the fact that one or more sections, subdivisions, sentences, clauses, phrases, or portions of this Ordinance be declared invalid.

SECTION 6: The City Clerk is authorized and directed to publish this Ordinance or a summary thereof in the manner provided by law and in accordance with procedures normally taken.

SECTION 7: The City Clerk shall certify to the passage of this Ordinance and cause the same to be published as required by law, and the Ordinance shall take effect thirty (30) days after adoption.

SECTION 8: Upon the effective date of this Ordinance, all former ordinances or parts thereof conflicting or inconsistent with the provisions of this Ordinance are hereby repealed and declared to be of no further force and effect.

PASSED, APPROVED and ADOPTED by the City Council of the City of Twentynine Palms at a regular meeting on this 11 day of January, 2022. _____________________________
Karmolette O'Gilvie, Mayor
ATTEST:
______________________________
Cindy Villescas CMC, City Clerk
APPROVED AS TO FORM:
______________________________
A. Patrick Muñoz, City Attorney
I hereby certify that the foregoing is a true copy of Ordinance No. 296, introduced on the 14 of December, 2021 and duly adopted by the City Council of the City of Twentynine Palms in a meeting held on 11 day of January, 2022, in Twentynine Palms, California by the following vote, to wit.

AYES: COUNCILMEMBER:

NOES: COUNCILMEMBER:

ABSENT: COUNCILMEMBER:

ABSTAIN: COUNCILMEMBER:
________________________________
Cindy Villescas CMC, City Clerk

EXHIBIT A
Chapter 10.04 – Solid Waste Disposal and Organic Waste Diversion

10.04.010 Definitions.

The words and phrases contained in this Chapter shall have the meaning commonly associated with them unless special meaning is ascribed to them by the California Public Resources Code or the California Code of Regulations (as either may be amended from time to time) in which case such meaning shall apply, except that the following words shall, for the purpose of this Chapter, be defined as follows:
(a) ”AB 939" means that State legislation commonly known as the California Integrated Waste Management Act (Stats 1989, Chapter 1095, as amended) as codified in Public Resources Code Section 49000, et seq.
(b) “Bins" means a metal container, commonly referred to as dumpsters, including compactors and any similar such devices, with a capacity of under ten (10) cubic yards. (c) “Cart" means a plastic container provided by a franchisee for collection, with a hinged lid and wheels serviced by an automated process, as opposed to a manual process of lifting and dumping.
(d) “City" means the City of Twentynine Palms.
(e) "City Manager" means the City Manager of the City or his duly-authorized representative or designee.
(f) "Collect" or "Collection" or "Collecting" means to take physical possession of, transport, and remove solid waste from a premises.
(g) "Commercial premises" means premises upon which business activity is conducted, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding residential premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property. Notwithstanding any provision to the contrary herein, for purposes of this chapter, premises upon which hotels and motels are operated shall be deemed to be commercial premises.

(h) "Container" means any and all types of solid waste receptacles, including carts, bins, and rolloff boxes.
(i) "Franchisee" means a person, persons, firm or corporation that has been issued a franchise by City to provide solid waste handling services within the City (j) "Hazardous waste" means all substances defined as hazardous waste, acutely hazardous waste, or extremely hazardous waste by the State of California in Health and Safety Code Sections 25110.02, 25115 and 25117, or in the future amendments to or recodifications of such statutes, or identified and listed as hazardous waste by the U.S.

Environmental Protection Agency (EPA) pursuant to the Federal Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. (j) "MCAGCC" means the Marine Corps Air Ground Combat Center located in and adjacent to City, and any lands it may annex or incorporate. (k) "Multi-family dwelling" means either (i) any building or lot containing five (5) or more dwelling units, or (ii) any building or lot containing two (2) or more dwelling units which franchisee determines (and the City Manager agrees) must receive solid waste handling services through the use of shared bins, since they are not reasonably able to receive individualized solid waste handling services through the use of carts or customer-provided containers. Any ambiguity as to whether a premises qualifies as a single-family dwelling or multi-family dwelling shall be resolved by the City Manager whose decision shall be final.
(l) “Organic waste” shall have the same meaning as set forth in 14 CCR, Div. 7, Ch. 12, Section 18982.
(m) "Premises" means any land, building and/or structure within the City limits where solid waste is generated or accumulated.
(n) "Person" means any individual, firm, corporation, association, group or other entity (o) "Recycle" or "Recycling" means the process of collecting, sorting, cleaning, treating and reconstituting materials that would otherwise become solid waste and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards used in the marketplace.
(p) "Recyclable material" means that solid waste capable of being recycled, including but not limited to glass, newsprint, newspaper, aluminum, cardboard, certain plastics or

metal.
(q) "Residential premises" shall mean all premises upon which dwelling units exist.

Notwithstanding any provision to the contrary herein, for purposes of this chapter, premises upon which hotels and motels are operated shall be deemed to be commercial premises.
(r) "Rolloff box" means containers of ten (10) cubic yards or larger, including compactors.
(s)"Self-hauler" means any person or entity that, pursuant to Section 10.04.070 of this Chapter, provides for the collection, transportation and disposal of solid waste generated by his/her/its own premises.
(t) "Single-family dwelling" means a building or lot containing one dwelling unit, and includes buildings and lots with more than one dwelling unit where such dwelling units are determined by the City to be reasonably able to receive individualized solid waste handling service by an automated process utilizing carts. Any ambiguity as to whether a premises qualifies as a single-family dwelling or multi-family dwelling shall be resolved by the City Manager.
(u) "Solid waste" means and includes all discarded putrescible and non-putrescible solid, semisolid and liquid wastes, including garbage, trash, refuse, rubbish, construction waste, industrial waste, commercial solid waste, and any other discarded solid, semisolid and liquid waste permitted to be disposed of at a Class III landfill and which are included within the definition of "nonhazardous solid waste" set forth in the California Code of Regulations, as it may be amended from time to time. Solid waste does not include hazardous waste (Class I), low-level radioactive waste, untreated medical waste, or special wastes as defined herein.
(v) "Special wastes" mean wastes other than solid waste, including sewage, sludge, industrial sludge, asbestos, auto bodies, tires, used motor oil, hazardous waste, animal body parts, explosive substances, radioactive materials, acids, solvents and other materials which may not be disposed of at a Class III landfill or which require special handling.
(w) "Yard waste" means all leaves, grass cuttings and shrubs that accompany routine household or property maintenance functions.

10.04.020 Authority to grant franchises; franchisee obligations to comply with State law.

(a) The City Council may by resolution or ordinance grant one or more franchises for solid waste handling services related to solid waste generated within the City. (b) Any solid waste enterprise granted a franchise for solid waste handling services shall operate in a manner that complies with all State laws and regulations. This obligation shall expressly, without limitation, require franchisees to provide all programs required by any State law or regulation to its customers, including, as applicable, programs that comply with recycling requirements and requirements related to the diversion of organic material from landfills; and, further shall require franchisees to operate such programs in a manner consistent with such law or regulation.

10.04.030 Mandatory requirement to subscribe to collection service or register for self-hauling.
(a) Arrangements for removal of solid waste mandatory. Except as otherwise provided in this Chapter, the owner, property manager, tenant and/or person in charge or control of each residential premises and each commercial premises in the City shall either (i) subscribe to solid waste handling services with a franchisee for said premises, or (ii) obtain and maintain registration as a self-hauler as set forth in this Chapter in connection with said premises.
(b) Exception: vacant premises. The above requirement to provide for solid waste handling services shall not apply in connection with any residential premises at which all dwelling units are vacant and not generating or accumulating solid waste for thirty (30) days or more, provided this exception shall only apply during the period of vacancy. In addition, the above requirement to subscribe for collection services shall not apply to or commercial premises that are vacant and not generating or accumulating solid waste for thirty (30) days or more, provided this exception shall only apply during the period of vacancy. Any person seeking to avail himself or herself of the exception provided herein shall bear the burden of providing reasonable evidence to City, pursuant to such regulations or guidelines as the City Manager is hereby authorized to develop, demonstrating the premises was vacant for the period in question.

10.04.040 Containers.
(a) Every owner, occupant or person in possession, charge or control of any premises within the City shall deposit or cause to be deposited all solid waste generated or accumulated on such premises, and intended for collection and disposal, in sealed, watertight bins, carts, rolloff boxes or other containers that are either (i) provided by a franchisee, or (ii) approved by the City Manager for self-hauling purposes pursuant to this Chapter. No owner, occupant or person in possession, charge or control of any premises shall utilize a bin, cart, rolloff box or other container not in conformance with the requirements hereof for the collection, accumulation or storage of solid waste.

(b) Containers provided by a franchisee shall comply with all applicable State laws and regulations.
(c) No bin, cart, rolloff box or other container shall be placed adjacent to or in a street or public right-of-way for collection service more than twenty-four (24) hours prior to the normal collection time, and all containers so placed shall be removed from the street or right-of-way within twelve (12) hours after collection (d)All newly constructed buildings and facilities at commercial premises and all newly constructed multifamily dwellings shall include trash container enclosures, which enclosures shall consist of a concrete floors and walls of masonry block, stucco, wood, metal, chain-link fencing modified with opaque slats, closable doors or other methods designed to screen such enclosure and prevent the scattering of debris by natural forces such as wind or animals.
(e) Container lids shall remain closed at all times that the container is unattended. If the solid waste contained within a bin, cart, rolloff box or other container exceeds the actual capacity of the container, then a larger container or multiple containers must be utilized. Any solid waste that does not reasonably fit within a container (such as furniture or other large bulky items) must be covered and protected, as by a tarp, netting or other secured material, in order to prevent the scattering of debris by natural forces such as wind or animals. The owner, tenant, occupant and/or person or entity in control of a premises shall be responsible for the cleanup of any solid waste spilled, dumped or scattered as a result of a container overflow.
(f) It is unlawful for any person to share, place solid waste in, or to otherwise use the bin, cart, rolloff box or other container of another person or business. Notwithstanding anything contained herein to the contrary, the sharing of containers shall be permitted under the following conditions:

1. The owner, property manager or person in charge or control of a premises upon which a multi-family dwelling exists may arrange for containers for shared use by the occupants, tenants or persons in possession of the dwelling units on such premises.

2. The occupants of a single commercial building or contiguous and adjacent commercial buildings may share a container for solid waste handling services at a common location, subject to approval of the City Manager, which approval may be delegated to a franchisee. Approval by the City Manager shall be based upon (i) the type of solid waste generated by each commercial premises; and (ii) the number of containers and frequency of solid waste collection needed to protect the public health, welfare and safety.
(g) It is unlawful to use any bin, cart, rolloff box or other container furnished by a franchisee for any purpose other than the collection, accumulation and storage of solid waste, or to convert or alter such containers for other uses, or to intentionally damage such containers.

(h) All containers used for the collection of solid waste at single-family dwellings shall be stored out of public view in a side or rear yard or an enclosed garage except on collection day. If the physical design of the dwelling does not allow for obscuring containers from public view because of the type of fencing or lack thereof, or lack of an appropriate enclosed area, containers shall be stored in an area adjacent to the dwelling at the point farthest from the closest street or roadway or in an enclosure adjacent to the dwelling.

10.04.050 Frequency of collection.
(a) Residential premises. With the exception of vacant premises meeting the provisions of Section 10.04.030(b) above, not less than once per week, every owner, occupant or person in possession, charge or control of any residential premises within the City shall remove by self-hauling (as provided herein), or cause to be removed by subscription to services provided by a franchisee, all solid waste stored, generated, collected or accumulated on such premises.
(b) Commercial Premises. With the exception of vacant premises meeting the provisions of Section 10.04.030(b) above, not less than once per week, every owner, occupant or person in possession, charge or control of any commercial premises within the City shall remove by self-hauling (as provided herein), or cause to be removed by subscription to services provided by a franchisee, all solid waste stored, generated, collected or accumulated on such premises; excepting, however, commercial premises upon which food preparation establishments exist shall remove or cause to be removed all solid waste generated, stored, collected or accumulated thereon not less than twice per week.
(c) Modifications to collection frequency. The City Manager may provide written notice to the owner of any premises that the above minimum removal requirements are not sufficient to avoid the creation of a public nuisance due to unique circumstances at such premises. City may direct that solid waste shall be removed by the owner of any premises so notified on a more frequent schedule (as determined by the City Manager) and/or that additional or larger containers shall be utilized (as determined by the City Manager); and, similarly, the City Manager may allow for less frequent collection of solid waste due to unique circumstances should he determine such action will not be detrimental to public health, safety and welfare.

10.04.060 Unlawful and prohibited acts; public nuisance.

(a) It is unlawful, and a public nuisance, for any person to occupy or inhabit any premises within the City for which arrangements have not been made and kept in full force and effect for solid waste handling services in a manner consistent with the provisions hereof.
(b) The keeping of solid waste in containers other than those prescribed by this Chapter, or the keeping upon premises of solid waste which is offensive, obnoxious or unsanitary, is unlawful, constitutes a public nuisance, and may be abated in the manner provided by law for the abatement of nuisances.
(c) It is unlawful, and a public nuisance, for any person or entity that subscribes for solid waste handling services with a franchisee to fail to participate in the recycling and organic waste programs offered to him, her or it by the franchisee. (d) It is unlawful, and a public nuisance, for any person or entity that subscribes for solid waste handling services with a franchisee to fail to comply with the terms of any recycling and organic waste programs offered to him, her or it by the franchisee, including by placing solid waste in containers of a type or nature not designed for the type of waste in question.
(e) It is unlawful, and a public nuisance, for any person who is registered as a self-hauler with City to fail to comply with all requirements of such registration, including those related to the handling of organic waste.
(f) It is unlawful, and a public nuisance, for any person or entity to fail to comply with his or its obligations related to the collection and handling of organic waste as set forth in 14 CCR, Div. 7, Ch. 12; provided, however, provided, however, the City Manager or his designee is authorized to provide waivers to the requirement to participate in some or all of such obligations where permitted by law.
(g) It is unlawful, and a public nuisance, for any Commercial Edible Food Generator, or any Food Recovery Organization or Service, to fail to meet its obligations as set forth in 14 CCR, Div. 7, Ch. 12.
(h) It is unlawful for any person other than a franchisee (or its agents and employees) to collect any discarded solid waste including recyclable material, or otherwise provide solid waste handling services within the City. This prohibition shall not, however, apply to:

1. Registered self-haulers as defined in this Chapter;

2. The owner, tenant or occupant of residential or commercial premises who has subscribed for and is receiving solid waste handling services with a franchisee, when such owner, tenant or occupant is hauling materials generated at his or her own

premises to a lawful disposal or recycling facility. This exemption does not permit the hiring of any person or entity, other than a franchisee, to haul solid waste from one’s own premises;

3. The collection, transportation and disposal of construction and demolition debris by a contractor, handyman, repairman or other similar service provider as an incidental part of the services provided to its customers rather than as a hauling service, provided that such solid waste is not collected or transported by a third party hired for the primary purpose of collecting and transporting said materials, and further provided that such services comply with any ordinances, policies and regulations of City and all State laws and regulations relating to the collection and handling of such materials;

4. The collection, transportation and disposal of yard waste, green waste and related solid waste by a gardener or landscaper as an incidental part of the gardening or landscaping services provided to its customers, rather than as a hauling service, provided that such solid waste is not collected or transported by a third party hired for the primary purpose of collecting and transporting said materials, and further provided that such services comply with any ordinances, policies and regulations of City and all State laws and regulations relating to the collection and handling of such materials

5. Any person or entity collecting recyclable material sold or donated to it by the person or entity that generated such recyclable material (the “generator”) provided, however, to the extent permitted by law, if the generator is required to pay monetary or non-monetary consideration for the collection, transportation, transfer or processing of recyclable material, the fact that the generator receives a reduction or discount in price therefor (or in other terms of the consideration the generator is required to pay) shall not be considered a sale or donation.
(i) It is unlawful for any person, other than the owner, occupant or person in possession, charge or control of any residential or commercial premises, or a person authorized by law (such as a franchisee), to remove any bin, cart, rolloff box or other container from any such premises or from any location where it was lawfully placed for collection, without the prior written approval of the owner, occupant or person in possession, charge or control of such premises.
(j) It is unlawful for any person to place solid waste adjacent to a street or public right-of-way for collection by a franchisee without having first subscribed for solid waste handling services with such franchisee.
(k) It is unlawful for any person, other than a franchisee, to take, remove or appropriate for his or her own use any solid waste, including recyclable materials, which has been placed in any street or alley for collection or removal by a franchisee, regardless of whether the solid waste is placed in a bin, cart, rolloff box or other container.

10.04.070. Use of containers for solid waste generated during construction and demolition.

Any person who generates solid waste in connection with the construction of a new building, a building addition, remodel, or the demolition of any structure for which a building permit is required, shall either make arrangements for solid waste handling service with the use of containers from a franchisee, be registered to self-haul such solid waste in the manner set forth herein, or make arrangements pursuant to Section

10.04.060(h)(3). In addition to constituting a violation of this Chapter, failure to produce evidence of compliance with this Section upon the request of a City building inspector, code enforcement officer or other City officer shall result in the red-tagging of the project by the City and a requirement that all work cease until compliance with this Section.

10.04.080 Self-haulers.
(a) Self-haulers who obtain a permit from City, and are operating in accordance with this Chapter are only permitted to collect, transport and dispose of solid waste generated by and upon the self-haulers own premises. Notwithstanding any other provision of this Chapter, self-haulers shall not share, place solid waste in, or to otherwise use the bin, cart, rolloff box, or other container of another person or business.
(b) Registration. All self-haulers must apply for and receive a permit to operate as a self-hauler from the City and shall comply with the following:

1. Each self-hauler shall obtain a permit from the City Manager, and such permit shall be renewed on an annual basis.

2. Each permit application, whether upon initial application or renewal, shall include the following: (i) a list of all bins, carts, rolloff boxes and other containers to be used by the self-hauler, (ii) a list of all transport and disposal equipment to be used by the self-hauler, (iii) a written explanation of where all solid waste will be delivered for disposal and diversion; (iv) a written plan explaining to the reasonable satisfaction of the City Manager how not less than fifty percent of solid waste collected will be diverted from disposal in compliance with AB 939;(v) a written plan explaining to the reasonable satisfaction of the City Manager how compliance with the requirement to divert organic waste, in accordance with applicable laws including 14 CCR, Div. 7, Chapter 12, Section 18988.3 will be achieved, and (vi) any other information deemed necessary by the City Manager to ensure protection of public health, safety and sanitary needs including such information as may be deemed necessary or reasonable to ensure compliance with all laws and regulations related to solid waste collection, handling, diversion and disposal.

3. Permit renewal applications shall additionally include (i) receipts from self-hauling activities undertaken in the prior year demonstrating that the applicant has effectively diverted at least fifty percent of all solid waste generated at its premises from landfills in a manner that complies with the requirements of AB 939; (ii) records reasonably satisfactory to the City manager demonstrating the manner in which organic waste was diverted from landfills in accordance with applicable laws including 14 CCR, Div. 7, Chapter 12, Section 18988.3 and (iii) receipts from self-hauling activities undertaken in the prior year demonstrating that the applicant has delivered solid waste generated at its premises to appropriate disposal or recycling facilities at least as frequently as collection is required for such self-hauler by the City Manager.

4. The City Manager shall approve the application, and issue a self-hauler permit, if the application meets the requirements of this section, and if the equipment, containers, diversion plan and disposal plan meet with his reasonable satisfaction, and if evidence of past diversion and disposal requirements demonstrate the applicant has complied with the fifty-percent diversion requirement and otherwise complied with all laws related to disposal, recycling and diversion of solid waste, including without limitation the diversion of organic waste.
(c) Containers. Each self-hauler shall provide its own bins, carts, rolloff boxes or other containers. Bins, carts, rolloff boxes or other containers utilized by a self-hauler must conform to industry standards for solid waste disposal, comply with all laws and regulations, and must be approved by the City Manager in writing prior to issuance of a self-hauler permit. In addition, any containers utilized by a self-hauler shall comply with the following requirements:

1. All containers shall be maintained in good repair, and any question as to the meaning of this standard shall be resolved by the City Manager;

2. All containers shall be maintained in a sealed, watertight condition;

3. Self-haulers shall remove any graffiti that appears on containers within twenty-four hours after becoming aware of it.
(d) Collection and transport equipment. Collection and transport equipment, including but not limited to transport trucks and vehicles, utilized by a self-hauler must be approved by the City Manager in writing prior to issuance of a self-hauler permit. (e) Non-commercial venture. It is the intent of this Chapter to prevent and proscribe self-hauling activities undertaken as a commercial enterprise. Self-haulers must obtain all equipment, including containers and collection and transportation equipment, at a fair market value that does not include any hauling services, "free" or otherwise. A self-hauler may utilize its own employees to undertake self-hauling activities, but under no circumstance may a self- hauler utilize an independent contractor or any other person or entity for solid waste handling services other than a franchisee.

(f) Other recycling obligations. Self-haulers shall recycle, or divert from disposal, all recyclable materials not otherwise addressed by this Section to a degree and in a manner consistent with standards generally applicable to the solid waste industry and as required by State law or regulation.
(g) Collection frequency. Self-haulers shall remove solid waste from their premises at least once per week. However, upon application to the City Manager to obtain (or renew) a self-hauler permit, the City Manager may determine a different frequency for solid waste collection, transport and disposal from the self-hauler's premises. This determination shall be based upon the nature of the premises, the type of solid waste generated by the premises, and the collection capacity of the self-hauler as demonstrated by information in the application.
(h) Hazardous and special wastes. Unless lawfully and currently licensed under all applicable State, federal and local laws, no self-hauler shall engage in the collection, transport or disposal of hazardous waste or special wastes. (i) Revocation. The City Manager may revoke a self-hauler permit if the permittee (i) fails to divert at least fifty percent of all solid waste generated at its premises from landfills in a manner that complies with the requirements of AB 939; (ii) fails to divert organic waste from disposal in accordance with applicable laws including 14 CCR, Div. 7, Chapter 12, Section 18988.3, (iii) fails to deliver solid waste generated at its premises to appropriate disposal or recycling facilities at least as frequently as collection is required for such self-hauler by the City Manager, or (iv) fails to comply with the provisions of this Chapter or its permit. The City Manager shall notify any permittee in writing of the decision to revoke its permit, and the basis therefore, and the permittee may appeal any such decision within 15 days of the date of such notice being issued by requesting an administrative hearing in the same manner applicable to administrative citations set forth in this Code.

10.04.090 Removal of unauthorized containers.

In addition to any other penalties and/or remedies as set forth in this chapter or provided for by law, any container placed within the City for the collection of solid waste in violation of Section 10.040.60(h) (hereinafter "Unauthorized Container(s)") may be impounded as set forth herein.
(a) The City Manager may cause a notice to be placed in a conspicuous place on any unauthorized container directing that it be removed. The notice shall specify the nature of the violation and shall state that the bin, drop-off box, trailer or waste receptacle must be removed within twenty-four hours or it may be removed and stored by the City, and the contents disposed of, at the expense of the owner thereof. The notice shall indicate the time that it was posted and shall include the name and phone number of a person designated by the City to hear any appeal or challenge to the requirement that

the container be removed, and, further, shall indicate that any appeal of the order for removal must occur within twenty-four hours of the posting of the notice. The posting of a notice to remove shall constitute constructive notice to the owner and user of the requirement to remove the unauthorized container, and a copy of the notice shall be provided to owner of the unauthorized container once said owner’s identity is ascertained by City, and if not provided sooner, a copy of the notice shall be provided at such time as the owner of the unauthorized container seeks to retrieve any such container removed hereunder.
(b) If within twenty-four hours after a notice to remove is posted on an unauthorized container a request for an appeal has not been received and the bin, drop-off box, trailer or waste receptacle is not removed, the City Manager may direct the removal and storage of the unauthorized container. In addition, if the contents of the container are either comprised of a substantial amount of putrescible solid waste, or determined by the City Manager to create a threat to health and safety if not disposed of immediately, the City Manager may direct that the contents of the container be disposed of. The owner of the unauthorized container shall be responsible to reimburse the City for the actual cost of removal, storage and disposal. All amounts due to the City for the cost of removal, storage and disposal must be paid before the unauthorized container may be returned to the owner. Such amounts shall constitute a debt owed by the owner to the City, and the owner shall be liable to the City in an action brought by the City for the recovery of such amounts.
(c) Between the date following the date upon which any unauthorized container is removed by the City, and the date which is five business days following its retrieval from City, the owner of the unauthorized container may request a hearing to appeal the City’s determination that the container is an unauthorized container subject to removal by City as set forth herein. The City Manager shall establish a procedure for such a hearing and the method for requesting such a hearing shall be included on the notice to remove. If the appeal is granted, any payments due to City shall be forgiven and any amounts paid reimbursed.
(d) If the identity of the owner of an unauthorized container that has been removed by the City is known to the City Manager, the City Manager shall promptly cause a copy of the notice to be mailed to the owner along with a request that the owner claim the stored property. If the unauthorized container is not claimed within ninety-five days after mailing of the notice to the owner, or ninety days after removal if the identity of the owner is unknown to the City Manager, the unauthorized container and its contents shall be deemed abandoned property and may be disposed of accordingly. The notice to be posted on unauthorized containers shall specify that the foregoing procedure related to abandonment will apply.

10.040.100 Violations; penalties.

(a) This chapter may be enforced in any manner set forth in this code, or as otherwise provided by law.
(b) Any person who violates any provision of this chapter shall be guilty of a separate offense for each and every day, or any portion thereof, of which any violation of any provision of this chapter is committed, continued, or permitted by such person, and shall be punishable as misdemeanor or an infraction, at the discretion of the City Manager and/or City Attorney, and except as otherwise set forth below, the following penalties shall apply:

1. Penalty for misdemeanor violation. Any person convicted of a misdemeanor under any provision of this chapter shall be punishable by a fine of not more than one thousand dollars, or by imprisonment in the City or County Jail for a period not exceeding six months, or by both such fine and imprisonment.

2. Penalty for infraction violation. Any person convicted of an infraction under any provision of this chapter shall be punished by:
(A) A fine not exceeding one hundred dollars for a first violation; (B) A fine not exceeding two hundred dollars for a second violation of the same provision within one year; and
(C) A fine not exceeding five hundred dollars for a third violation and for any additional violation of the same provision within one year. (c) Violations related to State mandated Organic waste obligations. In addition to any other available remedy, any violation of 14 CCR, Div. 7, Ch. 12, or any of the provisions hereof which address such obligations, shall be subject to the provisions of the City’s municipal code related to administrative citations, modified as follows:

1. Upon determining a violation has occurred, The City Manager or his designee shall issue a notice of violation pursuant to 14 CCR, Div. 7, Ch. 12, Section 18995.4, requiring compliance within 60 days of such notice.

2. Absent compliance, the following administrative fines shall apply:
(A) for a first violation - $50
(B) for a second violation - $100
(C) for a third or subsequent violation - $250
(d) Violations deemed to be a public nuisance. In addition to any penalties otherwise imposed, any violation of the provisions of this chapter is deemed to be a public nuisance which may be abated in the manner provided by law for the abatement of nuisances.

(e)Attorney fees. In addition to any civil and criminal penalties as provided by the provisions of this chapter or otherwise, the City may recover reasonable attorneys' fees and court costs, and other such expenses of litigation and/or prosecution as it may incur by appropriate lawsuit against the person found to have violated any provisions of this chapter.

10.04.110 General Clean-Up Requirements.
(a) Clean-Up Prior to Collection. Prior to collection and removal of solid wastes from a premises, the owner, tenant, occupant, person or entity in control of the premise, whether commercial or residential, shall be solely responsible for the clean-up of all solid waste generated upon the premises that becomes dumped, spilled or otherwise scattered as a result of any event, including, but not limited to, human or animal, wind, or other natural interferences with bins, carts, rolloff boxes or other containers placed for collection.
(b) Clean-Up During/After Collection. A contractor shall be solely responsible for any solid waste spilled, dumped or otherwise scattered during or after collection of solid wastes from a premises. Self-haulers shall be solely responsible for the clean-up of any solid waste spillages during the course of collection, transportation and disposal of such waste.

10.04.120 MCAGCC: Exemption.

Notwithstanding the foregoing sections of this Chapter, and pursuant to the pre-annexation agreement which was a condition of the Local Agency Formation Commission’s approval of the City’s annexation, the City's rules and regulations regarding solid waste collection do not apply to the area of the Federal military installation currently known as the United States Marine Corps Air Ground Combat Center (hereinafter referred to as "MCAGCC") that is located within the City's territorial boundaries, further:
(1) MCAGCC and its authorized officials, shall be entitled to use MCAGCC personnel and equipment or the services of any solid waste enterprise to provide solid waste handling services to the area of MCAGCC that is located within the City's territorial boundaries.
(2) The area of MCAGCC that is located within the City's territorial boundaries shall not be subject to the City's jurisdiction in connection with any franchise solid waste handling agreement between the City and any third party. (3) Any franchise solid waste handling agreement between the City and any third party shall not apply to the area of MCAGCC that is located within the City's territorial boundaries unless MCAGCC's authorized officials specifically agree and consent to the application of such agreement.

Totals for FY 21/22
Incidents
3 12
15 149
5 5
1 190
Incident Type
Structure Fire
Other Fire
Investigation/Alarm
Medical
Public Service
Traffic Collision
Traffic Collision with Extrication
Totals
San Bernardino County Fire Area Incident Report
Criteria: 12/01/2021 to 12/31/2021
Division(s): South Desert
Battalion(s): 6, 7
City(ies): Twentynine Palms
Printed on 1/3/2022 1:35 PM Page 1 of 1 Page 57 of 232

STAFF REPORT
TO: City Council
FROM: City Manager
FOR MEETING: Jan 25 2022
SUBJECT: Purchase, Sale, and Development Agreement for Project Phoenix Property.

RECOMMENDATION:

The City Council approve the Purchase, Sale, and Development Agreement with Greens Development Inc. for the sale of a property within the boundaries of Project Phoenix for $438,927 and the subsequent development of a 95-unit hotel.

ORDER OF PROCEDURE:

Request Staff Report (City Manager Presenting)
Council Questions of Staff
Request Public Comment
Council Discussion
Motion/Second
Discussion of Motion
Call the Question
ATTACHMENTS:
• Purchase, Sale, and
Development Agreement
(PSDA)
• Site Plan
• Concept Perspective
BACKGROUND:

As the City Council is aware, over the past ten years, the City has been engaged in master planning activities for the Project Phoenix area, including the preparation of Tentative Parcel Map No. 20082 ("TPM") to establish the necessary separate legal parcels for the City's Community Center and the Joshua Tree National Park's Cultural/Visitors' Center, including the paseo, public parking areas, and other related uses. One of the parcels, identified as "Parcel 2" on the TPM (the Property"), was originally contemplated for development of a senior rental affordable housing development. Following the City's Issuance of a Request for Proposals, in 2017, the City selected Palm Communities ("Palm") to develop this site with the senior rental affordable housing development. After two years of planning efforts, Palm was not able to obtain the requisite financing for the project, and the City and Palm mutually agreed to terminate negotiations.

In 2019, the City determined that another site within the City would be better suited for an affordable housing development and released a Request for Information (RFI) on the development of the Property for purposes of pursuing the highest and best use of the Property. The City was ready to make an award in 2020, however the onslaught of the COVID pandemic disrupted the development. In 2021 the City released another RFI. Greens Development, Inc. ("Greens") submitted,a proposal for an upper-midscale hotel, and following an interview in which the City interview panel included Mayor Pro Tem Wright, the City selected Greens. The City has been in active

negotiations with Greens and is now ready to present to the City Council for approval, a proposed Purchase, Sale, and Development Agreement (the "PSDA").

Following is a description of the proposed hotel project (the "Project") required by the PSDA:

The Project consists of the development on the Property of a 3-story, 75,000 square foot upper midscale Hilton, or Marriot hotel facility, including 95 guest rooms and hotel amenities, including, without limitation, a pool, treat shop, business center, guest laundry facilities, on-site parking, drought tolerant, desert friendly landscaping, and an outdoor seating area for guests to experience the Project Phoenix Paseo's outdoor festivities. The lobby of the hotel will flow freely between the parking and the Paseo patio, to create a pedestrian friendly atmosphere that would invite the hotel guests to view the Project Phoenix stage. The architectural style, including materials and colors, of the hotel are complimentary to the Cultural and Community Center. The Project also includes a fountain entry feature, and development of public street improvements (including trees) along Tamarisk Avenue to the end of the property line of the Property.

The PSDA includes recordation of an Option Agreement that would enable the City to reacquire the Property from Greens if Greens fails to commence, diligently proceed with or complete the Project by the dates set forth in the PSDA. The sale price for the Property pursuant to the PSDA is $438,927, which equals the cumulative costs the City has incurred to acquire the Property and equals or exceeds the fair market value of the Property.

Development of housing of all types within the City is a high priority of the City. In this regard, City Staff is exploring various housing options, including smaller housing units that could function as a form of "workforce" housing, and that would complement the uses downtown. The new Downtown Specific Plan currently underway is analyzing the potential for affordable and market rate housing. In addition, the City has entered into an Exclusive Negotiating Agreement with Milestone Housing Group, LLC, to develop an affordable rental housing development on a three-acre parcel adjacent to City Hall. This area is twice the size of the Property. All of the sales proceeds for the sale of the Property will be deposited into the City's Low- and Moderate-Income Housing Asset Fund and will be expended on development of affordable housing within the City.

ENVIRONMENTAL:

Project Phoenix was analyzed in a Mitigated Negative Declaration and approved by the City in 2019. The proposed PSDA is for a portion of Project Phoenix. In 2020, the City considered proposals for hotels in comparison to the original analysis and determined that in order to confirm that no substantial change in circumstances had occurred, a traffic impact analysis (TIA) should be prepared. That TIA found no significant impacts to the downtown area’s traffic as a result of a hotel use on the Property. Therefore, the PSDA and its resulting hotel development are consistent with the previously approved Mitigated Negative Declaration, and none of the conditions described in CEQA Guidelines 15162 apply: no significant changes to the Project Phoenix project are proposed that would result in significant new impacts; no changes in circumstances have occurred, insofar as there has been no substantial increase in development activity, and traffic impacts will be no greater than previously analyzed; and there is no new information which would result in substantial new impacts. Therefore, the previous analysis is sufficient, and no further CEQA review is required.

ALTERNATIVES:

The City Council could choose not to approve the PSDA or recommend modifications.

FISCAL IMPACT:

The proceeds from the sale of the Property will be deposited into the City's Low- and Moderate-Income Housing Fund for expenditure on development of affordable housing within the City.

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PURCHASE, SALE, AND DEVELOPMENT AGREEMENT
by and between

CITY OF TWENTYNINE PALMS
a California municipal corporation,
and
GREENS DEVELOPMENT, INC.,
a California corporation

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PURCHASE, SALE, AND DEVELOPMENT AGREEMENT
THIS PURCHASE, SALE, AND DEVELOPMENT AGREEMENT (this
“Agreement”) is dated as of _________, 2022 (the “Effective Date”), and is entered into by and between GREENS DEVELOPMENT, INC., a California corporation (“Developer”), and the CITY OF TWENTYNINE PALMS, a California municipal corporation (the “City”).

City and Developer enter into this Agreement with reference to the following recited facts (each a “Recital”):

RECITALS
A. City owns fee title to certain real property comprising approximately seventy-eight thousand seven hundred twenty-three and sixty-six hundredths (78,723.66) square feet, located to the south of Twentynine Palms Highway, between Tamarisk Avenue and Yucca Avenue, in the City of Twentynine Palms, County of San Bernardino, State of California (the “Property”). The Property is comprised of portions of APN Nos. 0617-112-03 through 0617-112-07, and 0617-112-18 through 0617-112-22. The Property is depicted on Attachment No. 1, which is incorporated herein by this reference, and is designated thereon as “PARCEL 2.”
B. City and Developer now desire by this Agreement to set forth the terms for City’s sale of the Property to Developer.

C. City’s sale of the Property to Developer, and Developer’s subsequent construction and completion of the “Project” (as that term is defined in Article II below), pursuant to the terms of this Agreement, are in the vital and best interest of the City of Twentynine Palms and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements.

NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE

PROMISES AND COVENANTS OF THE PARTIES SET FORTH IN THIS AGREEMENT, CITY AND DEVELOPER AGREE, AS FOLLOWS:

ARTICLE I

RECITALS AND IDENTITIES OF PARTIES
Section 1.1 Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are incorporated into this Agreement in their entirety by this reference.

Section 1.2 Parties to the Agreement. The Parties to this Agreement are City and Developer.

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Section 1.3 Restrictions on Change in Management or Control of Developer and Assignment or Transfer.
(a) Developer acknowledges that the qualifications and identity of Developer are of particular importance to City. Developer further recognizes and acknowledges that City has relied and is relying on the specific qualifications and identity of Developer in entering into this Agreement with Developer and, as a consequence, prior to the Project Completion Date, Transfers are permitted only as expressly provided in this Agreement.
(b) Prior to the Project Completion Date, Developer shall promptly notify City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in control of Developer of which information Developer or any of its partners, members or officers are notified or may otherwise have knowledge or information. Prior to the Project Completion Date, if there is any Transfer, whether voluntary or involuntary, in membership, ownership, management or control of Developer (other than such changes occasioned by the death or incapacity of any individual) other than a Permitted Transfer or a Transfer that has been approved in writing by City prior to the time of such Transfer, then prior to the Project Completion Date City may exercise any remedy available to City set forth under the terms of this Agreement or otherwise available under applicable law.
(c) Except for Permitted Transfers or as otherwise set forth in this Section 1.3, and notwithstanding any provision to the contrary in this Agreement, prior to the Project Completion Date, Developer shall not sell, assign, convey, create any trust estate with respect to or otherwise Transfer any of its interests in this Agreement, the Property, and/or the Project, without the prior written approval of the City Manager, which approval may be withheld in his or her sole and absolute discretion; this restriction shall not apply on and after the Project Completion Date. Developer recognizes that the qualifications and identity of Developer are of particular concern to City and that a sale, assignment, conveyance with respect to or other Transfer of any of Developer’s interests in this Agreement, the Property, and/or the Project is for all practical purposes a transfer or disposition of the responsibilities of Developer with respect to this Agreement, the Property, and/or the Project and, therefore, are only allowed in accordance with the provisions of this Section 1.3. Except for Permitted Transfers or as otherwise set forth in this Section 1.3, Developer represents and agrees that it has not made and will not create or suffer to be made or created, any Transfer, either voluntarily, involuntarily or by operation of law, without the prior written approval of City, until after the Project Completion Date. Any Transfer made in contravention of this Section 1.3 shall be voidable at the election of City and, if voided, shall be deemed to be an Event of Default by Developer, whether or not Developer knew of or participated in such Transfer. (d) Subject to the terms of paragraph (c) above in this Section 1.3, Developer is not required to give City advance notice of, nor shall City have the right to approve, a Permitted Transfer. Additionally, City may, in its sole and absolute discretion, approve in writing any other Transfer (meaning, a Transfer that is not a Permitted Transfer) of all or any portion of the Property requested by Developer, provided the

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proposed transferee can satisfactorily demonstrate successful experience in the development of a project of the same type as the Project, acquires fee title to the Property or relevant portion thereof, and expressly assumes in writing all of the obligations of the Developer under this Agreement relating to the portion of the Property transferred. All instruments and other legal documents proposed to effect any Transfer shall be submitted to City for review, prior to the Transfer, and the written approval or disapproval of City shall be provided to Developer, within fifteen (15) calendar days of City’s receipt of Developer’s request.
(e) The provisions of this Section 1.3 shall terminate and be of no further force and effect upon issuance and recordation of a Release of Construction Covenants for the Project.
(f) Upon an approved or Permitted Transfer of the Property by Developer prior to the Project Completion Date or any Transfer thereafter, Developer shall be deemed released from any obligations under this Agreement with respect to the portion of the Property transferred except for any indemnification obligations with respect to Claims based on actions and/or inactions occurring prior to such Permitted Transfer.

ARTICLE II

DEFINITIONS
Section 2.1 Defined Terms. In addition to the usage of certain words, terms or phrases that are defined in the initial paragraph or Recitals of this Agreement, the following words, terms and phrases are used in this Agreement, including in ARTICLE I above, unless the particular context of usage of a word, term or phrase requires another interpretation:
(a) “Affiliate” means and refers to any Person, directly or indirectly, Controlling or Controlled by or under common Control with Developer, whether by direct or indirect ownership of equity interests, by contract or otherwise. (b) “CEQA” means and refers to the California Environmental Quality Act, Public Resources Code Section 21000, et seq.
(c) “CEQA Claims” means and refers to any appeals or protests (including litigation) taken or filed with respect to City’s findings, determinations, and/or certifications pursuant to CEQA in connection with City’s approval of this Agreement and in connection with City’s approval, conditional approval, or denial, of the Entitlements. (d) “City” means and refers to the City of Twentynine Palms, California. (e) “City and City Personnel” means and refers, collectively, to City, its elected and appointed officials, commissions, employees, agents, representatives, and attorneys.
(f) “City Grant Deed” means and refers to a grant deed substantially in the form of Attachment No. 5 to this Agreement, conveying all of City’s interest in the

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Property to Developer. Following recordation of the Parcel Map and prior to the Close of Escrow, the legal description for the Property will be inserted into the City Grant Deed. (g) “City Manager” means and refers to the person duly appointed to the position of City Manager of the City or his or her designee or successor in function. (h) “City Parties” means and refers to the City of Twentynine Palms, its elected and appointed officials, its employees, agents and attorneys. (i) “City’s Title Notice Response” means and refers to the written response of City to Developer’s Title Notice, in which City elects to (i) cause the removal from the Preliminary Report of some or all of the disapproved exceptions, or (ii) not to cause the removal from the Preliminary Title Report of any disapproved exceptions. (j) “Claims” means any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort or contract, at law or in equity, or otherwise), charges, awards, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorney’s fees of counsel retained by the City Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature), and judgments, including, but not limited to, Claims for: (1) injury to any person (including death at any time resulting from that injury); (2) loss of, injury or damage to, or destruction of, property (including all loss of use resulting from that loss, injury, damage, or destruction) regardless of where located, including the property of the City Parties; (3) any workers’ compensation or prevailing wage determination; and (4) all economic losses and consequential or resulting damage of any kind.
(k) “Close of Escrow” means and refers to the recording of the City Grant Deed in the Official Records of the Recorder of the County of San Bernardino, California, and completion of each of the actions set forth in ARTICLE IV by the Escrow Holder for City to sell the Property to Developer and Developer to purchase the Property from City.
(l) “Control” means and refers to possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether by ownership of equity interests, by contract or otherwise. (m) “Controlling” and “Controlled” mean and refer to exercising or having Control.
(n) “Developer’s Second Title Notice” means and refers to a written notice from Developer to City indicating Developer’s continued disapproval of specific matters shown in Schedule B of the Preliminary Title Report or Supplemental Report, as exceptions to coverage under the proposed Developer’s Title Policy for the Property, describing in suitable detail the actions that Developer reasonably believes are necessary to obtain Developer’s approval of the state of the title to the Property.

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(o) “Developer’s Title Notice” means and refers to a written notice from Developer to City indicating Developer’s acceptance of the state of the title to the Property, as described in the Preliminary Report or Supplemental Report, or Developer’s disapproval of specific matters shown in Schedule B of the Preliminary Report or Supplemental Report, as exceptions to coverage under the proposed Developer’s Title Policy for the Property, describing in suitable detail the actions that Developer reasonably believes are necessary to obtain Developer’s approval of the state of the title to the Property.
(p) “Developer’s Title Notice Waiver” means and refers to a written notice from Developer to City waiving Developer’s previous disapproval in the Developer’s Title Notice of specific matters shown in Schedule B of the Preliminary Report or in the Supplemental Report as exceptions to coverage under the proposed Developer’s Title Policy for the Property.
(q) “Developer’s Title Policy” means and refers to a standard ALTA owners’ policy of title insurance issued by the Title Company, with coverage in the full amount of the Purchase Price and insuring fee title to the Property vested in the Developer; provided, however, that Developer shall have the right, at Developer’s sole cost, to elect to obtain title endorsements and/or an extended coverage ALTA owner’s policy, as further set forth in Section 4.8 below.
(r) “Due Diligence Investigations” means and refers to Developer’s due diligence investigations of the Property to determine the condition of the Property and the suitability of the Property for development of the Project, and such other matters as Developer may deem relevant.
(s) “Due Diligence Investigation Conclusion Notice” means and refers to a written notice of Developer delivered to both City and the Escrow Holder, prior to the end of the Due Diligence Period, indicating Developer’s acceptance of the Property or indicating Developer’s rejection of the Property and refusal to accept a conveyance of fee title to the Property, describing in reasonable detail the actions or circumstances that Developer reasonably believes are necessary to allow Developer to accept the Property; provided, however, that Developer may, in its sole and absolute discretion, determine not to accept the Property without identifying any such actions or circumstances. (t) “Due Diligence Period” means and refers to the time period of seventy-five (75) continuous days commencing on the day immediately following the Escrow Opening Date.
(u) “Earnest Money Deposit” means and refers to the non-refundable amount of Forty-Three Thousand Eight Hundred Ninety-Three Dollars ($43,893.00), in cash or other immediately available funds.
(v) “Entitlement Approval Date” means the date that all of the Entitlements have been approved by each required Governmental Agency and all appeal and protest periods have expired with no appeals or protests (including litigation) taken

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or filed (“Entitlement Claims”), or, if any are so taken or filed, then upon the resolution of the Entitlement Claims upon terms acceptable to each of City and Developer, in their respective sole and absolute discretion.
(w) “Entitlements” means and refers to all of the discretionary entitlements, permits and approvals required for the development of the Project, including, without limitation, a Design Review Application and Conditional Use Permits. (x) “Environmental Claims” means and refers to any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever directly or indirectly relating to or arising from any Environmental Matters existing or occurring during or arising from Developer’s Due Diligence Investigations, Developer’s ownership or occupancy of the Property or Developer’s construction of the Project.
(y) “Environmental Laws” means and refers to all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any governmental authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, or pertaining to occupational health or industrial hygiene (to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to any Hazardous Substance on, under, or about the Property), occupational or environmental conditions on, under, or about the Property, as now or may, at any later time, be in effect, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) [42 U.S.C. Section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (“RCRA”) [42 U.S.C. Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (“FWPCA”) [33 U.S.C. Section 1251 et seq.]; the Toxic Substances Control Act (“TSCA”) [15 U.S.C. Section 2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49 U.S.C. Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 U.S.C. Section 6901 et seq.] the Clean Air Act [42 U.S.C. Section 7401 et seq.]; the Safe Drinking Water Act [42 U.S.C. Section 300f et seq.]; the Solid Waste Disposal Act [42 U.S.C. Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 U.S.C. Section 101 et seq.]; the Emergency Planning and Community Right to Know Act [42 U.S.C. Section 11001 et seq.]; the Occupational Safety and Health Act [29 U.S.C. Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [Health and Safety Code Section 25280 et seq.]; the California Hazardous Substances Account Act [Health and Safety Code Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [Health and Safety Code Section 24249.5 et seq.] the Porter-Cologne Water Quality Act [Water Code Section 13000 et seq.] together with any amendments of, or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation, now in effect or later enacted, that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relating to any Hazardous

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Substance on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.
(z) “Environmental Matters” means and refers to any of the following:
(1) The presence of any Hazardous Substances on, in, under, from or affecting all or any portion of the Property or the Project; (2) The storage, holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Substances on, in, under, from or affecting the Property or the Project; (3) The violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by Developer, its agents or contractors, relating to or governing in any way Hazardous Substances on, in, under, from or affecting the Property or the Project; (4) The failure of Developer, its agents or contractors, to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like in connection with Developer’s activities on the Property or regarding the Project;
(5) The implementation and enforcement by Developer, its agents or contractors of any monitoring, notification or other precautionary measures that may, at any time, become necessary to protect against the release, potential release or discharge of any Hazardous Substances on, in, under, from or affecting the Property or the Project;
(6) The failure of Developer, its agents or contractors, in compliance with all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of any Hazardous Substances existing, stored or generated on, in, under or from the Property or the Project;
(7) Any investigation, inquiry, order, hearing, action or other proceeding by or before any Governmental Agency in connection with any Hazardous Substances on, in, under, from or affecting the Property or the Project or the violation of any Environmental Law relating to the Property or the Project (aa) “Escrow” means and refers to an escrow, as defined in Civil Code Section 1057, that is conducted by the Escrow Holder with respect to the Property pursuant to this Agreement.
(bb) “Escrow Holder” means and refers to Fidelity National Title, means and refers to Fidelity National Title, at 56172 29 Palms Highway, Unit C, Yucca Valley, CA 92284.

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(cc) “Escrow Opening Date” means and refers to the first date on which a fully executed copy of this Agreement, the Earnest Money Deposit is deposited with the Escrow Holder.
(dd) “Event of Default” shall have the meaning ascribed to the term in Section 9.2.
(ee) “FIRPTA Affidavit” means and refers to an affidavit complying with Section 1445 of the United States Internal Revenue Code (“IRC 1445”) evidencing that neither Developer nor Escrow Holder is required to withhold City’s closing funds pursuant to IRC 1445.
(ff) “Form 593” means and refers to a California Franchise Tax Board Form 593-W evidencing that neither Developer nor Escrow Holder is required to withhold City’s closing funds pursuant to California Revenue and Taxation Code Section 18662e). (gg) “Governmental Agency” means and refers to any and all courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, or otherwise), including the City, pursuant to its general police power jurisdiction, whether now or later in existence with jurisdiction over the Property or the construction of any portion of the Project. (hh) “Governmental Requirements” means and refers to all codes, statutes, ordinances, laws, permits, orders, and any rules and regulations promulgated thereunder of any Governmental Agency.
(ii) “Hazardous Substance” means and refers to, without limitation, substances defined as a “Hazardous Substance,” “hazardous material,” “toxic substance,” “solid waste,” or “pollutant or contaminate” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the Toxic Substances Control Act (“TSCA”) [15 U.S.C. Sections 2601, et seq.]; the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United States Department of Transportation (DOT) Table [ 49 CFR 172.101], or by the EPA, or any successor authority, as a Hazardous Substance [ 40 CFR Part 302]; and those substances defined as “hazardous waste” in Section 25117 of the California Health and Safety Code or, as a “Hazardous Substance” in Section 25316 of the California Health and Safety Code; other substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws, and shall also include manure, asbestos, polychlorinated biphenyl, flammable explosives, radioactive material, petroleum products, and substances designated as a hazardous substance pursuant to 33 U.S.C. Section 1321 or listed pursuant to 33 U.S.C. Section 1317.
(jj) “Institutional Lender” means any of the following institutions having assets or deposits in the aggregate of not less than One Hundred Million Dollars

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($100,000,000): a California chartered bank; a bank created and operated under and pursuant to the laws of the United States of America; an “incorporated admitted insurer” (as that term is used in Section 1100.1 of the California Insurance Code); a “foreign (other state) bank” (as that term is defined in Section 1700(1) of the California Financial Code); a federal savings and loan association (Cal. Fin. Code Section 8600); a commercial finance lender (within the meaning of Sections 2600 et seq. of the California Financial Code); a “foreign (other nation) bank” provided it is licensed to maintain an office in California, is licensed or otherwise authorized by another state to maintain an agency or branch office in that state, or maintains a federal agency or federal branch in any state (Section 1716 of the California Financial Code); a bank holding company or a subsidiary of a bank holding company which is not a bank (Section 3707 of the California Financial Code); a trust company, savings and loan association, insurance company, investment banker; college or university; pension or retirement fund or system, either governmental or private, or any pension or retirement fund or system of which any of the foregoing shall be trustee, provided the same be organized under the laws of the United States or of any state thereof; and a Real Estate Investment Trust, as defined in Section 856 of the Internal Revenue Code of 1986, as amended, provided such trust is listed on either the American Stock Exchange or the New York Stock Exchange.
(kk) “Lender” means and refers to any person or entity making a Loan to Developer.
(ll) “Loan” means and refers, individually, to any loan that Developer shall obtain that has been approved by City, the proceeds of which are to be used and applied solely to pay the reasonable costs of obtaining such loan and the costs of developing the Project.
(mm) “Memorandum of Agreement” means and refers to the
memorandum in substantially the form of Attachment No. 7 to this Agreement to be recorded against the Property at the Close of Escrow to provide constructive record notice of the existence and application of this Agreement to the Property. Following recordation of the Parcel Map and prior to the Close of Escrow, the legal description for the Property will be inserted into the Memorandum of Agreement.
(nn) "Monetary Liens" shall mean collectively, and "Monetary Lien" shall mean individually, (i) delinquent real property taxes, (ii) deeds of trust, security agreements, any other collateral assignments, claims for monetary amounts evidencing indebtedness of Seller and (iii) mechanics' liens, judgment or similar non-consensual liens that can be removed by the payment of money; provided, however, that the terms "Monetary Liens" and "Monetary Lien" shall not include any encumbrances or liens created by or through Developer.
(oo) “Option Agreement” means and refers to the option agreement in substantially the form of Attachment No. 9 to this Agreement to be recorded against the Property at the Close of Escrow, pursuant to which Developer shall grant to City an option to repurchase the Property if Developer fails to complete construction of the Project within six (6) years following the Close of Escrow. Following recordation of the Parcel Map and

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prior to the Close of Escrow, the legal description for the Property will be inserted into Option Agreement.
(pp) “Outside Closing Date” means and refers to April 30, 2023; provided, however, (i) if any of such dates is not a business day (meaning a day that documents can be placed of record in San Bernardino County), then the applicable date shall be extended to the second such business day thereafter, and (ii) if there is a pending appeal and/or protest of Entitlements as of such date then the Outside Closing Date shall be extended to a date that is thirty (30) days after a final resolution of such appeal and/or protest.
(qq) “Parcel Map” means and refers to a parcel map which, among other things, establishes the Property as a separate legal parcel, consistent with Attachment No. 1, and as necessary to accomplish the development of the Project. City, as the fee owner of the Property, will process and record the Parcel Map prior to the Close of Escrow.
(rr) “Party” means and refers, individually, to either City or Developer, as applicable.
(ss) “Parties” means and refers, collectively, to City and Developer. (tt) “PCO Report” means and refers to a preliminary change of ownership report required under California Revenue and Taxation Code Section 480.3. (uu) “Permitted Transfer” means and refers to any of the following types of Transfers by Developer, where the Person to which such Transfer is made, acquires the Property or a portion thereof (if such Permitted Transfer occurs after the Closing) and expressly assumes the obligations of Developer under this Agreement with respect to the portion of the Property so Transferred in a written instrument satisfactory to the City or acquires an equity interest in Developer:
(1) Any Transfer of stock or equity of Developer that does not change management or operational control of the Property or the Project or is less than a 49% interest, as set forth in Section (1) of the definition of Transfer. (2) Any Transfer of any interest in Developer irrespective of the percentage of ownership (i) to any other owner of any interest in Developer; or (ii) to any Affiliate.
(3) The pledge of any interest in the Property as security for a Loan.
(4) Any foreclosure or deed in lieu of foreclose under the documents evidencing and securing repayment of a Loan.
(5) Any Property Transfer to an entity in which Developer (or an Affiliate) owns a majority interest (i.e., over 51%).

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(6) The recordation of replacement/permanent financing to replace a Loan with an Institutional Lender.
(7) The granting of easements and licenses in the ordinary course of the development and ownership of the Property and the Project. (8) Any Transfer after which Sharad Kadakia, Ashutosh Kadakia and/or Atman Kadakia remain in operational control of Developer. (vv) “Person” means and refers to any association, corporation, governmental entity or agency, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization, or other entity of any kind.
(ww) “Preliminary Report” means and refers to a preliminary report issued by the Title Company for the Property, in contemplation of the issuance of the Developer’s Title Policy, accompanied by copies of all documents listed in Schedule B of the report as exceptions to coverage under the proposed Developer’s Title Policy. (xx) “Project” means and refers to Developer’s development on the Property of a single-branded or dual-branded hotel project, consisting of a Hampton Inn and/or Home 2 Suites by Hilton, or a Town Place Suites by Marriott, and all required and/or associated on-site and off-site improvements, all as generally described in the Scope of Development, and all to be developed in accordance with plans and specifications approved by City and any conditions imposed by City in its approval of the Developer’s development application(s) related to the Project. (yy) “Project Budget” means and refers to the budget attached hereto and incorporated herein as Attachment No. 6. With respect to said attached budget, City acknowledges and agrees that Developer’s cost estimates may change between the Effective Date and the Close of Escrow. In the event of any such changes, prior to the Close of Escrow, Developer shall submit its revised proposed budget to City for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed.

Upon City’s approval thereof, said revised proposed budget shall become the Project Budget, and said budget shall be the budget upon which City bases its review pursuant to Section 4.2(b)(4).
(zz) “Project Completion Date” means and refers to the date on which City issues a Release of Construction Covenants for the Project. (aaa) “Property” shall have the meaning ascribed thereto in Recital A.

The Property comprises approximately seventy-eight thousand seven hundred twenty-three and sixty-six hundredths (78,723.66) square feet. Following recordation of the Parcel Map and prior to the Close of Escrow, the legal description for the Property will be inserted into each of the City Grant Deed, Memorandum of Agreement, and Option Agreement.

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(bbb) “Property Transfer” means and refers to any “change in ownership,” as defined in Revenue and Taxation Code Sections 60, et seq., of all or any portion of the Property (but excluding the grant of any easements or similar rights required by City or other governmental agency with jurisdiction for the development of the Property). (ccc) “Purchase Price” means and refers to the amount of Four Hundred Thirty-Eight Thousand Nine Hundred Twenty-Seven Dollars and Twelve Cents ($438,927).
(ddd) “Record,” “recorded,” “recording” or “recordation” each mean and refer to recordation of the referenced document in the official records of the Recorder of the County of San Bernardino, California.
(eee) “Release of Construction Covenants” means and refers to the written certification of City that the Project is complete and in compliance with the terms and conditions of this Agreement, in substantially the form of Attachment No. 8 to this Agreement.
(fff) “Schedule of Performance” means and refers to the schedule for the performance of certain actions by City or Developer pursuant to the terms and conditions of this Agreement, attached to this Agreement as Attachment No. 2. (ggg) “Scope of Development” means and refers to the detailed description of the primary elements of the Project attached to this Agreement as Attachment No. 3.
(hhh) “Site Plan” means and refers to the site plan attached hereto and incorporated herein as Attachment No. 4.
(iii) “Supplemental Report” means and refers to a supplement issued to the Preliminary Report by Title Company, accompanied by the additional documents referred to thereon.
(jjj) “Title Company” means and refers to Fidelity National Title, at 56172 29 Palms Highway, Unit C, Yucca Valley, CA 92284. (kkk) “Transfer” means and refers to any of the following:
(1) Any total or partial sale, assignment, conveyance, trust, power, or transfer in any other mode or form, by Developer of more than a 49% interest in Developer’s interest in this Agreement, the Property, or the Project or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest in Developer’s interest in this Agreement, the Property, or the Project; or (2) Any total or partial sale, assignment, conveyance, or transfer in any other mode or form, of or with respect to any interest in Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest in any interest in Developer; or

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(3) Any merger, consolidation, sale or lease of all or substantially all of the assets of Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest of all or substantially all of the assets of Developer; or
(4) Any Property Transfer; or
(5) The recordation of any deed of trust, mortgage, lien or similar encumbrance against all or any portion of the Property or the Project other than a Loan. (lll) “Unavoidable Delay” means and refers to a delay in either Party performing any obligation under this Agreement, except payment of money, arising from or on account of any cause whatsoever beyond the Party’s reasonable control, despite such Party’s commercially reasonable efforts, including, without limitation, floods, earthquakes, or other extreme acts of nature, industry-wide strikes, unreasonable delays in obtaining governmental, utility company approvals or actions (provided, however, the Party claiming such delay makes a showing of reasonable and timely submission of all necessary materials and information, and that the response to such submittals was unusual, unreasonable and/or untimely), labor troubles or other union activities (but only to the extent such actions affect similar persons at that time and do not result from an act or omission of the Party), casualty, war, acts of terrorism, riots, epidemics, or pandemics.

Unavoidable Delay shall not include delay caused by a Party’s financial condition, illiquidity, or insolvency.

ARTICLE III
PROPERTY DISPOSITION; AS-IS SALE
Section 3.1 Purchase and Sale; Payment of Purchase Price. (a) Purchase and Sale. City shall sell the Property to Developer and Developer shall purchase the Property from City pursuant to the terms and conditions of this Agreement. For the purposes of exchanging funds and documents to complete the sale from City to Developer and the purchase by Developer from City of the Property, pursuant to the terms and conditions of this Agreement, City and Developer agree to open the Escrow with the Escrow Holder. ARTICLE IV of this Agreement constitutes the joint escrow instructions of the Parties to the Escrow Holder for the conduct of the Escrow for the sale of the Property. Developer and City shall execute the Escrow Holder’s standard or general escrow instructions, provided, however, that the provisions of this Agreement shall be controlling, in the event of any conflict between the provisions of this Agreement and any such standard or general escrow instructions requested by the Escrow Holder. (b) Payment of Purchase Price.
(1) Earnest Money Deposit. Within three (3) days after the opening of the Escrow, Developer shall deposit the Earnest Money Deposit into the Escrow. Escrow Holder shall release the entirety of the Earnest Money Deposit to City within three (3) days after the Entitlement Approval Date. Upon the Close of Escrow, the Earnest Money Deposit shall be credited to Developer toward the Purchase Price. In the

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event the Close of Escrow does not occur as a result of the failure of one of Developer’s conditions to closing to be satisfied, or waived by Developer, pursuant to the terms of this Agreement, or a material default by City, the Earnest Money Deposit shall be refundable to Developer. Notwithstanding anything in this Agreement to the contrary, a portion of the Earnest Money Deposit, in the amount of One Hundred Dollars ($100) (the “Independent Contract Consideration”), shall be released immediately to City as consideration for City’s execution and delivery of this Agreement and Developer’s right to approve or disapprove any Developer contingencies set forth in this Agreement with respect to the Property. The Independent Contract Consideration is in all respects nonrefundable to Developer.
(2) Balance of Purchase Price. At least one (1) business day preceding the date scheduled for the Close of Escrow, Developer shall deposit into the Escrow the balance of the Purchase Price (i.e., the Purchase Price less the Earnest Money Deposit), in cash or other immediately available funds.

Section 3.2 Title Approval. As soon as practicable following the Escrow Opening Date, City shall obtain the Preliminary Report from the Title Company and deliver a copy of the Preliminary Report to Developer. In addition to the foregoing, Developer shall have a right, at its own cost, to conduct a survey of the Property. Within forty-five (45) days following Developer’s receipt of the Preliminary Report, Developer shall deliver the Developer’s Title Notice to City. If Developer fails to deliver Developer’s Title Notice to City, within such forty-five (45) day period, Developer will be deemed to have disapproved the status of title to the Property and to terminate the Agreement.

Within twenty (20) days following the earlier of City’s receipt of Developer’s Title Notice or expiration of the time period provided in this Section 3.2 for delivery of Developer’s Title Notice, City shall serve City’s Title Notice Response. If the Developer’s Title Notice does not disapprove any matter in the Preliminary Report, City shall not be required to serve City’s Title Notice Response. If City does not serve City’s Title Notice Response, if necessary, within twenty (20) days following its receipt of the Developer’s Title Notice, City shall be deemed to elect not to cause any matter disapproved in the Developer’s Title Notice to be removed from the Preliminary Report. If City elects in City’s Title Notice Response to cause the removal of any matter disapproved in Developer’s Title Notice from the Preliminary Report, City shall cause the removal of each such matter from the Preliminary Report, prior to or concurrently with the Close of Escrow. Notwithstanding the foregoing, Monetary Liens shall be automatically deemed disapproved by Developer, and City shall discharge and remove all Monetary Liens from title to the Property through Escrow no later than the Close of Escrow. If City elects or is deemed to have elected not to cause the removal of any matter disapproved in the Developer’s Title Notice from the Preliminary Report, then, within ten (10) days following the earlier of Developer’s receipt of City’s Title Notice Response or the expiration of the time period provided in this Section 3.2 for delivery of City’s Title Notice Response, Developer shall either: (1) refuse to accept the title to and conveyance of the Property by delivering the Developer’s Second Title Notice to City, or (2) waive its disapproval of any matters set forth in the Developer’s Title Notice by delivering the Developer’s Title Notice Waiver to City. Failure by Developer to deliver Developer’s Title Notice Waiver, where City’s Title Notice Response or City’s failure to serve City’s Title Notice Response indicates or results in City’s election

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not to cause the removal of any one or more matters disapproved in Developer’s Title Notice from the Preliminary Report, within ten (10) days following Developer’s receipt of City’s Title Notice Response or expiration of the time period for City to deliver City’s Title Notice Response under this Agreement, will be deemed Developer’s disapproval of the status of title to the Property and termination of this Agreement. In the event Developer delivers Developer’s Second Title Notice to City, either City or Developer shall have the right to cancel the Escrow and terminate this Agreement, each in their respective sole and absolute discretion, by delivery of a written notice of termination to both the other Party and the Escrow Holder, in which case the Parties and the Escrow Holder shall proceed pursuant to Section 4.10.

In the event that a Supplemental Report is issued, the Parties shall follow and otherwise abide by the same process set forth above in this Section 3.2.

Section 3.3 Developer Due Diligence Investigations.
(a) City represents to Developer that prior to the Effective Date, City has provided Developer with hard copies, electronic files, or other access to all reports, plans, studies and other similar records with respect to the Property (collectively, “City Reports”) that are in City’s possession and reasonably known to City. Developer acknowledges and agrees that (i) the Property were acquired at different times and by various City entities, and (ii) although City has reviewed its real property files for City Reports, City has not conducted a comprehensive search of all City files for City Reports. (b) Developer shall complete all of its Due Diligence Investigations within the Due Diligence Period and shall conduct all of its Due Diligence Investigations at its sole cost and expense.
(c) City licenses, permits and authorizes Developer to enter the Property for the sole purpose of conducting Developer’s Due Diligence Investigations, subject to all of the terms and conditions of this Agreement. Developer shall have the right, but not the obligation, to engage in environmental testing, soils testing and surveying on the Property. Following the conduct of any Due Diligence Investigations on the Property, Developer shall restore the Property to substantially its condition prior to the conduct of such Due Diligence Investigations.
(d) Any Due Diligence Investigations of the Property by Developer shall not unreasonably disrupt any then-existing use or occupancy of the Property or the operations of City. The activities of Developer or its agents directly or indirectly related to Developer’s Due Diligence Investigations shall be subject to Developer’s indemnity, defense and hold harmless obligations pursuant to Section 9.8. Prior to commencing any Due Diligence Investigations on the Property, Developer shall deliver all copies of policies or certificates of insurance required to be delivered pursuant to Section 5.14. (e) Developer shall deliver to City and the Escrow Holder prior to the end of the Due Diligence Period a Due Diligence Investigation Conclusion Notice that either rejects the Property or unconditionally accepts the Property. If Developer does not deliver

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a Due Diligence Investigation Conclusion Notice unconditionally accepting the Property prior to the end of the Due Diligence Period, then Developer shall be deemed to have rejected the Property. If the Property is rejected by Developer, then each of City or Developer shall have the right, in their sole and absolute discretion, to cancel the Escrow and terminate this Agreement, by delivery of a written notice of termination to the other Party and the Escrow Holder, in which case the Parties and the Escrow Holder shall proceed pursuant to Section 4.10.

Section 3.4 Developer to Obtain all Project Approvals.
(a) Following the Escrow Opening Date, City shall reasonably consent, as necessary, to Developer processing necessary entitlements, permits or applications with each Governmental Agency for development of the Project, including, as necessary, the City Manager signing any such applications on behalf of City, as the owner of the Property.
(b) Developer shall, within the time period(s) for such actions set forth in the Schedule of Performance (subject to Unavoidable Delays), prepare and submit a complete application and any other required application, document, fee, charge or other item (including, without limitation, deposit, fund or surety) required for construction of the Project, pursuant to all Governmental Requirements, to each necessary Governmental Agency for review and approval. City’s zoning, building and land use regulations (whether contained in ordinances, City’s municipal code, conditions of approval or elsewhere), shall be applicable to the construction of the Project by Developer pursuant to this Agreement.

Developer acknowledges that all plans and specifications and any changes to plans and specifications for the Project shall be subject to all Governmental Requirements.

No action by City with reference to this Agreement or any related documents shall be deemed to constitute a waiver of any required City permit, approval or authorization regarding the Property, the Project, Developer, any successor-in-interest of the Developer or any successor-in-interest to the Property.
(c) The approval of this Agreement by City shall not constitute a pre-commitment by City, the Planning Department of City, or the City Council of City regarding any approvals required for development of the Project, including, without limitation, all required analysis under CEQA. Developer obtains no right or entitlement to construct the Project by virtue of this Agreement. City reserves unfettered discretion to approve, conditionally approve, or deny any entitlements and/or other approvals required for the Project and all proceedings and decisions in connection therewith. This Agreement shall not be construed as a grant of development rights or land use entitlements to construct the Project on the Property. All design, architectural, and building plans for the Project shall be subject to the review and approval of City and any other Governmental Agency.

By its execution of this Agreement, City is not committing itself to or agreeing to undertake any acts or activities requiring the subsequent independent exercise of discretion by City or any agency or department thereof.

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(d) If any revisions of the Project are required by a Governmental Agency, Developer shall promptly make any such revisions, provided such revisions are generally consistent with the Scope of Development.
(e) Notwithstanding any provision to the contrary in this Agreement, Developer agrees to abide by and comply fully with any and all conditions of approval applicable to all approvals, permits and other governmental actions regarding the construction of the Project; provided, however, that Developer reserves its rights to challenge any illegally imposed condition of approval applicable to an approval, permit, or other governmental action regarding the construction of the Project. (f) Developer acknowledges and agrees that City shall not provide any financial assistance to Developer in connection with the construction of the Project.

Developer shall be solely responsible for paying for the costs of all design work, construction, labor, materials, fees, permit, application, surety bond and other expenses associated with the Project. Developer shall pay any and all fees pertaining to the review and approval of the Project by each Governmental Agency and utility service providers, including the costs of preparation of all required construction, planning and other documents reasonably required by each Governmental Agency or utility service provider pertinent to the construction of the Project, including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications, zoning applications, environmental review and disclosure documents and design review documents.

Developer shall obtain any and all necessary governmental approvals, prior to the commencement of construction of the Project, and Developer shall take all necessary precautions to ensure the safety and stability of surrounding properties during the construction of the Project.
(g) Developer shall obtain all entitlements, permits and other approvals for construction of the Project from each Governmental Agency, within the time periods for such actions set forth in the Schedule of Performance, subject to any extensions of time authorized by this Agreement upon the occurrence of an Unavoidable Delay.

ARTICLE IV

JOINT ESCROW INSTRUCTIONS
Section 4.1 Opening of Escrow. City and Developer shall cause the Escrow to be opened within five (5) days following the Effective Date. Escrow Holder shall promptly confirm in writing to each of the Parties the date of the Escrow Opening Date.

This ARTICLE IV shall constitute the joint escrow instructions of City and Developer to Escrow Holder for conduct of the Escrow.

Section 4.2 Conditions to Close of Escrow. The conditions set forth below in this Section 4.2 shall be satisfied or waived by the respective benefited Party on or before the Outside Closing Date or the Party benefited by any unsatisfied condition shall not be required to proceed to close the Escrow.

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(a) Developer’s Conditions. Developer’s obligation to purchase the Property from City shall be subject to the satisfaction or waiver of each of the following conditions precedent, each of which can only be waived in writing by Developer, in Developer’s sole and absolute discretion:
(1) Developer has delivered the Due Diligence Investigation Conclusion Notice approving the Property, and has not timely elected to terminate the Escrow and this Agreement pursuant to the provisions in Section 3.2; (2) The occurrence of the Entitlement Approval Date;
(3) The Parcel Map shall have been processed and recorded; (4) The Title Company is unconditionally committed to issue the Developer’s Title Policy to Developer, at the Close of Escrow; (5) City has deposited all of the items into the Escrow required by Section 4.4;
(6) Developer has reasonably approved the Escrow Holder’s final estimated closing/settlement statement;
(7) Developer has processed through City and obtained City approval of building plans for all components of the Project and, subject to the payment of fees, has obtained all City permits required to commence and complete construction of the Project;
(8) Developer is issued the first building permit for the Project; (9) There has been no material adverse changes in the physical conditions of the Property, and City has performed all of its material obligations required to be performed by City under this Agreement prior to Close of Escrow; and is not in default of any of its obligations under this Agreement. (b) City’s Conditions. City’s obligation to sell the Property to Developer shall be subject to the satisfaction or waiver of each of the following conditions precedent, which can only be waived in writing by City, in City’s sole and absolute discretion:
(1) Developer has deposited the Earnest Money Deposit into Escrow, pursuant to Section 3.1(b), and the Earnest Money Deposit has been released to City;
(2) Developer has not timely elected to terminate the Escrow and this Agreement pursuant to the provisions in Section 3.2; (3) The occurrence of the Entitlement Approval Date;

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(4) Developer has provided evidence reasonably satisfactory to City that Developer has sufficient financing, or Developer has obtained commitments for sufficient financing, to develop the Project in accordance with the Project Budget, and any such financing for which Developer has obtained commitments for Project shall close and be available to Developer on the Close of Escrow;
(5) Developer has provided evidence reasonably acceptable to City that Developer has (i) retained a general contractor for construction of the Project that is licensed in California and experienced in the construction of projects similar to the Project (a “General Contractor”), and (ii) entered into a legally binding written contract with the General Contractor for the construction of the Project; (6) Developer has deposited all of the items into Escrow required by Section 4.3;
(7) Developer has processed through City and obtained City approval of building plans for all components of the Project and, subject to the payment of fees;
(8) Developer has obtained all City permits required to commence and complete construction of the Project;
(9) Developer, at its sole cost and expense, shall have provided to City all studies, reports, data, and supporting materials necessary for City to conduct all required analysis under CEQA, City shall have completed such analysis, and the City Council or City Planning Commission (as applicable), in its discretion, as set forth by law, shall have made all requisite findings, determinations, and/or certifications necessary to enable the Project to move forward;
(10) The Parcel Map shall have been processed and recorded; (11) The representations, warranties and covenants of Developer set forth in ARTICLE VIII are true and correct in all material respects on the Effective Date and continuing through and including on the Close of Escrow; (12) Developer has delivered to City organizational documents evidencing the establishment and good standing of Developer, and the authority of Developer to enter into this Agreement and perform its obligations hereunder; (13) No information shall have come to the attention of City that could affect the financial viability of the Project and/or Developer’s financial condition and capability to develop the Project;
(14) Developer has provided evidence satisfactory to City that Developer has the right to operate the Project as a single branded or dual-branded hotel under the flag(s) of “Hampton Inn” and/or “Home 2 Suites” by Hilton, or “Town Place Suites” by Marriott; and

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(15) Developer has performed all of its material obligations required to be performed by Developer under this Agreement prior to Close of Escrow; and is not in default of any of its obligations under this Agreement.

Section 4.3 Developer’s Escrow Deposits. Following satisfaction or waiver of each of Developer’s conditions to the Close of Escrow set forth in Section 4.2(a), at least one (1) business day prior to the date scheduled by the Escrow Holder for the Close of Escrow, in a writing delivered to each of the Parties, Developer shall deposit the following funds and documents into the Escrow and, concurrently, provide a copy of each such document to City:
(a) Remaining Balance of Purchase Price. The remaining balance of the Purchase Price (i.e., the Purchase Price less the Earnest Money Deposit). (b) Additional Funds. Any additional funds required to be deposited into the Escrow by Developer under the terms of this Agreement to close the Escrow, such funds required shall be deposited in immediately available funds; (c) PCO Report. A Preliminary Change of Ownership Report executed by the authorized representative(s) of Developer;
(d) Memorandum of Agreement. The Memorandum of Agreement executed by the authorized representative(s) of Developer, with signatures notarized; and (e) Option Agreement. The Option Agreement executed by the authorized representative(s) of Developer, with signatures notarized. (f) Other Documents. Such other documents reasonably and customarily required by Escrow for Close of Escrow.

Section 4.4 City’s Escrow Deposits. Following satisfaction or waiver of each of City’s conditions to Close of Escrow set forth in Section 4.2(b), at least one (1) business day prior to the date scheduled by the Escrow Holder for the Close of Escrow, in a writing delivered to each of the Parties, City shall deposit the following funds and documents into the Escrow and, concurrently, provide a copy of each such document to Developer:
(a) City Grant Deed. The City Grant Deed executed by the authorized representative(s) of City in recordable form;
(b) FIRPTA Affidavit. The FIRPTA Affidavit completed and executed by the authorized representative(s) of City;
(c) Memorandum of Agreement. The Memorandum of Agreement executed by the authorized representative(s) of City, with signatures acknowledged; (d) Option Agreement. The Option Agreement executed by the authorized representative(s) of Developer, with signatures notarized; and

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(e) Form 593. A Form 593 executed by the authorized representative(s) of City.
(f) Owner’s Affidavit. A standard form of Owner’s Affidavit signed by the authorized representative(s) of the City.
(g) Other Documents. Such other documents reasonably and customarily required by Escrow for Close of Escrow.

Section 4.5 Closing Procedure. When each of Developer’s Escrow deposits, as set forth in Section 4.3, and each of City’s Escrow deposits, as set forth in Section 4.4, are deposited into the Escrow, the Escrow Holder shall request confirmation in writing from both City and Developer that each of their respective conditions to the Close of Escrow, as set forth in Section 4.2, are satisfied or waived. Upon the Escrow Holder’s receipt of written confirmation from both City and Developer that each of their respective conditions to the Close of Escrow are either satisfied or waived, the Escrow Holder shall close the Escrow by doing all of the following:
(a) Insertion of Dates. Insert the date of the Close of Escrow into the City Grant Deed, Memorandum of Agreement, and Option Agreement, as the date of such document, prior to the recordation of the City Grant Deed, Memorandum of Agreement, and Option Agreement;
(b) Recordation of Documents. Record the City Grant Deed, Memorandum of Agreement, and Option Agreement in the Official Records of the County of San Bernardino, California, for recordation in the order set forth in Section 4.7; (c) Distribution of Recorded Documents. Distribute conformed copies of each recorded document to the Party or person designated for such distribution in Section 4.7;
(d) PCO Report. File the PCO Report in the Official Records of the County of San Bernardino, California;
(e) FIRPTA Affidavit. Deliver the FIRPTA Affidavit to Developer, and deliver a copy to City;
(f) Form 593. Deliver the Form 593 to Developer, and deliver a copy to City;
(g) Developer’s Title Policy. Obtain and deliver to Developer the Developer’s Title Policy;
(h) Remaining Funds. Return all remaining funds held by the Escrow Holder for the account of Developer to Developer, less Developer’s share of the Escrow closing costs, and less any other charges chargeable to the account of Developer under the terms of this Agreement; and

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(i) Report to IRS. Following the Close of Escrow and prior to the last date on which such report is required to be filed with the Internal Revenue Service, if such report is required pursuant to Section 6045(e) of the Internal Revenue Code, the Escrow Holder shall report the gross proceeds of the purchase and sale of the Property to the Internal Revenue Service on Form 1099-B, W-9 or such other form(s) as may be specified by the Internal Revenue Service pursuant to Section 6045(e). Upon the filing of such reporting form with the Internal Revenue Service, the Escrow Holder shall deliver a copy of the filed form to City and Developer.

Section 4.6 Close of Escrow. Close of Escrow shall occur on or before the Outside Closing Date. If for any reason the Close of Escrow has not occurred on or before the Outside Closing Date, then any Party not then in default of this Agreement may cancel the Escrow and terminate this Agreement, without liability to the other Party or any other person for such cancellation and termination, by delivering written notice of termination to both the other Party and the Escrow Holder and, thereafter, the Parties shall proceed pursuant to Section 4.10. Without limiting the right of either Party to cancel the Escrow and terminate this Agreement pursuant to the preceding sentence, if the Escrow does not close on or before the Outside Closing Date, and neither Party has exercised its contractual right to cancel the Escrow and terminate this Agreement before such time, then the Escrow shall close as soon as reasonably possible following the first date on which the Escrow Holder is in a position to close the Escrow, pursuant to the terms and conditions of this Agreement.

Section 4.7 Recordation and Distribution of Documents. Escrow Holder shall cause the following documents to be recorded in the official records of the Recorder of the County of San Bernardino, California, in the following order at the Close of Escrow:
(i) City Grant Deed, (ii) Memorandum of Agreement, (iii) Option Agreement, and (iv) any other documents to be recorded through the Escrow upon the joint instructions of the Parties. The Escrow Holder shall deliver conformed copies of all documents recorded through the Escrow to City and Developer and any other person designated in the joint escrow instructions of the Parties to receive a conformed copy of each such document, each showing all recording information.

Section 4.8 Escrow Closing Costs, Taxes and Title Policy Premium. Developer and City shall each pay half of the documentary transfer taxes, Escrow fees, and such other costs as the Escrow Holder may charge for the conduct of the Escrow. The Escrow Holder shall notify Developer and City of the costs to be borne by each of Developer and City at the Close of Escrow by delivering the Escrow Holder’s estimated closing/settlement statement to both City and Developer, at least, four (4) business days prior to the date scheduled for the Close of Escrow. City shall pay the premium charged by the Title Company for the Developer’s Title Policy, with standard coverage; provided, however, that Developer shall pay the costs of any endorsements or other supplements to the coverage of the Developer’s Title Policy that may be requested by Developer, including the additional cost for extended ALTA coverage, if such coverage is elected by Developer. City shall pay any and all recording fees, and any and all other charges, fees and taxes levied by a governmental authority relative to the conveyance of the Property through the Escrow.

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Section 4.9 Escrow Cancellation Charges. If the Escrow fails to close due to City’s material default under this Agreement, City shall pay all ordinary and reasonable cancellation charges relating to the Escrow and the Developer’s Title Policy. If the Escrow fails to close due to Developer’s material default under this Agreement, or for any reason other than the material default of City, Developer shall pay all ordinary and reasonable cancellation charges relating to the Escrow and the Developer’s Title Policy.

Section 4.10 Escrow Cancellation. If the Escrow is cancelled and this Agreement is terminated pursuant to a contractual right granted to a Party in this Agreement to cancel the Escrow and terminate this Agreement, other than due to the default of another Party, the Parties shall do each of the following:
(a) Cancellation Instructions. The Parties shall, within three (3) business days following receipt of the Escrow Holder’s written request, execute any reasonable Escrow cancellation instructions requested by the Escrow Holder; (b) Return of Funds and Documents. Within ten (10) days following receipt by the Parties of a settlement statement from the Escrow Holder of cancellation charges regarding the Escrow and the Developer’s Title Policy, if any: (i) Developer or the Escrow Holder shall return to City any documents previously delivered by City to Developer or the Escrow Holder regarding the Escrow, (ii) City or the Escrow Holder shall return to Developer all documents previously delivered by Developer to City or the Escrow Holder regarding the Escrow; and (iii) the Escrow Holder shall return to Developer any funds deposited into the Escrow, except as otherwise provided in either Section 3.1(b) or Section 9.3, less the customary and reasonable Escrow and title order cancellation charges regarding the Escrow and the Developer’s Title Policy, if any.

Section 4.11 Entitlement Claims; CEQA Claims. If any Entitlement Claims and/or CEQA Claims are taken or filed, then Developer shall have the right to elect to either defend the same or not defend the same, at Developer’s cost, including, without limitation, all of the court costs, attorney fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the legal action. If Developer elects to so defend the same, then Developer shall appoint counsel and direct strategy; provided, however, that such counsel shall be reasonably acceptable to City. If Developer elects not to so defend, then either City or Developer shall have the right to terminate this Agreement. In the event that the Agreement is terminated, the Escrow shall be cancelled pursuant to Section 4.10 above.

ARTICLE V

PROJECT DEVELOPMENT
Section 5.1 Developer Covenant to Undertake Project. Developer covenants and agrees for itself and its successors and assigns, to and for the exclusive benefit of City, that Developer shall develop the Project in a good and workmanlike manner, in conformity with the terms and conditions of this Agreement, the Scope of Development, the Entitlements, any and all plans, specifications and similar development documents

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required by this Agreement and approved by City, including all conditions of approval issued in connection with any of the foregoing approvals, except for such changes as may be mutually agreed upon in writing by and between Developer and City, and all applicable laws, regulations, orders and conditions of each Governmental Agency. The covenants of this Section 5.1 shall run with the land of the Property until the Project Completion Date.

With the exceptions of any indemnification obligations of Developer, the provisions of this Article V shall terminate and be of no further force and effect upon the Project Completion Date.

Section 5.2 Additional Governmental Permits and Approvals. (a) Before commencement of construction or development of any buildings, structures or other works of improvement upon the Property by Developer, Developer shall, at its own expense, secure or cause to be secured any and all permits and approvals not included in the Entitlements which may be required by City or any other governmental agency affected by or with jurisdiction over such construction, development or work.
(b) The landscaping and finish grading plans shall be prepared by a professional landscape architect or registered civil engineer who may be the same firm as Developer’s architect or civil engineer. During the preparation of all drawings and plans, staff of Developer shall hold regular progress meetings with City to coordinate the preparation of, submission to, and review of drawings, plans and related documents by City. The staff of City and Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to City can receive prompt and speedy consideration. City shall approve, conditionally approve, or deny, in writing, any formally submitted plans within thirty (30) days after submission to City.
(c) Developer shall pay all necessary fees and timely submit to City final construction documents with final corrections required by City to obtain building permits for the Project.

Section 5.3 Review and Approval of Plans, Drawings, and Related Documents.

If City determines that any submittal is not substantially complete or not in accordance with procedures, such tender shall not be deemed to constitute a submittal for purposes of satisfying the Schedule of Performance. Subject to Section 5.5, if Developer desires to make any changes in the construction plans after their approval by City, Developer shall submit the proposed change to City for approval. If the construction plans, as modified by the proposed change, conform to the requirements of this Section 5.3, the Entitlements, the Scope of Development, and all Governmental Requirements, City shall approve the proposed change in writing within thirty (30) days after submission to City.

Section 5.4 Cost of Development. Developer acknowledges and agrees that all costs for acquisition of the Property and development of the Project shall be borne exclusively by Developer. Developer shall also bear all costs related to discharging the

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duties of Developer set forth in this Agreement. Developer shall also be responsible for all fees associated with and required for development of the Project.

Section 5.5 Developer Changes to Project Plans and Specifications During Course of Construction. Developer shall have the right, during the course of construction of the Project, to make “Minor Field Changes” (as defined in the following sentence), without seeking the approval of City, if such changes do not affect the type of use to be conducted within all or any portion of a structure. “Minor Field Changes” shall be defined as those changes from the approved construction drawings, plans and specifications that:
(1) have no substantial effect on the Project and are made in order to expedite, clarify or facilitate the work of construction in response to field conditions; (2) are changes to the Project’s interior spaces that substantially conform to the drawings, plans, and specifications and/or are required pursuant to an applicable law; (3) are changes that represent the selection of a particular design option or feature; (4) are changes that are required under applicable laws; and/or (5) are changes dictated by the identification of any unforeseen conditions. Nothing contained in this Section 5.5 shall be deemed to constitute a waiver of or change in any Governmental Requirements governing any such Minor Field Changes or in any approvals by any Governmental Agency otherwise required for any such Minor Field Changes.

Section 5.6 Completion of Project.
(a) Upon Developer’s completion of the Project, Developer shall:
(1) Record a Notice of Completion, in accordance with California Civil Code Section 3093, for the entirety of the Project; (2) Cause the improvements complete within the Project to be inspected by each Governmental Agency and correct any defects and deficiencies that may be disclosed by any such inspection; and
(3) Cause all occupancy certificates and other licenses, permits and authorizations necessary for the operation and occupancy of the completed Project to be duly issued.
(b) After commencement of the work of improvement of the Project, and subject to Unavoidable Delays, Developer shall not permit the work of improvement of the Project to cease or be suspended for a time period in excess of thirty (30) calendar days, either consecutively or in the aggregate. Notwithstanding the foregoing, such thirty (30) calendar day period may be extended by the City Manager for up to an additional thirty (30) calendar days, in the aggregate, unless caused by Unavoidable Delays.

Section 5.7 Compliance with Laws. All work performed in connection with the construction of the Project shall comply with all Governmental Requirements.

Section 5.8 Schedule of Performance. All planning, construction, and other development obligations and responsibilities of Developer related to the Project shall be initiated and completed within the times specified in the Schedule of Performance, subject

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to Unavoidable Delay, or within such reasonable extensions of such times granted by City in writing or as otherwise provided for in this Agreement.

Section 5.9 Developer Attendance at City Meetings. Developer agrees to have one or more of its employees or consultants who are knowledgeable regarding this Agreement and the development of the Project, such that such person(s) can meaningfully respond to City staff questions regarding the progress of the Project, attend meetings with City staff or meetings of the Twentynine Palms City Council, when reasonably requested to do so by City staff.

Section 5.10 City Right to Inspect Project and Property. Officers, employees, agents and representatives of City shall have the right of reasonable access to the Property, without the payment of charges or fees, during normal construction hours, during the period of construction of the Project. Any and all officers, employees, agents or representatives of City who enter the Property shall identify themselves at the construction management office or, if none, to the apparent on-site construction supervisor on the Property, upon their entrance onto the Property, and shall at all times be accompanied by a representative of Developer, while on the Property. Developer shall make a representative of Developer available for this purpose at all times during normal construction hours, upon reasonable advance notice from City. If in City’s reasonable judgment it is necessary, City shall have the further right, from time to time, to retain (at the sole cost and expense of the City) a consultant or consultants to inspect the Project and verify compliance by Developer with the provisions of this Agreement. Developer acknowledges and agrees that any such City inspections are for the sole purpose of protecting City’s rights under this Agreement, are made solely for City’s benefit, may be superficial and general in nature, and are for the purposes of informing City of the progress of the Project and the conformity of the Project with the terms and conditions of this Agreement, and that Developer shall not be entitled to rely on any such inspection(s) as constituting City’s approval, satisfaction or acceptance of any materials, workmanship, conformity of the Project with this Agreement or otherwise. Developer agrees to make its own regular inspections of the work of construction of the Project to determine that the quality of the Project and all other requirements of the work of construction of the Project are being performed in a manner satisfactory to Developer.

Section 5.11 Construction in Compliance with Applicable Laws.

If any portion of the Project which is considered to be a public works as defined in Labor Code Section 1720 is constructed by or on behalf of Developer, then: (i) the Developer shall and shall cause the general contractor and all subcontractors to pay prevailing wages in the construction of the Project as those wages are determined pursuant to Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations and comply with the other applicable provisions of Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations; and (ii) the Developer shall and shall cause its general contractor and subcontractors to keep and retain such records as are necessary to determine that prevailing wages have been paid as required by law. Developer shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against

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any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Developer, its contractors and subcontractors) to pay prevailing wages as required by law or to comply with the other applicable provisions of Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations in connection with construction of the Project or any other work undertaken or in connection with the Property. Furthermore, Developer expressly, knowingly and voluntarily acknowledges and agrees that City has not previously represented to Developer or to any representative, agent or affiliate of Developer, or any contractor(s) or any subcontractor(s) for the construction or development of the Project, in writing or otherwise, in a call for bids or otherwise, that the work and construction of the Project is (or is not) a public work, as defined in Labor Code Section 1720.

DEVELOPER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND

ASSIGNS, WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO ANY OF THEM PURSUANT TO LABOR CODE SECTION 1781.

DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE
SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 5.11, WHICH READS AS FOLLOWS:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT

TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM

OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.

BY INITIALING BELOW, DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 5.11:

Developer’s Initials
Section 5.12 AS-IS SALE; RELEASE
(a) Developer acknowledges, agrees, and represents to City that Developer is experienced in the acquisition and development of land similar to the Property and that as of the Close of Escrow, it has been given an adequate opportunity to review and inspect, and has approved all aspects of, the Property. Developer shall rely solely and exclusively upon the results of its Due Diligence Investigations of the Property, including, without limitation, investigations regarding geotechnical soil conditions, compliance with applicable laws pertaining to the use of the Property by Developer and any other matters relevant to the condition or suitability of the Property for the Project, as Developer may deem necessary or appropriate. City makes no representation or warranty to Developer relating to the condition of the Property or suitability of the Property for any intended use or development by Developer.

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(b) Developer shall accept all conditions of the Property, without any liability of City whatsoever, upon Developer’s acceptance of the Property indicated in its Due Diligence Investigation Conclusion Notice. Developer’s delivery of its Due Diligence Investigation Conclusion Notice indicating Developer’s unconditional acceptance of the Property, shall evidence Developer’s unconditional and irrevocable acceptance of the Property in the Property’s AS IS, WHERE IS, SUBJECT TO ALL FAULTS CONDITION,

WITHOUT WARRANTY AS TO QUALITY, CHARACTER, PERFORMANCE OR CONDITION and with full knowledge of the physical condition of the Property, all zoning, other land use laws and other Governmental Requirements affecting the Property, and of the conditions, restrictions, encumbrances and all matters of record relating to the Property. Developer’s delivery of its Due Diligence Investigation Conclusion Notice indicating Developer’s unconditional acceptance of the Property shall constitute Developer’s representation and warranty to City that Developer has received assurances acceptable to Developer by means independent of City or any agent of City of the truth of all facts material to Developer’s acquisition of the Property pursuant to this Agreement, and that the Property is being acquired by Developer as a result of its own knowledge, inspection and investigation of the Property and not as a result of any representations made by City or any employee, official, consultant or agent of City relating to the condition of the Property, unless such statement or representation is expressly and specifically set forth in this Agreement. City hereby expressly and specifically disclaims any express or implied warranties regarding the Property.

DEVELOPER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND

ASSIGNS, WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY

BE AVAILABLE TO ANY OF THEM WITH RESPECT TO THE CONDITION OF THE PROPERTY. DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 5.12, WHICH READS AS FOLLOWS:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY..

BY INITIALING BELOW, DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 5.12:
________________
Developer’s Initials
Section 5.13 Environmental Indemnity of City by Developer. On and after the Close of Escrow, Developer agrees, at its sole cost and expense, to fully indemnify, protect, hold harmless, and defend (with counsel selected by Developer and approved by

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City) City and City Personnel, and each of them, from and against any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever (collectively, “Environmental Losses”) that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, City directly or indirectly relating to or arising from any of the following “Environmental Matters” occurring during and/or arising from Developer’s construction of the Project:
(a) The presence of Hazardous Substances on, in, under, from or affecting all or any portion of the Property or the Project brought upon the Property by Developer or its contractors during the construction of the Project. (b) The storage, holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Substances on, in, under, from or affecting the Property or the Project brought upon the Property by Developer or its contractors during the construction of the Project. (c) The violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by Developer, its agents or contractors, relating to or governing in any way Hazardous Substances on, in, under, from or affecting the Property or the Project brought upon the Property by Developer or its contractors during the construction of the Project. (d) The violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by Developer, its agents or contractors, relating to or governing in any way the discharge of storm water on, in, under, from or affecting the Property or the Project, and the failure of Developer, its agents or contractors to comply with any permit issued pursuant to the National Pollutant Discharge Elimination System and applicable to the Project and/or Property. (e) The failure of Developer, its agents or contractors, to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like in connection with Developer’s construction of the Project. (f) The implementation and enforcement by Developer, its agents or contractors of any monitoring, notification or other precautionary measures that may, at any time, become necessary to protect against the release, potential release or discharge of Hazardous Substances on, in, under, from or affecting the Property or the Project brought upon the Property by Developer or its contractors during the construction of the Project.
(g) The failure of Developer, its agents or contractors, in compliance with all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of any Hazardous Substances existing, stored or generated on, in, under or from the

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Property or the Project brought upon the Property by Developer or its contractors during the construction of the Project.
(h) Any investigation, inquiry, order, hearing, action or other proceeding by or before any Governmental Agency in connection with any Hazardous Substances on, in, under, from or affecting the Property or the Project brought upon the Property by Developer or its contractors during the construction of the Project or the violation of any Environmental Law relating to the Property or the Project during the construction of the Project.

On and after the Close of Escrow, Developer shall pay to City all costs and expenses including, without limitation, reasonable attorney’s fees and costs, incurred by City in connection with enforcement of the aforementioned environmental indemnity.

Section 5.14 Insurance. During the construction of the Project and continuing until the Project Completion Date, in order to protect City and City Personnel against any and all claims and liability for death, injury, loss and damage resulting from Developer’s actions in connection with this Agreement, the Property and the Project, Developer shall secure and maintain the insurance coverage described in and required by this Section 5.14. Developer shall pay any deductibles and self-insured retentions under all insurance policies issued in satisfaction of the terms of this Agreement. (a) Workers’ Compensation Insurance Requirement. On and after the Close of Escrow, Developer shall submit written proof, if Developer has employees, that Developer is insured against liability for workers’ compensation in accordance with the provisions of Section 3700 of the Labor Code. By executing this Agreement, Developer makes the following certification, required by Section 1861 of the Labor Code:
“I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of the Agreement.”
(1) On and after the Close of Escrow, Developer shall require each contractor and sub-contractor performing work on the Project or the Property to provide workers’ compensation coverage for all of such contractor’s or sub-contractor’s employees, unless the contractor’s or sub-contractor’s employees are covered by workers’ compensation insurance provided by Developer. If any class of employees engaged in work or services performed in connection with the Project is not covered by Labor Code Section 3700, Developer shall provide and/or require each contractor or sub-contractor to provide adequate workers’ compensation insurance covering such employees.
(b) Liability and Permanent Insurance Requirements.

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(1) On and after the Close of Escrow, Developer shall maintain in full force and effect, until the Project Completion Date, subject to subsection (e), the following insurance coverage:

Commercial General Liability Insurance coverage, including, but not limited to, Premises-Operations, Contractual Liability Insurance (specifically covering the indemnity obligations of Developer pursuant to this Agreement), Products-Completed Operations Hazards, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of the construction of the Project and/or the Developer’s operation of the Property or the Project.
(i) Commercial general liability insurance coverage shall have minimum limits for Bodily Injury and Property Damage liability of FIVE MILLION DOLLARS ($5,000,000) each occurrence and TEN MILLION DOLLARS ($10,000,000) aggregate.
(ii) Automobile Liability Insurance against claims of
Personal Injury (including bodily injury and death) and Property Damage covering all owned, leased, hired and non-owned vehicles used by Developer with minimum limits for Bodily Injury and Property Damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such insurance shall be provided by a business or commercial vehicle policy. (iii) If Developer hires a consultant to provide design services, such as architectural or engineering services in connection with the Project, or any portion of the Project, Developer shall require each such consultant to provide Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, the performance of such design services, with limits of not less than ONE MILLION DOLLARS ($1,000,000).
(c) On and after the Close of Escrow, Developer shall require that each contractor performing work on the Project maintain the following insurance coverage, as specified below:
(1) Each General Contractor shall maintain Builder’s Risk Insurance to be written on an All Risk Completed Value form, in an aggregate amount equal to 100% of the completed insurable value of the Project. (2) Each General Contractor and each sub-contractor performing work exceeding One Million Dollars ($1,000,000) shall maintain Commercial General Liability Insurance with limits of not less than FIVE MILLION DOLLARS ($5,000,000) per occurrence and TEN MILLION DOLLARS ($10,000,000) aggregate to protect Developer during the construction of the Project from claims involving bodily injury and/or death and damage to the property of others.

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(3) Each General Contractor and each sub-contractor performing work exceeding One Million Dollars ($1,000,000) shall maintain Automobile Liability Insurance against claims of personal injury (including bodily injury and death) and property damage covering all owned, leased, hired and non-owned vehicles used in the performance of the contractor’s obligations with minimum limits for bodily injury and property damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such insurance shall be provided by a business or commercial vehicle policy.
(d) The Commercial General Liability Insurance required in subsection (b)(1)(i) above, shall include an endorsement naming City and City Personnel as additional insureds for liability arising out of this Agreement and any operation related to this Agreement.
(e) If any of the insurance coverage required under this Agreement is written on a claims-made basis, such insurance policy shall provide an extended reporting period continuing through the fifth (5th) anniversary of the Project Completion Date.

The requirements of this subsection (e) shall survive any expiration or termination of this Agreement and the recordation of the City Grant Deed and City’s issuance of the Release of Construction Covenants for the Project.
(f) Receipt by City of evidence of insurance that does not comply with the above requirements shall not constitute a waiver of the insurance requirements of this Agreement.
(g) Subject to subsection (e), the above required insurance coverage shall be maintained by Developer or its contractors, as required by the terms of this Agreement, shall not be reduced, modified, or canceled without, at least, thirty (30) days prior written notice to City. Also, phrases such as “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company” shall not be included in the cancellation wording of any Certificates of Insurance or any coverage for City and City Personnel. Developer shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits are exhausted or upon insolvency of the insurer that issued the policy. (h) All insurance to be obtained and maintained by Developer under this Agreement shall be issued by a company or companies listed in the then current “Best’s Key Rating Guide” publication with a minimum of an “A; IX” rating and be admitted to business in the State of California by the State of California Department of Insurance. (i) City will not accept self-insurance in satisfaction of the insurance requirements of this Section 5.14.
(j) All insurance obtained and maintained by Developer in satisfaction of the requirements of this Agreement shall be primary to and not contributing to any insurance maintained by any of City and City Personnel.

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(k) Insurance coverage in the minimum amounts set forth in this Agreement shall not be construed to relieve Developer of any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude City from taking such other actions as are available to it under any other provision of this Agreement or otherwise at law. (l) Failure by Developer to maintain all insurance required by this Agreement in effect at all times shall be an Event of Default by Developer. City, at its sole option, may exercise any remedy available to it in connection with such an Event of Default. Additionally, City may purchase such required insurance coverage and City shall be entitled to immediate payment from Developer for any premiums and associated costs paid by City for such insurance coverage. Any election by City to purchase or not to purchase insurance for Developer shall not relieve Developer of its obligation to obtain and maintain the insurance coverage required by this Agreement.

Section 5.15 Release of Construction Covenants.
(a) Following the completion of the Project, excluding any normal and minor building “punch-list” items to be completed by Developer, and upon written request from Developer for issuance of a Release of Construction Covenants, City shall inspect the Project to determine whether or not the Project has been completed in substantial conformance with this Agreement. If City determines that the Project is complete and in substantial conformance with this Agreement, which determination shall not be unreasonably withheld, delayed or conditioned, City shall furnish Developer with a Release of Construction Covenants for the Project substantially in the form attached hereto as Attachment No. 8. If City determines that the Project is not in substantial conformance with this Agreement, City shall send written notice of each non-conformity to Developer, pursuant to Section 5.15(c).
(b) A Release of Construction Covenants shall be evidence of City’s conclusive determination of satisfactory completion of the Project pursuant to the terms of this Agreement. After the recordation of a Release of Construction Covenants for the Project, any person then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Property shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement regarding construction of the Project, except that such person shall be bound by any reservations, covenants, conditions, restrictions and other interests affecting the Property pursuant to this Agreement.
(c) If City in its reasonable discretion fails or refuses to issue a Release of Construction Covenants, following a written request from Developer, City shall, within fifteen (15) calendar days following City’s receipt of Developer’s written request or within three (3) calendar days after the next regular meeting of the City Council, whichever date occurs later, provide Developer with a written statement setting forth in reasonable detail the reasons for City’s failure or refusal to issue a Release of Construction Covenants.

The statement shall also contain City’s opinion of the action(s) Developer must take to obtain a Release of Construction Covenants from City. If the reason for Developer’s

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failure to complete the Project is confined to the immediate unavailability of specific items or materials for construction or landscaping at a price reasonably acceptable to Developer or other minor building “punch-list” items, City may issue its Release of Construction Covenants upon the posting of a bond or irrevocable standby letter of credit by Developer in a form reasonably acceptable to City in an amount representing the fair value of the work on the Project remaining to be completed, as reasonably determined by City. If City fails to provide such written statement, within the specified time period, Developer shall be deemed, conclusively and without further action of City, to have satisfied the requirements of this Agreement with respect to the Project, as if a Release of Construction Covenants had been issued by City pursuant to this Agreement, and upon Developer’s request, City shall furnish Developer with Release of Construction Covenants for the Project, substantially in the form attached hereto as Attachment No. 8. (d) A Release of Construction Covenants shall not be deemed to constitute a Notice of Completion under Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants, restrictions or conditions contained in the City Grant Deed or any other instruments recorded against the Property or set forth in this Agreement or otherwise. A Release of Construction Covenants is not evidence of the compliance of the Project with any Governmental Requirements. A Release of Construction Covenants shall not evidence the satisfaction of any obligation of Developer to City under this Agreement or otherwise, except Developer’s obligation to construct the Project.

ARTICLE VI

USE AND OPERATION OF THE PROJECT
Section 6.1 Encumbrances and Liens. Prior to the Project Completion Date, Developer shall not record and shall not allow to be recorded against the Property or any portion of the Property any mortgage, trust deed, deed of trust, encumbrance or lien not expressly authorized by this Agreement. Developer shall remove, or shall have removed, any unauthorized lien, encumbrance, mortgage, levy or attachment made or recorded against the Property or any portion of the Property, or shall assure the satisfaction thereof to the satisfaction of City. The covenants of Developer set forth in this Section 6.1 shall only remain in effect until the Project Completion Date; provided, however, that the nondiscrimination covenants set forth in the Grant Deed shall remain in effect in perpetuity.

Section 6.2 Nondiscrimination. In addition to any other nondiscrimination provisions applicable to the Property under federal, state or local law, Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person, or group of persons on any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Developer, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with

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reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, or any part thereof. The foregoing covenants shall run with the land.

All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:

1. In deeds: “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”

2. In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: “That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. The foregoing covenants shall run with the land”

3. In contracts: “There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the subject of this agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”

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Section 6.3 Effect of Covenants. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and City’s successors and assigns, and any successor in interest to the Property, together with any property acquired by Developer pursuant to this Agreement, or any part thereof. The covenants against discrimination shall remain in effect in perpetuity.

Section 6.4 Taxes and Assessments. After the Closing and continuing until the Project Completion Date, Developer shall pay prior to delinquency all real estate taxes and assessments on the Property, so long as Developer retains any ownership interest therein. Developer shall remove or have removed any levy or attachment made on the Property or any part thereof, or assure the satisfaction thereof within a reasonable time.

Notwithstanding the above, Developer shall have the right to contest the validity or amounts of any tax, assessment, or encumbrance available to Developer in respect thereto, and nothing herein shall limit the remedies available to Developer in respect thereto.

Section 6.5 Developer Covenant to Defend this Agreement. Developer acknowledges that City is a “public entity” and/or a “public agency” as defined under applicable California law. Therefore, City must satisfy the requirements of certain California statutes relating to the actions of public entities, including, without limitation, CEQA. Also, as a California municipal corporation, City’s action in approving this Agreement may be subject to proceedings to invalidate this Agreement or mandamus.

Developer assumes the risk of delays and damages that may result to Developer from any third-party legal actions related to City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, including, without limitation, City’s approval of any Project approvals and issuance of any permits required for development of the Project, even in the event that an error, omission or abuse of discretion by City is determined to have occurred. If a third-party files a legal action regarding City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, including, without limitation, City’s approval of any Project approvals and issuance of any permits required for development of the Project, City may terminate this Agreement on thirty (30) days written notice to Developer of City’s intent to terminate this Agreement, referencing this Section 6.5, without any further obligation to perform the terms of this Agreement and without any liability to Developer resulting from such termination, unless Developer unconditionally agrees to indemnify and defend City and City Personnel, with legal counsel acceptable to City, against such third-party legal action, as provided hereinafter in this Section 6.5 Within 30 days of receipt of City’s notice of intent to terminate this Agreement, as provided in the preceding sentence, Developer may in Developer’s sole and absolute discretion offer to defend City, with legal counsel acceptable to City, in the third-party legal action and pay all of the court costs, attorney fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the legal action. At the request of Developer, City shall cooperate with and assist Developer in its defense of any such third-party legal action, provided that City shall not be obligated to incur any expense in connection with such cooperation or assistance.

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The parties expressly agree that if a third-party files a legal action regarding City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, including, without limitation, City’s approval of any Project approvals and issuance of any permits required for development of the Project, Developer may, at any time, elect to terminate this Agreement, referencing this Section 6.5, in which event Developer shall have no further indemnification obligations under this Section 6.5 as of the date of such termination.

ARTICLE VII

RIGHTS OF HOLDERS OF APPROVED SECURITY INTERESTS IN PROPERTY Notwithstanding anything to the contrary in this Agreement, the provisions in this Article VII shall automatically terminate upon the Project Completion Date.

Section 7.1 Holder Not Obligated to Construct Project. The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct, repair, or complete the Project or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the Property to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement.

Section 7.2 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever City may deliver any notice or demand to Developer with respect to any breach or default by Developer in completion of construction of the Project, City shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust authorized by this Agreement who has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by City are concerned) have the right, at its option, but not the obligation, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project, or any portion thereof (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed Developer’s obligations to City by written agreement satisfactory to City. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of this Section 7.2, to a Release of Construction Covenants. It is understood that a holder shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Property (or portion of this Agreement) if and to the extent any such holder has within such thirty (30) day period commenced

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proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default.

Section 7.3 Right of City to Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by Developer prior to the completion of construction of the Project or any part of this Agreement, Developer shall immediately deliver to City a copy of any mortgage holder’s notice of default. If the holder of any mortgage or deed of trust has not exercised its option to construct, City shall have the right but no obligation to cure the default. In such event, City shall be entitled to reimbursement from Developer of all proper costs and expenses incurred by City in curing such default. City shall also be entitled to a lien upon the Property to the extent of such costs and disbursements. Any such lien shall be junior and subordinate to a Loan.

Following the Project Completion Date, City shall have no rights to cure any default under any mortgage or deed of trust encumbering the Property.

Section 7.4 Right of City to Satisfy Other Liens on the Property. After the Close of Escrow and prior to the completion of construction, and after Developer has had written notice and has failed, after a reasonable time, to challenge, cure, or satisfy any other liens or encumbrances on the Property, City shall have the right but no obligation to satisfy any such other liens or encumbrances.

ARTICLE VIII

REPRESENTATIONS AND WARRANTIES OF DEVELOPER
Section 8.1 Representations and Warranties by Developer. Developer makes the following representations, covenants and warranties, which shall be deemed to have been given on the Effective Date and on each date thereafter until the Project Completion Date, and acknowledges that the execution of this Agreement by City is made in material reliance by City on such covenants, representations and warranties of Developer:
(a) Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement, such that this Agreement is valid and enforceable against Developer in accordance with its terms and each instrument to be executed by Developer pursuant to or in connection with this Agreement will, when executed, be valid and enforceable against Developer in accordance with its terms.

No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution, delivery or performance of this Agreement by Developer.
(b) If Developer becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by Developer under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based upon Developer’s knowledge and/or belief as of a certain date, Developer will give immediate written notice of such changed fact or circumstance to City.

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ARTICLE IX

DEFAULTS, REMEDIES AND TERMINATION
Section 9.1 Defaults - General.
(a) Subject to any extensions of time provided for in this Agreement, failure or delay by either Party to perform any term or provision of this Agreement within thirty (30) calendar days after receipt of written notice from the injured Party specifying such default, or if such default cannot reasonably be cured within thirty (30) days, to commence to cure, correct or remedy such default and to diligently and continuously prosecute such cure, correction or remedy to completion, shall constitute a default under this Agreement.
(b) Delay in giving such written notice shall not constitute a waiver of any default nor shall it change the time of default.
(c) Any failure or delays by either Party in asserting any of their rights and/or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either Party in asserting any of their rights and/or remedies shall not deprive either Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies.

Section 9.2 Events of Default. In addition to other acts or omissions of Developer that may constitute a default or breach of this Agreement, the occurrence of any of the following specific events, prior to the issuance of a Release of Construction Covenants for the Project, shall constitute an “Event of Default” under this Agreement and shall not be subject to the provisions of Section 9.1:
(a) Any default by Developer of any of the non-monetary covenants and conditions of this Agreement that is not cured within thirty (30) days following written notice of the default to Developer from City or the expiration of an applicable shorter cure period set forth in this Agreement, or if such default cannot reasonably be cured within the applicable cure period, to commence to cure, correct or remedy such and to diligently and continuously prosecute such cure, correction or remedy to completion. (b) Any representation, warranty or disclosure made to City by Developer regarding this Agreement or the Project is at the time made or later becomes materially false or misleading.
(c) Developer fails to make any payment or deposit of funds required under this Agreement, or to pay any other charge set forth in this Agreement, following seven (7) days’ written notice to Developer from City of such failure. (d) Any material deviation in the work of improvement of the Project from the approved Scope of Development, other than Minor Field Changes, without the prior written approval of City, which approval shall not be unreasonably withheld or delayed, or the appearance, during the course of construction, of materially defective workmanship

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or materials and such material defects are not corrected or substantially corrected, within thirty (30) days after receipt of written notice thereof from City to Developer, subject to a time extension as required in order to address any subcontractor disputes, design a “fix” for the defects and to allow the same to be so repaired. (e) The construction of the Project is delayed or suspended, or the development of the Project does not proceed with reasonable due diligence, pursuant to the Schedule of Performance, subject to the occurrence of Unavoidable Delays. (f) Developer sells, Transfers, hypothecates, encumbers or assigns its interest in this Agreement, the Property or any portion thereof, whether voluntarily or involuntarily or by operation of law, in violation of the terms and conditions of this Agreement; it being agreed that Permitted Transfers shall not be in violation hereof.

Section 9.3 Liquidated Damages to City.
(a) UPON THE OCCURRENCE, AFTER DEVELOPER’S DELIVERY

OF THE DUE DILIGENCE INVESTIGATION CONCLUSION NOTICE APPROVING THE

PROPERTY AND PRIOR TO THE CLOSE OF ESCROW, OF AN EVENT OF DEFAULT,

OR OTHER MATERIAL DEFAULT OF DEVELOPER UNDER THIS AGREEMENT THAT

IS NOT CURED WITHIN THE APPLICABLE CURE PERIOD SET FORTH IN THIS

AGREEMENT, CITY MAY TERMINATE THIS AGREEMENT AND CANCEL THE ESCROW, PURSUANT TO SECTION 4.10, WITHOUT ANY LIABILITY OF CITY TO DEVELOPER OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. CITY AND

DEVELOPER ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND

IMPRACTICAL, IF NOT IMPOSSIBLE, TO ASCERTAIN THE AMOUNT OF DAMAGES

THAT WOULD BE SUFFERED BY CITY, IN THE EVENT OF A TERMINATION OF THIS

AGREEMENT DUE TO THE OCCURRENCE, PRIOR TO THE CLOSE OF ESCROW,

OF AN EVENT OF DEFAULT, OR OTHER MATERIAL DEFAULT OF DEVELOPER

UNDER THIS AGREEMENT THAT IS NOT CURED WITHIN THE APPLICABLE CURE PERIOD SET FORTH IN THIS AGREEMENT. HAVING MADE DILIGENT BUT

UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES CITY

WOULD SUFFER, IN THE EVENT OF A TERMINATION OF THIS AGREEMENT DUE

TO THE OCCURRENCE, PRIOR TO THE CLOSE OF ESCROW, OF AN EVENT OF

DEFAULT, OR OTHER MATERIAL DEFAULT OF DEVELOPER UNDER THIS

AGREEMENT THAT IS NOT CURED WITHIN THE APPLICABLE CURE PERIOD SET

FORTH IN THIS AGREEMENT, CITY AND DEVELOPER AGREE THAT A REASONABLE ESTIMATE OF CITY’S DAMAGES IN SUCH EVENT IS THE EARNEST MONEY DEPOSIT OF FORTY-THREE THOUSAND EIGHT HUNDRED NINETY-THREE DOLLARS ($43,893). THEREFORE, UPON THE TERMINATION OF THIS

AGREEMENT BY CITY DUE TO THE OCCURRENCE, PRIOR TO THE CLOSE OF

ESCROW, OF AN EVENT OF DEFAULT, OR OTHER MATERIAL DEFAULT OF

DEVELOPER UNDER THIS AGREEMENT THAT IS NOT CURED WITHIN THE

APPLICABLE CURE PERIOD SET FORTH IN THIS AGREEMENT, ESCROW HOLDER

SHALL IMMEDIATELY CANCEL THE ESCROW AND CITY SHALL BE ENTITLED TO RETAIN THE EARNEST MONEY DEPOSIT. RETENTION OF THE EARNEST MONEY DEPOSIT SHALL BE CITY’S SOLE AND EXCLUSIVE REMEDY UPON THE

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OCCURRENCE, PRIOR TO THE CLOSE OF ESCROW, OF AN EVENT OF DEFAULT

OR OTHER MATERIAL DEFAULT OF DEVELOPER UNDER THIS AGREEMENT THAT

IS NOT CURED WITHIN THE APPLICABLE CURE PERIOD SET FORTH IN THIS AGREEMENT.
(b) CITY ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE
SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 9.3, WHICH CIVIL CODE SECTION READS AS FOLLOWS:

A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
(c) BY INITIALING BELOW, CITY KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 9.3:
________________________
CITY’S INITIALS
Section 9.4 Developer’s Limitation on Recovery of Damages Prior to Close of Escrow.
(a) IN THE EVENT OF ANY MATERIAL BREACH OF THIS
AGREEMENT BY CITY PRIOR TO THE CLOSE OF ESCROW, DEVELOPER’S REMEDIES SHALL BE LIMITED TO A CHOICE BETWEEN (1) SPECIFIC PERFORMANCE OR (2) TERMINATION OF THIS AGREEMENT AND RECOVERY OF

THE EARNEST MONEY DEPOSIT AND ACTUAL OUT OF POCKET COSTS

INCURRED BY DEVELOPER IN CONNECTION WITH THIS AGREEMENT IN AN

AMOUNT UP TO, BUT NOT EXCEEDING ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($125,000). DEVELOPER WAIVES ANY RIGHT TO RECOVER ANY OTHER

SUMS FROM CITY ARISING FROM A MATERIAL BREACH OF THIS AGREEMENT BY CITY PRIOR TO THE CLOSE OF ESCROW. DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 9.4, WHICH CIVIL CODE SECTION READS AS FOLLOWS:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR OR RELEASING PARTY DOES

NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER

FAVOR AT THE TIME OF EXECUTING THE RELEASE AND

THAT, IF KNOWN BY HIM OR HER, WOULD HAVE

MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.

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(b) BY INITIALING BELOW, DEVELOPER KNOWINGLY AND
VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 9.4:

DEVELOPER’S INITIALS
Section 9.5 Legal Actions.
(a) In addition to any other rights or remedies and subject to the restrictions set forth in this Agreement, following the Close of Escrow, either Party may institute an action at law or equity to seek specific performance of the terms of this Agreement (excluding a right by the City to compel Developer to proceed with the Closing), or to cure, correct or remedy any default, to recover damages for any default (subject to the restriction on Developer’s rights to recover monetary damages against City set forth in the final clause of this sentence), or to obtain any other remedy consistent with the purpose of this Agreement; provided, however, that notwithstanding anything in the foregoing to the contrary, with the exception of Developer’s rights pursuant to Section 9.4 above, in no event shall Developer be entitled to obtain monetary damages of any kind from City, including but not limited to damages for economic loss, lost profits, or any other economic or consequential damages of any kind. Such legal actions must be instituted in the Superior Court of the State of California in and for the County of San Bernardino, California, in any other appropriate court within the County of San Bernardino, California, or in the United States District Court for the Central District of California. (b) The laws of the State of California shall govern the interpretation and enforcement of this Agreement. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the City of Twentynine Palms, County of San Bernardino, California.

Section 9.6 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties as set forth in this Section 9.6 are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

Section 9.7 Attorneys’ Fees. If either Party to this Agreement is required to initiate or defend litigation in any way connected with this Agreement, the prevailing Party in such litigation, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. If either Party to this Agreement is required to initiate or defend litigation with a third party because of the violation of any term or provision of this Agreement by the other Party, then the Party so litigating shall be entitled to reasonable attorneys’ fees from the other Party to this Agreement.

Attorneys’ fees shall include attorney’s fees on any appeal, and in addition a Party entitled to attorney’s fees shall be entitled to all other reasonable costs for investigating such action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred with respect to such litigation. All such fees shall be deemed to

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have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

Section 9.8 Developer Indemnification of City. In addition to any other specific indemnification or defense obligations of Developer set forth in this Agreement, Developer agrees to indemnify, defend (upon written request by City and with counsel designated by Developer that is reasonably acceptable to City) and hold harmless City and City Personnel from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, including, without limitation, damages to property and injuries to persons, including accidental death, costs and expenses, including reasonable attorney’s fees (but excluding attorney’s fees of counsel retained by City), expert fees, and investigation costs, of whatever kind or nature (collectively, “Claims”), that are in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, through any act, omission, fault or negligence, whether active or passive, of Developer or Developer’s officers, agents, employees, independent contractors, subcontractors of any tier, or authorized representatives, relating in any manner to this Agreement, any work to be performed by Developer related to this Agreement, the Project, or any authority or obligation exercised or undertaken by Developer under this Agreement, except to the extent any such Claims are caused by the willful misconduct or active negligence of any of City and City Personnel. The obligations under this Section 9.8 shall be subject to any rights of Developer under Sections 5.11(c) and 6.5.

ARTICLE X

GENERAL PROVISIONS
Section 10.1 Notices, Demands and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper, if in writing and dispatched by messenger for immediate personal delivery, by a nationally recognized overnight courier service or by registered or certified United States mail, postage prepaid, return receipt requested, to the principal office of City or Developer, as applicable, as designated in subsection (b). Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time to time designate. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service or three (3) calendar days after it is placed in the United States mail, as provided in this Section 10.1(a).
(b) The following are the authorized addresses for the submission of notices, demands or communications to the Parties:

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To the Developer:

Greens Development, Inc.
8815 Research Drive
Irvine, California 92618
Attention: Sharad J. Kadakia
With copy to:

Newmeyer & Dillion, LLP
895 Dove Street, 5
th Fl.

Newport Beach, CA 92660
Attention: Jon J. Janecek, Esq.

To the City: City of Twentynine Palms
6136 Adobe Rd.

Twentynine Palms, CA 92277
Attention: City Manager
With copies to: Rutan & Tucker, LLP
18575 Jamboree Road, 9
th Floor
Irvine, CA 92612
Attention: A. Patrick Muñoz, Esq.

Section 10.2 Conflict of Interest. No member, official or employee of City having any conflict of interest, direct or indirect, related to this Agreement or the development of the Project shall participate in any decision relating to this Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest.

Section 10.3 Warranty Against Payment of Consideration for Agreement.

Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section 10.3, shall not include persons to whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by Developer.

Section 10.4 Non-liability of City Officials and Employees. No member, official or employee of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City under this Agreement or for any amount that may become due to Developer or to its successor, or on any obligations under the terms of this Agreement, except as may arise from the gross negligence or willful acts of such member, official or employee.

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Section 10.5 Unavoidable Delay; Extension of Time of Performance. (a) Subject to specific provisions of this Agreement, performance by either Party under this Agreement shall not be deemed to be in default, or considered to be a default, where any such delays or defaults are due to an Unavoidable Delay that is not attributable to the fault of the Party claiming an extension of time to perform. An extension of time for any Unavoidable Delay shall be for the period of the Unavoidable Delay and shall commence to run from the date of occurrence of the Unavoidable Delay, but only if the Party asserting the existence of the Unavoidable Delay has first provided the other Party with written notice of the occurrence of the Unavoidable Delay, within ten (10) days of the commencement of such asserted Unavoidable Delay. (b) The Parties expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of either of them that may have provided a basis for entering into this Agreement and that occur at any time after the execution of this Agreement, do not constitute an Unavoidable Delay and do not provide any Party with grounds for asserting the existence of an Unavoidable Delay in the performance of any covenant or undertaking arising under this Agreement. Each Party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such Party under this Agreement.

Section 10.6 Real Estate Commissions. City shall pay a commission to the selling realtor, Bob Armstrong. Developer shall pay any fees or commissions or other expenses related to its retention or employment of real estate brokers, agents or other professionals.

Section 10.7 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

Section 10.8 Entire Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Property and the Project.

Section 10.9 No Merger. None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with any deed conveying title to the Property, and this Agreement shall continue in full force and effect before and after such conveyances.

Section 10.10 Waivers. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of both City and Developer.

Section 10.11 Survival of Indemnity Obligations. All general and specific indemnity and defense obligations of the Parties set forth in this Agreement shall survive

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the expiration or termination of this Agreement and the execution or recordation of the City Grant Deed and/or City’s issuance of a Release of Construction Covenants for the Project for a period of three (3) years.

Section 10.12 City Approvals and Actions. City shall maintain authority of this Agreement and the authority to implement this Agreement through the City Manager (or his or her duly authorized representative). The City Manager shall have the authority to make approvals, issue interpretations, execute documents, waive provisions, and/or enter into certain amendments of this Agreement on behalf of City so long as such actions do not materially or substantially change the basic business terms hereof, change the uses or development permitted on the Property, decrease the revenues to be received by City hereunder, or add to the costs incurred or to be incurred by City as specified herein, and such approvals, interpretations, waivers and/or amendments may include extensions of time to perform as set forth in Section 5.8. All other material and/or substantive interpretations, waivers, or amendments shall require the consideration, action and written consent of the City Council.

Section 10.13 Developer Termination. In the event that prior to the Close of Escrow all or a portion of the Property is condemned or there is a written threat of condemnation issued by a governmental authority or there is a spill or release of any Hazardous Substances not caused by Developer upon the Property, then Developer shall have the right, but not the obligation and upon written notice to City, to terminate the Agreement and be refunded the Earnest Money Deposit.

Section 10.14 Possession. Upon the Close of Escrow, City shall deliver possession of the Property to Developer (or its assignee) free and clear of all rights or claims to possession and use.

Section 10.15 Termination. Except where expressly set forth herein, Developer’s obligations hereunder shall terminate upon the issuance of the Release of Construction Covenants.

Section 10.16 Counterparts. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on both Parties hereto, notwithstanding that both Parties are not signatories to the same counterpart. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, City and Developer have executed this Purchase, Sale, and Development Agreement by and through the signatures of their duly authorized representative(s) set forth below:
“City”

CITY OF TWENTYNINE PALMS,
a California municipal corporation
By:

Frank Luckino, City Manager
ATTEST:

Cindy Villescas, City Clerk
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
A. Patrick Muñoz, City Attorney
“Developer”:

GREENS DEVELOPMENT, INC.,
a California corporation
By:

By: _____________________________

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ATTACHMENT NO. 1

DEPICTION OF PROPERTY
(PARCEL 2)

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ATTACHMENT NO. 2

SCHEDULE OF PERFORMANCE
Task Time for Performance

1. Developer and City open the Escrow. Within 5 days after Effective Date

2. City staff uses reasonable efforts to cause City’s
Downtown Specific Plan to be approved by the
Twentynine Palms City Council.

Anticipated by March 31, 2022.

3. Developer submits application(s) to City staff for
Entitlements, and following said initial submittal,
Developer promptly revises application materials
as necessary to address comments from City
staff.

With respect to Developer’s initial
submittal, within 120 days after
expiration of applicable appeal
period for City’s Downtown
Specific Plan, with no appeal
having been filed.

4. City schedules Developer’s Entitlement
application for review and consideration by the
Twentynine Palms Planning Commission.

Within 30 days after City staff
determines Developer’s
application is complete.

5. Developer submits building plans and
construction drawings for Project to City staff,
and following said initial submittal, Developer
promptly revises building plans and construction
drawings as necessary to address comments
from City staff and obtain City staff approval.

With respect to Developer’s initial
submittal, within 120 days after
expiration of applicable appeal
periods for Entitlements, following
Planning Commission approval,
with no appeals having been filed.

6. All of City’s and Developer’s conditions to
the Close of Escrow are satisfied, or
waived by the appropriate party, and
Escrow Holder closes the Escrow.

By the Outside Closing Date
The foregoing Schedule of Performance is subject to adjustment for Unavoidable Delays.

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ATTACHMENT NO. 3

SCOPE OF DEVELOPMENT
The Project consists of the development on the Property of a 3-story, 75,000 square foot upper midscale Hilton, or Marriot hotel facility, including 95 guest rooms and hotel amenities, including, without limitation, a pool, treat shop, business center, guest laundry facilities, on-site parking, drought-tolerant, desert friendly landscaping, and an outdoor seating area for guests to experience the Project Phoenix Paseo’s outdoor festivities. The lobby of the hotel will flow freely between the parking and the Paseo patio, to create a pedestrian friendly atmosphere that would invite the hotel guests to view the Project Phoenix stage. The architectural style, including materials and colors, of the hotel are complimentary to the Cultural and Community Center. The Project also includes a fountain entry feature, and development of all required on-site and off-site infrastructure, including public street improvements (including trees) along Tamarisk Avenue to the end of the property line of the Property.

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ATTACHMENT NO. 4

SITE PLAN

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ATTACHMENT NO. 5

FORM OF CITY GRANT DEED
[SEE ATTACHED]

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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Twentynine Palms
6136 Adobe Rd.

Twentynine Palms, CA 92277
Attention: City Manager
(Space above for Recorder’s Use Only)
Documentary transfer tax $_____________
Computed on the consideration of the full value of property conveyed [Exempt from recorder’s fee pursuant to Government
Code Section 27383]
The undersigned declares exemption under the
following:

Exempt from fee per Government Code
Section 27388.1 (a)(2).1 (a)(2);
recorded concurrently in connection with a transfer
subject to the imposition of documentary transfer tax

GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, the CITY OF TWENTYNINE PALMS, a California municipal corporation (the “City”), hereby grants to GREENS DEVELOPMENT, INC., a California corporation (the “Grantee”), the real property legally described in Exhibit “A” attached hereto and made a part hereof (the “Property”), subject to all matters of record and subject to the following:

1. Nondiscrimination Covenants. Grantee, on behalf of itself and its successors and assigns to all or any portion of the Property, covenants and agrees as follows:

A. Nondiscrimination Covenants. That there shall be no discrimination against or segregation of any person, or group of persons on any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,

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sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Grantee, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, or any part thereof. The foregoing covenants shall run with the land.

B. Nondiscrimination Clauses in Agreements. Grantee agrees for itself and any successor in interest that Grantee shall refrain from restricting the rental, sale, or lease of any portion of the Property, or contracts relating to the Property, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national origin of any person.

All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
i. In deeds: “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
ii. In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: “That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.”
iii. In contracts relating to the sale, transfer, or leasing of the land or any interest therein: “There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and

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Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the subject of this agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
The foregoing nondiscrimination covenants shall remain in effect in perpetuity.

IN WITNESS WHEREOF, the City has caused this Grant Deed to be executed by its authorized representative(s) on this __ day of _________, 20__.

City:

CITY OF TWENTYNINE PALMS,
a California municipal corporation
By:

Frank Luckino, City Manager
By execution below, Grantee accepts and agrees to be bound by all of the covenants, restrictions, and obligations set forth in this Grant Deed.

Grantee:

GREENS DEVELOPMENT, INC.,
a California corporation
By:___________________________

By:___________________________

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

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

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature (Seal)

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature (Seal)

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EXHIBIT “A”

LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Twentynine Palms, County of San Bernardino, State of California, described as follows:

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ATTACHMENT NO. 6

PROJECT BUDGET
[SEE ATTACHED]

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ATTACHMENT NO. 7

FORM OF MEMORANDUM OF AGREEMENT
[SEE ATTACHED]

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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

City of Twentynine Palms
6136 Adobe Road
Twentynine Palms, CA 92277
Attention: City Manager
(Space above for Recorder’s Use Only)
[Recordation of this Document
is Exempt From Fees Payable to the
Recorder
Under Government Code Section 27383]

CITY OF TWENTYNINE PALMS

MEMORANDUM OF AGREEMENT
(PURCHASE, SALE, AND DEVELOPMENT AGREEMENT)
This MEMORANDUM OF AGREEMENT (PURCHASE, SALE, AND
DEVELOPMENT AGREEMENT) (“Memorandum”) is entered into as of this ___ day of _________, 20__, by and between GREENS DEVELOPMENT, INC., a California corporation (the “Developer”) and the CITY OF TWENTYNINE PALMS, a California municipal corporation (the “City”).

This Memorandum is made with reference to the following:

1. Developer is the owner in fee of that certain real property located in the City of Twentynine Palms, County of San Bernardino, State of California, more particularly described in the legal description attached hereto as Exhibit “A” and incorporated herein by this reference (“Property”).

2. On or about __________, 2022, City and Developer entered into that certain Purchase, Sale, and Development Agreement (the “PSDA”) which provides for, among other things, Developer to purchase the Property from City and to develop thereon a hotel development, and all infrastructure necessary to serve the development, all in accordance with a schedule set forth in the PSDA.

3. The PSDA provides for City and Developer to enter into this Memorandum and to record the same in the Official Records of San Bernardino County, California, to provide notice to all persons of the existence of said PSDA, which PSDA is binding on Developer and Developer’s successors-in-interest as to the Property.

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4. A copy of the PSDA is on file with the City Clerk of City and is available for inspection and copying by interested persons as a public record of City during the regular business hours of City.

5. This Memorandum may be executed in several counterparts, and all so executed shall constitute one agreement binding on both parties hereto, notwithstanding that both parties are not signatories to the original or the same counterpart.

THIS MEMORANDUM OF AGREEMENT is dated as of _________, 20__, and has been executed on behalf of Developer and City by and through the signatures of their authorized representative(s) set forth below. This Memorandum of Agreement may be executed in counterparts and when fully executed each counterpart shall be deemed to be one original instrument.
“City”
CITY OF TWENTYNINE PALMS, a
California municipal corporation
By:

Frank Luckino, City Manager
ATTEST:

Cindy Villescas, City Clerk
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
A. Patrick Muñoz, City Attorney
“Developer”
GREENS DEVELOPMENT, INC., a
California corporation
By:

By:

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

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

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature (Seal)

2545/014122-0001
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature (Seal)

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Exhibit A

LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Twentynine Palms, County of San Bernardino, State of California, described as follows:

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ATTACHMENT NO. 8

FORM OF RELEASE OF CONSTRUCTION COVENANTS
[SEE ATTACHED]

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RECORDING REQUESTED BY:

AND WHEN RECORDED MAIL TO:

Greens Development, Inc.
_____________________
_____________________
(Space above for Recorder’s Use Only)

CITY OF TWENTYNINE PALMS

RELEASE OF CONSTRUCTION COVENANTS
A. Greens Development, Inc., a California corporation (“Developer”), is the owner of fee title to that certain real property legally described in Exhibit “A” attached hereto and incorporated herein by reference (the “Site”); and B. By a Purchase, Sale, and Development Agreement (hereinafter referred to as the “Agreement”) dated ________, 20__, by and between Developer and the City of Twentynine Palms, a California municipal corporation (“City”), the Developer has redeveloped the Site in accordance with the Agreement; and C. Pursuant to Section 5.15 of the Agreement, promptly after Developer’s completion of the “Project” (as that term is defined in the Agreement) upon the Site, and upon request by Developer, City shall furnish Developer with a Release of Construction Covenants in such form as to permit it to be recorded in the Official Records of the County of San Bernardino; and
D. The issuance by City of the Release of Construction Covenants shall be conclusive evidence that Developer has complied with the terms of the Agreement pertaining to the development of the Site; and
E. Developer has requested that City furnish Developer with the Release of Construction Covenants; and
F. City has conclusively determined that the development of the Site has been satisfactorily completed as required by the Agreement.

NOW, THEREFORE:

1. As provided in the Agreement, City does hereby certify that development of the Site has been fully and satisfactorily performed and completed, and that such development is in full compliance with said Agreement.

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2. This Release of Construction Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance construction work on the Site, or any part thereof.

3. This Release of Construction Covenants is not a Notice of Completion as referred to in California Civil Code Section 3093.

4. Except as stated herein, nothing contained in this instrument shall modify in any way any other provisions of the Agreement or any other provisions of any agreements or documents referenced therein.

IN WITNESS WHEREOF, City has executed this Release of Construction Covenants as of this ____ day of __________________, 20__.

Frank Luckino, City Manager
ATTEST:

Cindy Villescas, City Clerk

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

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

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

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

WITNESS my hand and official seal.

Signature (Seal)

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EXHIBIT “A”

LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Twentynine Palms, County of San Bernardino, State of California, described as follows:

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ATTACHMENT NO. 9

FORM OF OPTION AGREEMENT
[SEE ATTACHED]

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FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Twentynine Palms
6136 Adobe Rd.

Twentynine Palms, CA 92277
Attention: City Clerk
(SPACE ABOVE THIS LINE FOR RECORDING USE)
(EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383)

OPTION AGREEMENT
THIS OPTION AGREEMENT (“Option Agreement”) is made this ___ day of ________, ___ (the “Effective Date”), by and between CITY OF TWENTYNINE PALMS, a California municipal corporation (“City”), and GREENS DEVELOPMENT, INC., a California corporation (“Developer”).

R E C I T A L S
A. Developer and City have entered into a Purchase, Sale, and Development Agreement dated ____________________, 2022 (“PSDA”), pursuant to which City conveyed to Developer that certain real property located at ___________________, in the City of Twentynine Palms, County of San Bernardino, State of California, commonly known as APN Nos. ______________, 0617-112-03, and 0617-112-03 (collectively, the “Property”). Except as otherwise defined herein, all defined terms used herein shall have the same meaning as set forth in the PSDA unless otherwise stated. The Property is legally described in Exhibit “A,” which is attached hereto and incorporated herein by this reference.

B. Pursuant to the PSDA, Developer has agreed to construct on the Property a dual-branded hotel project with approximately ninety-five hotel rooms, consisting of a Hampton Inn and Home 2 Suites hotel components, and all required and/or associated on-site and off-site improvements, as evidenced by City’s issuance of a certificate of occupancy (the “Project”).

C. The Project shall be constructed on the Property in accordance with all of the requirements set forth in the PSDA.

D. As a condition to the City’s conveyance of the Property to Developer, Developer was required to grant to City an option to repurchase the Property from Developer, if Developer fails to complete construction of the Project within six (6) years following Developer’s acquisition of the Property from City.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating the above recitals and

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all of the terms and conditions contained in the PSDA, Developer and City hereby agree as follows:

1. City’s Repurchase Option
Developer hereby grants to City an exclusive option to repurchase the Property (“Repurchase Option”) if Developer fails to complete the Project by the seventh (7th) anniversary of the date this Option Agreement is recorded in the Official Records of the County of San Bernardino (the “Completion Deadline”). In the event of Developer’s failure to complete construction of the Project by the Completion Deadline, City shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of one hundred twenty (120) days following the Completion Deadline (“Repurchase Option Period”). Failure of the City to timely exercise the Repurchase Option shall be deemed to constitute a waiver and release of the Repurchase Option. a. Exercise of Option
City shall exercise the Repurchase Option by giving written notice to Developer, in accordance with Section 3 of this Option Agreement, prior to the expiration of the Repurchase Option Period.
b. Determination of Repurchase Price - Repurchase Option II City’s repurchase price for the Property (“Repurchase Option Repurchase Price”), shall be the purchase price Developer paid to City for the Property pursuant to the PSDA, which was Four Hundred Thirty-Eight Thousand Nine Hundred Twenty-Seven Dollars and Twelve Cents ($438,927). In the event that there are any “Valid Liens” (as that term is defined below) at the time that the Repurchase Option is exercised, Developer and City agree that the Repurchase Option Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same; provided, however, that to the extent the outstanding balance due under such Valid Lien exceeds the purchase price Developer paid to City for the Property as referenced above, the Repurchase Option Repurchase Price shall be automatically increased to equal the outstanding balance due under the Valid Lien, and the entire Repurchase Option Repurchase Price shall be paid to the holder of the Valid Lien at the “Close of Escrow” (as defined below). As used in this Agreement, the term “Valid Lien” shall mean and refer to an outstanding mortgage or deed of trust by an Institutional Lender.

2. Additional Terms Applicable to the Repurchase Options The following additional terms shall apply to the Repurchase Option:
a. Successors and Assigns. The Repurchase Option created hereby shall be irrevocable by Developer and shall be binding upon the successors and assigns of Developer and on the Property.

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b. No City Obligation. Notwithstanding any covenant, term, or provision in this Section 2 to the contrary, City shall not be obligated to exercise the Repurchase Option.
c. Termination of Option Agreement. In the event Developer completes construction of the Project, as evidenced by City’s issuance of a Release of Construction Covenants for the Project and City has not exercised the Repurchase Option, City shall execute and record a termination of this Option Agreement within fifteen (15) business days after City’s issuance of the Release of Construction Covenants for the Project. d. City’s Investigation of Property. City shall have ninety (90) days after the Completion Deadline to enter upon the Property to conduct any tests, inspections, investigations, or studies of the condition of the Property (or applicable portion thereof).

Developer shall permit City access to the Property for such purposes. City’s obligation to close “Escrow” (as defined below) shall be subject to City’s approval of any environmental and other site testing conducted by City in City’s reasonable discretion.

City shall indemnify, defend, and hold harmless Developer and its officers, directors, shareholders, employees, agents, and representatives from and against all claims, liabilities, or damages, and including expert witness fees and reasonable attorney’s fees and costs, to the extent arising out of the gross negligence or willful misconduct of City in carrying out any such testing, inspection, or investigatory activity on the Property (or applicable portion thereof). The City shall maintain and deliver to Developer evidence of City’s insurance, in a form and amount reasonably satisfactory to Developer prior to any entry onto the Property.
e. Escrow Provisions.
i) Within five (5) business days after City has exercised the Repurchase Option, or as soon thereafter as reasonably practicable, an escrow shall be opened (“Escrow”) with an escrow company selected by City for the reconveyance of the Property to City (“Escrow Holder”). Escrow shall be deemed opened on the date that a fully executed copy of this Option Agreement and a notice of exercise of option prepared by City are delivered to Escrow Holder (“Opening of Escrow”). Escrow Holder shall notify Developer and City in writing of the date of the Opening of Escrow promptly following the opening of the Escrow.
ii) Escrow shall close on or before the date that is ninety (90) days after the Opening of Escrow (“Close of Escrow” or “Closing Date”). The terms “Close of Escrow” and “Closing Date” shall mean the date the grant deed conveying fee title to City (“City Grant Deed”) is recorded in the Office of the County Recorder of the County of San Bernardino, State of California. Possession of the Property, or portion thereof, shall be delivered to City at the Close of Escrow. Failure of the City to timely close as required hereunder shall be deemed a waiver of the City's rights under this Option Agreement.
iii) This Option Agreement, together with any standard
instructions of Escrow Holder, shall constitute the joint escrow instructions of Developer

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and City to Escrow Holder as well as an agreement between Developer and City. In the event of any conflict between the provisions of this Option Agreement and Escrow Holder’s standard instructions, this Option Agreement shall prevail. iv) The Escrow shall be subject to City’s approval of a then-current preliminary title report. Subject to the City's payment of the Repurchase Option Repurchase Price, as determined pursuant to Section 1(b), any monetary lien(s) or encumbrance(s) shown on such preliminary title report that is (are) created concurrent with or after the close of escrow that conveyed the Property from City to Developer shall be removed by Developer at its sole expense prior to or concurrently with the Close of Escrow pursuant to this Section 2(e) unless such exception(s) is (are) accepted by City in its sole discretion; provided, however, that City shall accept the following exceptions to title: (i) current taxes not yet delinquent, (ii) matters affecting title existing on the date of recordation of the Grant Deed to the Property (in the form of Attachment No. 5 to the PSDA); (iii) any easements or similar documents recorded as part of the development of the Project; and (iv) matters shown as printed exceptions in the standard form ALTA policy of title insurance. In the event the Property is encumbered by a mortgage or deed of trust, City shall be permitted to unilaterally instruct Escrow Holder to satisfy the indebtedness secured thereby out of the proceeds payable to Developer through the foregoing Escrow. Any additional amount necessary to satisfy such indebtedness shall be paid by City.
v) On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, City shall deposit in Escrow (i) the Repurchase Option Repurchase Price; (ii) the portion of the title insurance premium attributable to any extra or extended coverages, or any additional charge resulting from City’s request that the amount of insurance be higher than the Repurchase Option Repurchase Price; and (iii) any and all additional instruments or other documents required from City (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Property, or applicable portion thereof, to City. On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Developer shall deposit in Escrow (a) the City Grant Deed, executed and acknowledged; and (b) any and all additional instruments or other documents required from Developer (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Property, or applicable portion thereof, to City. City shall be required to pay for the escrow fees and any documentary tax stamps, recording fees, and for an ALTA standard form owner’s policy of title insurance in the amount of the Repurchase Option Repurchase Price, showing title vested in City free and clear of all liens and encumbrances except those permitted by paragraph iv) above (the “Title Policy”). City’s receipt of the Title Policy shall be a condition to the Close of Escrow. Any other costs and expenses shall be allocated between the parties in the manner customary for a commercial property conveyance in San Bernardino County.
vi) If, on or before the Closing Date, Escrow Holder has received all of the documents and funds listed in paragraph (v) above, and Escrow Holder is in a position to cause the Title Policy to be issued to City, and provided City has approved of the condition of the Property, or applicable portion thereof, Escrow Holder shall close the