2006 12 05 CCe4 4 44tha
City Council agendas are
available on the City's web page
@ www.la-quinta.org
CITY COUNCIL
AGENDA
CITY COUNCIL CHAMBERS
78-495 Calle Tampico
La Quinta, California 92253
Regular Meeting
TUESDAY, DECEMBER 5, 2006 — 3:00 P.M.
Beginning Resolution No. 2006-122
Ordinance No. 434
CALL TO ORDER
Roll Call:
Council Members: Henderson, Kirk, Osborne, Sniff, and Mayor Adolph
PUBLIC COMMENT
At this time, members of the public may address the City Council on any matter
not listed on the agenda. Please complete a "request to speak" form and limit your
comments to three minutes.
CLOSED SESSION - None
RECONVENE AT 4:00 P.M.
PLEDGE OF ALLEGIANCE
PUBLIC COMMENT
At this time members of the public may address the City Council on any matter not
listed on the agenda. Please complete a "request to speak" form and limit your
comments to three minutes.
GU
City Council Agenda 1 December 5, 2006
CONFIRMATION OF AGENDA
PRESENTATIONS - NONE
BUSINESS SESSION
1. CONSIDERATION OF ADOPTION OF A RESOLUTION CERTIFYING THE
OFFICIAL CANVASS OF ELECTION RETURNS FOR THE GENERAL
MUNICIPAL ELECTION HELD NOVEMBER 7, 2006.
A. RESOLUTION ACTION
B. ADMINISTER OATH OF AFFIRMATION TO NEWLY ELECTED
OFFICIALS
WRITTEN COMMUNICATIONS
1. WRITTEN CORRESPONDENCE FROM DESERT SANDS UNIFIED SCHOOL
DISTRICT, DATED NOVEMBER 13, 2006, REQUESTING A CONTRIBUTION
TO THE PARTNERSHIP IN EDUCATION FUND
APPROVAL OF MINUTES
1 . APPROVAL OF MINUTES OF NOVEMBER 15, 2006.
2. APPROVAL OF MINUTES OF NOVEMBER 21, 2006.
CONSENT CALENDAR
NOTE: Consent Calendar items are considered to be routine in nature and will be
approved by one motion.
1. APPROVAL OF DEMAND REGISTER DATED DECEMBER 5, 2006.
2. ADOPTION OF A RESOLUTION ACCEPTING A DONATION FROM NEW
HORIZON MORTGAGE CONCEPTS.
3. ACCEPTANCE OF ON -SITE IMPROVEMENTS ASSOCIATED WITH PARCEL
MAP 32683-3, WASHINGTON PARK RETAIL CENTER, WASHINGTON III,
LTD.
4. APPROVAL OF CONTRACT CHANGE ORDER NOS. 9-15 FOR EISENHOWER
DRIVE BRIDGE AND DRAINAGE IMPROVEMENTS, PROJECT NO. 2001-06.
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City Council Agenda 2 December 5, 2006
5. APPROVAL OF AGENCY -FEDERAL MASTER AGREEMENT NUMBER
08-5433R AND PROGRAM SUPPLEMENTAL AGREEMENT NUMBER 006-N
FOR FEDERAL FUNDING 'FORWARD THE AVENUE 54 PAVEMENT
REHABILITATION IMPROVEMENTS, PROJECT NO. 2005-11 .
6. ACCEPTANCE OF ON -SITE IMPROVEMENTS ASSOCIATED WITH TRACT
MAP 29457-1, RANCHO LA QUINTA, T.D. DESERT DEVELOPMENT.
7. ACCEPTANCE OF ON -SITE IMPROVEMENTS ASSOCIATED WITH TRACT
MAP 30487, SANTA ROSA TRAILS, SANTA ROSA TRAILS, LLC.
8. ACCEPTANCE OF OFF -SITE IMPROVEMENTS ASSOCIATED WITH TRACT
MAP 30487, SANTA ROSA TRAILS, SANTA ROSA TRAILS, LLC.
9. APPROVAL OF ANNUAL DISTRICT INFORMATION SHEETS FOR THE CITY
OF LA QUINTA ASSESSMENT DISTRICT NOS. 92-1 AND 97-,1 FOR FISCAL
YEAR END JUNE 30, 2006.
10. APPROVAL OF ANNUAL CONTINUING DISCLOSURE FOR THE CITY OF
LA QUINTA 2000-1 ASSESSMENT DISTRICT FOR FISCAL YEAR END JUNE
30, 2006.
11. APPROVAL OF THE DECLARATION OF SURPLUS PROPERTY.
12. ADOPTION OF A RESOLUTION TO EXTEND THE TIME FOR COMPLETION
OF THE OFF -SITE IMPROVEMENTS FOR TRACT MAP 30357, MOUNTAIN
VIEW COUNTRY CLUB.
13. ADOPTION OF A RESOLUTION TO EXTEND THE TIME FOR COMPLETION
OF THE ON -SITE IMPROVEMENTS FOR TRACT MAP 30357, MOUNTAIN
VIEW COUNTRY CLUB.
14. ACCEPTANCE OF ON -SITE IMPROVEMENTS ASSOCIATED WITH PARCEL
MAP NOS. 30903-1, 30903-2, AND 30903-3, WASHINGTON PARK RETAIL
CENTER, WASHINGTON III, LTD.
15. ACCEPTANCE OF OFF -SITE IMPROVEMENTS ASSOCIATED WITH PARCEL
MAP 30903-1, 30903-2, AND 30903-3, WASHINGTON PARK RETAIL
CENTER, WASHINGTON III, LTD.
16. APPROVAL OF PROFESSIONAL SERVICES AGREEMENTS WITH BUREAU
VERITAS, ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC.
(ERSC), HALL & FOREMAN, INC., WILLDAN, NRO ENGINEERING, RKA
CONSULTING GROUP AND RASA FOR ON -CALL ENGINEERING PLAN
AND/OR MAP CHECK SERVICES.
v
City Council Agenda 3 December 5, 2006
17. APPROVAL OF NEW JOB DESCRIPTIONS: ASSISTANT CITY MANAGER.
18. APPROVAL OF A SUPPLEMENTAL AGREEMENT WITH RIVERSIDE COUNTY
FOR THE USE OF COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG)
FUNDS FOR RECONSTRUCTION OF THE VILLAGE ROUNDABOUT, AND
PUBLIC SERVICE FUNDS FOR THE BOYS AND GIRLS CLUB -LA QUINTA
UNIT, FEE WAIVER/REDUCTION PROGRAM.
19. APPROVAL OF A HOUSING RELOCATION PLAN FOR 46-150 DUNE PALMS
ROAD AND 46-130 DUNE PALMS ROAD.
20. ACCEPTANCE OF A GRANT OF EASEMENT FOR EMERGENCY INGRESS
AND EGRESS AND PUBLIC UTILITY PURPOSES FROM RANCHO SANTANA
HOMEOWNERS ASSOCIATION, INC., ASSOCIATED WITH TRACT MAP
31202-1 .
BUSINESS SESSION
2. CONSIDERATION OF CITY COUNCIL REORGANIZATION.
A. MINUTE ACTION
3. CONSIDERATION OF CITY COUNCIL STANDING COMMITTEE
APPOINTMENTS.
A. MINUTE ACTION
4. CONSIDERATION OF OPTIONS FOR THE HIGHWAY 1 1 1 /WASHINGTON
STREET ART PIECE.
A. MINUTE ACTION
5. CONSIDERATION OF SECOND READING OF ORDINANCE, ADOPTING PRE -
ZONING DESIGNATIONS FOR CERTAIN LANDS PROPOSED FOR
ANNEXATION, AND CONSISTING OF 11.62 ACRES LOCATED AT THE
SOUTHEAST CORNER OF HIDDEN RIVER ROAD AND WASHINGTON
STREET AND IDENTIFIED AS ASSESSOR'S PARCEL NUMBERS 609-040-
005, 609-040-007, AND 609-040-023.
A. ADOPT ORDINANCE NO. 431 ON SECOND READING
City Council Agenda 4 December 5, 2006
6. CONSIDERATION OF SECOND READING OF ORDINANCE, AMENDING
CHAPTER 9, SECTION 9.140.080 - SUPPLEMENTAL REGULATIONS OF
THE LA QUINTA MUNICIPAL CODE REGULATING THE DEVELOPMENT AND
USAGE OF FUTURE CONDOMINIUM HOTEL UNITS IN TOURIST
COMMERCIAL DISTRICTS AND LIMITING THE CONVERSION OF EXISTING
HOTELS TO CONDOMINIUM HOTELS.
A. ADOPT ORDINANCE NO. 432 ON SECOND READING
7. CONSIDERATION OF SECOND READING OF ORDINANCE, APPROVING A
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF LA QUINTA
AND LDD SILVERROCK, LLC.
A. ADOPT ORDINANCE NO. 433 ON SECOND READING
STUDY SESSION - NONE
REPORTS AND INFORMATIONAL ITEMS
1. ANIMAL CAMPUS COMMISSION (HENDERSON)
2. CITY COUNCIL AD HOC COMMITTEE REPORTS
3. CVAG COMMITTEE REPORTS
4. CHAMBER OF COMMERCE WORKSHOP/INFORMATION EXCHANGE
COMMITTEE (KIRK)
5. C.V. CONSERVATION COMMISSION (SNIFF)
6. C.V. MOSQUITO AND VECTOR CONTROL DISTRICT MINUTES OF MAY 9,
JUNE 13, JULY 11, AUGUST 8, SEPTEMBER 12, AND OCTOBER 10, 2006
(RON PERKINS)
7. C.V. MOUNTAINS CONSERVANCY (SNIFF)
8. C.V.W.D. JOINT WATER POLICY COMMITTEE (ADOLPH)
9. JACQUELINE COCHRAN REGIONAL AIRPORT AUTHORITY (OSBORNE)
10. LEAGUE OF CALIFORNIA CITIES (HENDERSON)
11. PALM SPRINGS DESERT RESORTS CONVENTION & VISITORS AUTHORITY
(HENDERSON)
12. PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION (NANCY DORIA)
13. RIVERSIDE COUNTY CHILD SAFETY COMMISSION (HENDERSON)
14. RIVERSIDE COUNTY DESERT LIBRARY ZONE ADVISORY BOARD
(HENDERSON)
15. RIVERSIDE COUNTY TRANSPORTATION COMMISSION (HENDERSON)
16. SANTA ROSA/SAN JACINTO NATIONAL MONUMENT ADVISORY
COMMITTEE (HENDERSON)
17. SUNLINE TRANSIT AGENCY/SUNLINE SERVICES GROUP (ADOLPH) l
City Council Agenda 5 December 5, 2006
18. SILVERROCK RESORT SUBCOMMITTEE
19. SPHERE OF INFLUENCE SUBCOMMITTEE
DEPARTMENT REPORTS
1. CITY MANAGER - NONE
2. CITY ATTORNEY - NONE
3. CITY CLERK
A. REPORT ON UPCOMING EVENTS
B. REPORT ON HISTORIC PRESERVATION COMMISSION VACANCY
4. BUILDING & SAFETY DEPARTMENT MONTHLY REPORT - NONE
5. COMMUNITY DEVELOPMENT DEPARTMENT MONTHLY REPORT - NONE
6. COMMUNITY SERVICES DEPARTMENT MONTHLY REPORT - NONE
7. FINANCE DEPARTMENT REPORT - NONE
8. PUBLIC WORKS DEPARTMENT MONTHLY REPORT - NONE
9. POLICE DEPARTMENT MONTHLY REPORT - NONE
10. FIRE DEPARTMENT QUARTERLY REPORT- NONE
MAYOR'S AND COUNCIL MEMBERS' ITEMS - NONE
RECESS TO REDEVELOPMENT AGENCY MEETING
RECESS TO 7:00 P.M.
7:00 P.M.
PUBLIC COMMENT
At this time members of the public may address the City Council on any matter not
listed on the agenda. Please complete a "request to speak" form and limit your
comments to three minutes.
PRESENTATIONS - NONE
PUBLIC HEARINGS
For all Public Hearings on the agenda, a completed "request to speak" form must
be filed with the City Clerk prior to consideration of that item.
City Council Agenda 6 December 5, 2006
A person may submit written comments to City Council before a public hearing or
appear in support or opposition to the approval of a project. If you challenge a
project in court, you may be limited to raising only those issues you or someone
else raised at the public hearing or in written correspondence delivered to the City
Clerk at, or prior to the public hearing.
1. PUBLIC HEARING ON THE ADOPTION OF A RESOLUTION TO VACATE
3,117± FEET OF AVENUE 53 WEST OF MONROE STREET.
A. RESOLUTION ACTION
2. PUBLIC HEARING TO CONSIDER ADOPTION OF A RESOLUTION OF THE
CITY COUNCIL INCREASING THE FEE FOR COVERAGE UNDER THE
COACHELLA VALLEY FRINGE -TOED LIZARD HABITAT CONSERVATION
PLAN TO $2,371 PER DISTURBED ACRE.
A. RESOLUTION ACTION
3. CONTINUED JOINT PUBLIC HEARING TO CONSIDER A PROPOSED
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE
LA QUINTA REDEVELOPMENT AGENCY AND LDD SILVERROCK, LLC FOR
THE SALE AND DEVELOPMENT OF 52 ACRES OF AGENCY PROPERTY
LOCATED SOUTHWEST OF THE INTERSECTION OF JEFFERSON STREET
AND AVENUE 52 (SILVERROCK RESORT) IN THE LA QUINTA PROJECT
AREA NO. 1.
A. RESOLUTION ACTION
ADJOURNMENT
Adjourn to a regularly scheduled
December 19, 2006, commencing
session at 4:00 p.m. in the City
La Quinta, CA 92253.
meeting of the City Council
with closed session at 3:00
Council Chambers, 78-495
to be held on
p.m. and open
Calle Tampico,
City Council Agenda 7 December 5, 2006
DECLARATION OF POSTING
I, Veronica Montecino, City Clerk of the City of La Quinta, do hereby declare that
the foregoing agenda for the La Quinta City Council meeting of December 5, 2006,
was posted on the outside entry to the Council Chamber at 78-495 Calle Tampico
and on the bulletin boards at 51-321 Avenida Bermudas and 78-630 Highway 1 1 1,
on December 1, 2006.
DATED: December 1, 2006
VERONICA J
City of La Qk
C, City Clerk
Public Notices
The La Quinta City Council Chamber is handicapped accessible. If special
equipment is needed for the hearing impaired, please call the City Clerk's Office at
777-7103, twenty-four (24) hours in advance of the meeting and accommodations will be
made.
If special electronic equipment is needed to make presentations to the City Council,
arrangement should be made in advance by contacting the City Clerk's Office at 777-
7103. A one (1) week notice is required.
If background material is to be presented to the City Council during a City Council
meeting, please be advised that eight (8) copies of all documents, exhibits, etc., must be
supplied to the City Clerk for distribution. It is requested that this take place prior to the
beginning of the meeting.
City Council Agenda 8 December 5, 2006
WRITTEN CORRESPONDENCE ITEM-
0 0,jVIIE0 S
Cy0
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N BERMUDA DUNES
RANCHO MIRAGE
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-
General Patton
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Desert Training Center
November 13, 2006
City of La Quinta
Mayor Don Adolph
78495 Calle Tampico
La Quinta, California
Dear Mayor Adolph,
It has been two (2) years since our last grant request. It is now time to revisit and educate our
local high school students at La Quinta High. Our visit is scheduled for November 27-28,2006.
The Desert Sands Unified School District in partnership with the First Composite Group,
Association has created a dynamic and memorable way to teach local students about the history
of World War 11. This program includes both pre and post materials including lesson plans and a
DVD history of the war. The site visit portion of the program allows students the opportunity to
see memorabilia first hand and to participate in interactive discussions of the war and its impact
on America with historians specializing in this very important subject. This program both
educates and inspires students in a way that is not possible in the classroom.
Please help us by sponsoring your local schools and making a contribution of at least $2,500.00
to the Partnership for Education Fund. Your contribution should be made payable to the First
Composite Group a 501-C-3 non-profit education association. IRS Tax # 22-3136778.
Contributions of $2,500.00 or more will include your city logo on the signage for the school and
the distribution of any promotional materials that you would like given to the students on the day
the mobile classroom visits the school.
Thank you, for helping make your community a better place for children and education.
Regards,
§11-;I *W14-L
Dr. Doris Wilson
Superintendent
Col. Paul Kiener
Chief of Staff
Desert Sands Unified School District First Composite Group, Assoc.
78-365 Hwy 11;1; #299, La Quinta, CA 92253 - Phone: 760.954.4934 Fax: 760.771.305,4
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COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Demand Register Dated Dec. 05, 2006
RECOMMENDATION:
Approve Demand Register Dated December 5, 2006
BACKGROUND:
Prepaid Warrants:
70964 - 709851
45,269.19
70986 - 70986)
128.00
Voids}
(212.00)
Wire Transfers}
250,477.59
P/R 33538 - 33561 }
173,369.79
P/R Tax Transfers}
46,128.92
Payable Warrants:
70987 - 711041 499,485.03
$1,014,646.52
FISCAL IMPLICATIONS:
Demand of Cash -City $779,336.84
Demand of Cash -RDA $235,309.68
(uxA&I_
John M. Falconer, Finance Director
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
CITY OF LA QUINTA
BANK TRANSACTIONS 11/16/06 - 11/29/06
11/20/06 WIRE TRANSFER - PERS
11/20/06 WIRE TRANSFER - ICMA
11/24/06 WIRE TRANSFER - LANDMARK
$44,450.86
$6,815.89
$199,210.84
TOTAL WIRE TRANSFERS OUT $250,477.59
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COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Adoption of a Resolution Accepting a
Donation from New Horizon Mortgage Concepts to the
La Quinta Senior Center
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt a Resolution of the City Council accepting a donation from New Horizon
Mortgage Concepts to the La Quinta Senior Center.
FISCAL IMPLICATIONS:
New Horizon Mortgage Concepts is donating a 27-inch flat screen television to the
La Quinta Senior Center to be utilized by the senior residents in the community.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
New Horizon Mortgage Concepts has a valued interest in giving back to the
community. New Horizon Mortgage Concepts wanted to contribute something that
would be utilized by the community of senior residents in La Quinta. The donation
to the La Quinta Senior Center will be put on a roaming cart that will be utilized for
various classes, meetings and seminars.
U
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Adopt a Resolution of the City Council accepting a donation from New
Horizon Mortgage Concepts to the La Quinta Senior Center; or
2. Do not adopt a Resolution of the City Council accepting a donation from
New Horizon Mortgage Concepts to the La Quinta Senior Center; or
3. Provide staff with alternative direction.
Respectfully submitted,
4Fdieo , Community Services Director
Approved for submission by:
Thomas P. Genovese, City Manager
RESOLUTION NO. 2006-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA, CALIFORNIA, ACCEPTING DONATIONS
FROM NEW HORIZON MORTGAGE CONCEPTS TO THE
LA QUINTA SENIOR CENTER
WHEREAS, on December 5, 2006, New Horizon Mortgage Concepts
generously offered a donation of a 27-inch flat screen television to be given to the
La Quinta Senior Center as a contribution to the community of senior residents in
La Quinta; and
WHEREAS, The gift was offered for donation to the City of La Quinta and
was not given to or limited to the use of any particular employee or official; and
WHEREAS, it is in the best interest of the City of La Quinta to accept the
donation.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
La Quinta, California, as follows:
The City of La Quinta hereby accepts the donation a 27-inch flat
screen television from New Horizon Mortgage Concepts as a
contribution to the community of senior residents in La Quinta who
utilize the Senior Center.
PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta
City Council held on this 5th day of December, 2006, by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
DON ADOLPH, Mayor
City of La Quinta, California
Resolution No. 2006-
New Horizon Mortgage Concepts
Adopted: December 5, 2006
Page 2
ATTEST:
Veronica J. Montecino, CIVIC, City Clerk
City of La Quinta, California
(City Seal)
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
.a
U11
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Acceptance of On -site Improvements
Associated with Parcel Map No. 32683-3, Washington
Park Retail Center, Washington III, LTD
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR: a
STUDY SESSION:
PUBLIC HEARING:
Accept on -site improvements associated with Parcel Map No. 32683-3, Washington
Park Retail Center, Washington III, LTD and authorize staff to release performance
securities upon receipt of warranty securities.
FISCAL IMPLICATIONS:
None. No public improvements will be accepted with this action.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Parcel Map No. 32683-3, Washington Park Retail Center is located on the east side of
Washington Street between Simon Drive and Avenue 47 (please see Attachment 1).
All obligations of the Subdivision Improvement Agreement and the Conditions of
Approval have been satisfied. Attachment 2 indicates the amount of warranty
security.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
Accept the on -site improvements associated with Parcel Map No. 32683-
3, Washington Park Retail Center, Washington III, LTD and authorize staff
to release performance securities upon receipt of warranty securities; or
2. Do not accept the on -site improvements associated with Parcel Map No.
32683-3, Washington Park Retail Center, Washington III, LTD and do not
authorize staff to release performance securities upon receipt of warranty
securities; or
3. Provide staff with alternative direction.
Respectfully submitted,
j
thy R. n sson Ec Works recto City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachments: 1. Vicinity Map
2. Warranty Security
ATTACHMENT - I
PARCEL MAP No. 32683-3
WASHINGTON PARK RETAIL CENTER
HW'• III
PROJECT
SITE -
0
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0
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C5
O
riiI AVENUE 48
AVENUE 50
0
En
o:
tt
D
VICINITY MAP
NOT TO SCALE
CITY COUNCIL MEETING: December 5, 2006
TO INDIO
ITEM TITLE: Acceptance of On -site Improvements Associated with Parcel Map No.
32683-3, Washington Park Retail Center
APPLICANT: Washington III, LTD
" r
Vv
ATTACHMENT - 2
PARCEL MAP No. 32683-3
WASHINGTON PARK RETAIL CENTER
ON -SITE IMPROVEMENTS
ON -SITE IMPROVEMENTS
Performance Security'
Improvement Description
Labor &
Materials;
Current
Amount
Proposed
Reduction
WARRANTY
AMOUNT
Landscape
$196,500
$196,500
900/0
$19,650
Monumentation
$0
$9,000
100%
$0
No Plans Contingency
$54,040
$56,510
100%
$0
Professional Fees, Construction 10%
$21,620
$22,610
100%
$0
Professional Fees, Design 10%
1 $21,620
$22,610
1 100%
$0
Standard Contingency 10%
1 $19,650
$20,550
1 100%
$0
Totalsl
$313,430
$327,780
1
$19,650
IRANr
CITY COUNCIL MEETING: December 5, 2006
RI
ITEM TITLE: Acceptance of On -site Improvements Associated with Parcel Map No.
32683-3, Washington Park Retail Center
APPLICANT: Washington III, LTD
U 9'
COUNCIL/RDA MEETING DATE:
ITEM TITLE: Approval of Contract Change Order Nos.
9-15 for Eisenhower Drive Bridge and Drainage
Improvements, Project No. 2001-06;
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION: _
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Approve Contract Change Order Nos. 9-15 (Attachment 1) to reimburse contractor for
extra work caused by construction impacts not addressed on the project plans and
specifications.
FISCAL IMPLICATIONS:
The following is a budget summary:
Budget Total
Amount spent through December 5, 2006
Amount Available
Pending Contract Change Order Nos. 9-15
Remaining Fiscal Commitment
$ 4,154,475
$ 4,064,667
$ 89,808
$ 198,648
$ (108,840)
As can be seen, an additional appropriation in the amount of $108,840 needs to be
made. The Agency will consider appropriation of $108,840 from RDA No. 1 to fund
Contract Change Order Nos. 9-15 under a separate item.
CHARTER CITY IMPLICATIONS:
This project is partially funded with RDA Project Area No. 1 funds. As a result, the
project was bid utilizing prevailing wage requirements. Therefore, there are no charter
city implications.
BACKGROUND AND OVERVIEW:
On November 16, 2004, the City Council adopted a Resolution certifying a Mitigated
Negative Declaration of environmental impact for Environmental Assessment 2004-
519; and approved the PS&E of probable construction costs, and authorized staff to
advertise the Eisenhower Drive Bridge and Drainage Improvements, Project No. 2001-
06 for bid.
On January 5, 2005, seven sealed bids were received for the construction of this
project. Granite Construction submitted the lowest responsive bid in the amount of
$2,565,565.
On January 18, 2005 City Council awarded a contract for $2,565,565 to Granite
Construction Company to construct the Eisenhower Drive Bridge and Drainage
Improvements, Project No. 2001-06.
On February 24, 2005 a Notice to Proceed was issued with a 310 consecutive
calendar day contract completion time starting February 28, 2005, and ending on
January 3, 2006.
Contract Change Orders 9-15 reimburses the contractor for extra work caused by
construction impacts not addressed on the project plans and specifications. Such
work includes the construction of a retaining block wall and foundations, additional
cold milling and asphalt placement; repair of a sinkhole; additional striping,
construction of a slough wall and wall extensions for retaining and restoration of
landscaping adjacent to the project which was impacted by the construction. Contract
Change Orders 9-15 will extend the project for a total of 99 consecutive calendar
days.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Approve Contract Change Order Nos. 9-15 (Attachment 1) to reimburse
contractor for extra work caused by construction impacts not addressed on
the project plans and specifications; or
2. Do not Approve Contract Change Order Nos. 9-15 (Attachment 1) to reimburse
contractor for extra work caused by construction impacts not addressed on the
project plans and specifications; or
3. Provide staff with alternative direction.
Respectfully submitted,
-zWmothy R. ona, n, P.E.
Public Works Dir ctor/City Engineer
Approved for submission by:
l
Thomas P. Genovese, City Manager
Attachment: 1. Contract Change Order Nos. 9-15
try
Attachment 1
Sheet 1 of 1
RACT: Eisenhower Drive Bridge and Drainage Improvements
Project No. 2001-06
RACTOR: Granite Construction Company
38000 Monroe Street
Indio, CA 92203-9500
CONTRACT CHANGE ORDER NO. 9
it to the terms of the original Contract Agreement, you are hereby directed to make the herein described charges or do the following
ed work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
conditions, and special provisions of the original Contract.
RIPTION OF CHANGE ORDER:
:ontract Change Order compensates the contractor to construct foundations and retaining block wall along the
dy right-of-way in back of the proposed concrete sidewalk. Included in the work is the removal of existing
trees, relocation of irrigation lines, electrical service of up -lighting for landscape features and painting of
ig block screen wall in back of proposed retaining wall. There were no provisions within the contract plans or
ications to address the necessity of retaining the newly created excavated embankment. The total cost of
ructing foundations, retaining walls and related work amounted to: $100,791.85
ison of this contract change order the time of completion Is changed. Increased 61 Calendar Days. The new completion
s 611 SM.
....«�.....«��.....+.....s
Witted By: Date:
roved By: Date:
he undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal
wed, that we will provide all equipment, furnish all materials, perform all labor, exceptas maybe noted above, andpedomt all service
ssary to complete the above spewed work, and hereby accept as full payment the amount shown above, which includes all dined at
id overhead expenses for any delays associated to the work described in this contract change order.
epted
Title: ( iV67 zO,'MA/
r .-
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tOJECTSt2_CONSTRUCTION12001-06 Eisenhower BridgetConstructiontProgress Payments & CCUMCCO 9 .doc
4 44umraj
F r1O
RACT: Eisenhower Drive Bridge and Drainage Improvements
Project No. 2001-06
'RACTOR: Granite Construction Company
38000 Monroe Street
Indio, CA 92203-9500
CONTRACT CHANGE ORDER NO. 10
Sheet 1 of 1
rd to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
red work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
1 conditions, and special provisions of the original Contract.
:RIPTION OF CHANGE ORDER:
contract Change Order compensates the contractor for additional pavement cold milling and placement of
irized pavement near the joint of the bridge and at the intersection of Avenue 50 to match existing A.C.
nent grades. This work did not become apparent until after much of the road improvements were constructed,
total costs for this work amounted to: $58,932.03
F— Previous Contract Amount Through Change Order No. 91 $2,795,487.58
rson of this contract change order the time of completion is changed. Increased 12 Calendar Days. The new completion dab
D106.
initted By: Date:
roved By: Date:
the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal
wed, that we will provide all equipment, furnish all materials, perform all labor, except as maybe notedabove, andperform all servta
ssary to complete the above speairred work, and hereby accept as full payment the amountshown above, which includes all direct ar
rct overhead expenses for any delays associated to the work described in this contract change order.
opted By i:/�/I lfs��z Title:
(tractor:
ROJECTS\2CONSTRUCTIONt2001-06 Eisenhower Bridge\Construc iontProgress Payments & CCO'stCCO 10.doc
4a�w
Flo
RACT: Eisenhower Drive Bridge and Drainage Improvements
Project No. 2001-06
RACTOR: Granite Construction Company
38000 Monroe Street
Indio, CA 92203-9600
CONTRACT CHANGE ORDER NO. 11
Sheet 1 of 1
nt to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
ad work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
I conditions, and special provisions of the original Contract.
:RIPTION OF CHANGE ORDER:
:ontract Change Order compensates the contractor to explore and repair a sinkhole fronting an existing storm
catch basin near the intersection of Eisenhower Drive at Avenue 50. The costs associated with the repairs of
iadway amounted to:. $2,693.56
Previous Contract Amount Through Change Order No. 10 1 $2,854,420.03
Add Chance Order No. 11 2 5$ . 93.56
ison of this contract change order the time of completion is changed. Increased 21 Calendar Days. The new completion dab
1106.
miffed By: Date:
roved By: Date:
the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, N this proposal
rved, that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, andperform all servia
ssary to complete the above specified work, and hereby accept as full payment the amountshown above, which includes alldirecdai
;ct overhead expenses for any delays associated to the work described in this contract change order.
.spied
ltractor:
ROJECTS�2 CONSTRUCTION\2001-06 Eisenhower Bridge\ConstructionTrogress Payments & CCO's\CCO 11.doc
j
o�
RACT: Eisenhower Drive Bridge and Drainage Improvements
Project No. 2001-06
'RACTOR: Granite Construction Company
38000 Monroe Street
Indio, CA 92203-9500
CONTRACT CHANGE ORDER NO. 12
Sheet 1 of 1
int to the terms of the original Contract Agreement, you are .hereby directed to make the herein described changes or do the following
red work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
it conditions, and special provisions of the original Contract.
=PTION OF CHANGE ORDER:
Contract Change Order compensates the contractor for additional roadway lane striping necessary tc
alize traffic from the existing improvement through the newly constructed improvements. The costs for the
ad striping amounted to: $1,806.26
I Previous Contract Amount Through Change Order No. 11 I $2,857,013.59
Contract
ism of this contract change order the time of completion Is changed. Increased 3 Calendar Days. The new completion dat
4M.
mitted By: Date:
roved By: Date:
the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal
Dved, that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all servio
ssary to complete the above specified work, and hereby accept as full payment the emountshown above, which includes all direct ai
.ct overhead expenses for any delays associated to the work described in this contract change onier.
:opted
ltractor:
ROJECTSt2 CONSTRUCTION12001-06 Eisenhower BridgetConstructionv'rogress Payments & CCO'stCCO 12.doc
4 40amraj
FT4�9
RACT: Eisenhower Drive Bridge and Drainage Improvements
Project No. 2001-06
RACTOR: Granite Construction Company
38000 Monroe Street
Indio, CA 92203-9500
CONTRACT CHANGE ORDER NO. 13
Sheet 1 of 1
utt to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
ied work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
it conditions, and special provisions of the original Contract.
«....**ak
:RIPTION OF CHANGE ORDER:
:ontract Change Order compensates the contractor to construct a poured -in -place concrete slough wall atom
astedy right-of-way behind the sidewalk on Eisenhower Drive. The need for the slough wall was not identifiec
after the road improvements were constructed. The costs for this work amounted to:
$12,282.21
&son of this contract change order the time of completion is changed. Increased 2 Calendar Days. The new completion dal
6106.
****a a k k a k a *
mitted By: Date:
iroved By: Date-
...*:.*6Ma.�0MMM**.************
the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal
oved, that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all servic
issary to complete the above specified work, and hereby accept as full payment the amount shown above, which includes all direct a
act overhead expenses for any delays associated to the work described in this contract change order.
:epted By: 1Za 1 Title:zn2J/�%f�/�iF
ntractor:
'ROJECTM—CONSTRUCTIOM2001-06 Eisenhower BridgetConstructionlProgress Payments & CCUMCC013.doc
DQ�o • ���
F 11 V
'RACT: Eisenhower Drive Bridge and Drainage Improvements
Project No. 2001-06
'RACTOR: Granite Construction Company
38000 Monroe Street
Indio, CA 92203-9600
CONTRACT CHANGE ORDER NO. 14
Sheet 1 of 1
nt to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
ied work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
I conditions, and special provisions of the original Contract.
:RIPTION OF CHANGE ORDER: .
Contract Change Order compensates the contractor to construct a wall extension on the south end 01
ning Wall No. 2 adjacent to the bridge near the Silver Hawk Development. The plans did not make adequate
Dons to retain the backfill at this location. The costs associated with this work amounted to:
$6,242.81
rson of this contract change order the time of completion Is unchanged. The contract completion date remains 7126M.
Wilted By: Date: -
roved By: Date:
he undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal
wed, that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all servo
ssary to complete the above specified work, and hereby accept as full payment the emountshown above, which includes all direct al
ict overhead expenses for any delays associated to the work described in this contract change order.
1-61
20JECTS\2CONSTRUCTION72001-06 Eisenhower Bridge\ConstructionTrogress Payments & CCO'M=14.doc
P I;9�
RACT: Eisenhower Drive Bridge and Drainage Improvements
Project No. 2001-06
'RACTOR: Granite Construction Company
38000 Monroe Street
Indio, CA 92203-9500
CONTRACT CHANGE ORDER NO. 15
Sheet 1 of 1
nt to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
ed work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
I conditions, and special provisions of the original Contract.
:RIPTION OF CHANGE ORDER:
ontract Change Order compensates the contractor to install Myoporum ground cover on the westerly side of Eisenhower
Detween the bridge and Avenue 50. The cost of this work amounts to: $12,276.00
:ontract Change Order compensates the contractor to restoring landscaping damaged by the widening of Eisenhower
which was not addressed in the project plans and specifications. The cost of this work amounts to: b 8,463.00
:ontract Change Order allows for the adjustment of the actual Final Quantities installed versus the Bid Amount Quantities.
Dst of this work amounts to: b 4,025.15
rson of this contract change order the time of completion is unchanged. The contract completion date remains 7126106.
nitted By: Date:
-oved By: —Date:
he undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal
ved, that we will provide all equipment, furnish all materials, perform all labor, except as may be rioted above, andperfonn all servbE
rsary to complete the above specified work, and hereby accept as full payment the amount shown above, which includes all directar
of overhead expenses for any delays associated to the work described in this contract change order.
Dpted By: Title:
tractor: Date:
i�
OJECTSIZCONSTRUCTIONN2001-05 Eisenhower Bridge\Construction\Progress Payments & CCO's\CCO 15.doc
COUNCIL/RDA MEETING DATE: December 5, 2006 AGENDA CATEGORY:
ITEM TITLE: Approval of Agency -Federal Master
Agreement Number 08-5433R and Program
Supplemental Agreement Number 006-N for Federal
Funding Toward the Avenue 54 Pavement
Rehabilitation Improvements, Project No. 2005-11
RECOMMENDATION:
BUSINESS SESSION:
CONSENT CALENDAR: S
STUDY SESSION:
PUBLIC HEARING:
Authorize the City Manager to execute Agency -Federal Master Agreement 08-
5433R (Attachment 1) and Program Supplemental Agreement 006-N (Attachment
2) providing Federal funding toward the construction of the Avenue 54 Pavement
Rehabilitation Improvements, Project Number 2005-11.
FISCAL IMPLICATIONS:
The following is the project's approved funding and funding sources:
State Gas Funds:
Surface Transportation Program (STP)
Total Funding:
The following is the approved project budget:
Construction:
Design:
Professional (Fed Docs/Env Doc)
Insp/Test/Survey:
Administration:
Contingency:
Total:
$469,015
$228,000
$697,015
$543,650
$25,000
10,000
$43,000
$12,000
$63,365
$697,015
CHARTER CITY IMPLICATIONS:
None. This project is partially funded with federal monies. Therefore, the project
was advertised with a prevailing wage requirement included in the contract
specifications.
BACKGROUND AND OVERVIEW:
The proposed improvements include rehabilitating the pavement within the two
existing east bound travel lanes on Avenue 54, from Jefferson Street to Madison
Street. The existing pavement is 30 feet wide and 5,280 feet long.
In April 2005, the Riverside County Transportation Commission (RCTC) approved
the Avenue 54 Pavement Rehabilitation Improvements for STP funding in the
amount of $228,523.
On May 17, 2005, the City Council adopted a Resolution approving the Fiscal Year
2005/2006 through 2009/2010 Capital Improvement Program (CIP). The Avenue
54 Pavement Rehabilitation Improvement is included within the adopted CIP and
scheduled for funding within the Fiscal Year 2006/2007.
On September 15, 2006, the City was notified by Caltrans that FHWA approved
the City's funding obligation request and authorized the City to proceed to
construction.
On November 7, 2006, the City Council appropriated $372,134 from unreserved
State Gas Tax funds and approved a Contract with the Hazard Construction
Company, in the amount of $543,650 to construct the Avenue 54 Pavement
Rehabilitation Improvements, Project Number 2005-11.
The attached City of La Quinta/Agency Master Agreement 08-5433R provides the
overall parameters for any Federal funding received from the California Department
of Transportation. The attached Supplement Agreement 006-N provides for the
Federal funding specifically assigned to this project.
In addition to the City's execution of the original agreement, the City Clerk will be
required to provide a certified "Minute Order" that clearly identifies the project and
the official authorized to execute the agreement.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
U��
Authorize the City Manager to execute Agency -Federal Master Agreement
08-5433R and Program Supplemental Agreement 006-N providing Federal
funding toward the construction of the Avenue 54 Pavement Rehabilitation
Improvements, Project Number 2005-11; or
2. Do not authorize the City Manager to execute Agency -Federal Master
Agreement 08-5433R and Program Supplemental Agreement 006-N
providing Federal funding toward the construction of the Avenue 54
Pavement Rehabilitation Improvements, Project Number 2005-11; or
3. Provide staff with alternative direction.
Respectfully submitted,
Jrmothy R. ona n, P.E.
Public Wo s Dir for/City Engineer
Approved for submission by:
r; ye'y�� z�"
Thomas P. Genovese, City Manager
Attachment: 1 . Agency/Federal Master Agreement No. 08-5433R
2. Program Supplemental Agreement No. 006-N
MASTER AGREEMENT
ADMINISTERING AGENCY -STATE AGREEMENT FOR
FEDERAL -AID PROJECTS
Attachme
08 City of La Quinta
District Administering Agency
Agreement No. 08-5433R
This AGREEMENT, is entered into effective this day of 2006, by
between the City of La Quinta, hereinafter referred to as "ADMINISTERING AGENCY," and
State of California, acting by and through its Department of Transportation (Caltrans), hereina
referred to as "STATE, and together referred to as "PARTIES" or individually as a "PARTY."
RECITALS:
1. WHEREAS, the Congress of the United States has enacted the Intermodal Surf
Transportation Efficiency Act (ISTEA) of 1991 and subsequent Transportation Authorization I
to fund transportation programs. These transportation programs include, but are not limited to,
Surface Transportation Program (STP), the Congestion Mitigation and Air Quality Improven
Program (CMAQ), the Transportation Enhancement Program (TE), Highway Safety Improven
Program (HSIP) and the Highway Bridge Program (HBP) (collectively the 'PROGRAMS'); and
2. WHEREAS, the Legislature of the State of California has enacted legislation by which cei
federal -aid funds may be made available for use on local transportation related projects of pu
entities qualified to act as recipients of these federal -aid funds in accordance with the inten
federal law; and
3. WHEREAS, before federal -funds will be made available for a specific program proj
ADMINISTERING AGENCY and STATE are required to enter into an agreement to estal
terms and conditions applicable to the ADMINISTERING AGENCY when receiving federal fi
for a designated PROJECT facility and to the subsequent operation and maintenance of
completed facility.
NOW, THEREFORE, the PARTIES agree as follows:
r � q
ARTICLE I - PROJECT ADMINISTRATION
1. This AGREEMENT shall have no force or effect with respect to any program project unless
until a project -specific Program Supplement to this AGREEMENT for federal -aid projec
hereinafter referred to as "PROGRAM SUPPLEMENT", has been fully executed by both STF
and ADMINISTERING AGENCY.
2. The term "PROJECT", as used herein, means that authorized transportation related project
related activities financed in part with federal -aid funds as more fully -described in
"Authorization/ Agreement Summary" or "Amendment/Modification Summary", herein referre
as "E-76" or "E-76 (AMOD)" document authorized by STATE or the Federal Highw
Administration (FHWA).
3. The E-76/E-76(AMOD) shall designate the party responsible for implementing PROJECT, ty
of work and location of PROJECT.
4. The PROGRAM SUPPLEMENT sets out special covenants as a condition for
ADMINISTERING AGENCY to receive federal -aid funds from/through STATE for designa
PROJECT. The PROGRAM SUPPLEMENT shall also show these Federal Funds that have b
initially encumbered for PROJECT along with the matching funds to be provided
ADMINISTERING AGENCY and/or others. Execution of PROGRAM SUPPLEMENT by
PARTIES shall cause ADMINISTERING AGENCY to adopt all of the terms of this AGREEMI
as though fully set forth therein in the PROGRAM SUPPLEMENT. Unless otherwise expre
delegated in a resolution by the governing body of ADMINISTERING AGENCY, and with wri
concurrence by STATE, the PROGRAM SUPPLEMENT shall be approved and managed by
governing body of ADMINISTERING AGENCY.
5. ADMINISTERING AGENCY agrees to execute and return each project -specific PROGR
SUPPLEMENT within ninety (90) days of receipt. The PARTIES agree that STATE may susf
future authorizations/obligations and invoice payments for any on -going or future federal•
project performed by ADMINISTERING AGENCY if any project -specific PROGP
SUPPLEMENT is not returned within that ninety (90) day period unless otherwise agree(
STATE in writing.
6. ADMINISTERING AGENCY further agrees, as a condition to the release and paymer
Federal Funds encumbered for the PROJECT described in each PROGRAM SUPPLEMEN'
comply with the terms and conditions of this AGREEMENT and all of the agreed -upon Spe
Covenants or Remarks incorporated within the PROGRAM SUPPLEMENT,
Cooperative/Contribution Agreement where appropriate, defining and identifying the nature c
specific PROJECT.
7. Federal, State and matching funds will not participate in PROJECT work performed in adw
of the approval of the E-76 or E-76 (AMOD), unless otherwise stated in the executed proje
specific PROGRAM SUPPLEMENT. ADMINISTERING AGENCY agrees that it will only pros
with the work authorized for that specific phase(s) on the project -specific E-76 or E-76 (AMO
ADMINISTERING AGENCY further agrees to not proceed with future phases of PROJECT pri
receiving an E-76 (AMOD) from STATE for that phase(s) unless no Further Federal funds
needed or for those future phase(s).
8. That PROJECT or portions thereof, must be included in a federally approved Federal Statew
Transportation Improvement Program (FSTIP) prior to ADMINISTERING AGENCY submitting
"Request for Authorization".
9. ADMINISTERING AGENCY shall conform to all State statutes, regulations and procedu
(including those set forth in the Local Assistance Procedures Manual and the Local Assistai
Program Guidelines, hereafter collectively referred to as "LOCAL ASSISTANCE PROCEDURE
relating to the federal -aid program, all Title 23 federal requirements, and all applicable fede
laws, regulations, and policy and procedural or instructional memoranda, unless othery
specifically waived as designated in the executed project -specific PROGRAM SUPPLEMENT.
10. If PROJECT is not on STATE -owned right of way, PROJECT shall be constructed
accordance with LOCAL ASSISTANCE PROCEDURES that describes minimum statewide de:
standards for local agency streets and roads. LOCAL ASSISTANCE PROCEDURES for prof(
off the National Highway System (NHS) allow STATE to accept either the STATE's minirr
statewide design standards or the approved geometric design standards of ADMINISTERI
AGENCY. Additionally, for projects off the NHS, STATE will accept ADMINISTERING AGEN(
approved standard specifications, standard plans, materials sampling and testing qu;
assurance programs that meet the conditions described in the then current LOCAL ASSISTAIN
PROCEDURES.
11. If PROJECT involves work within or partially within STATE -owned right-of-way, th
PROJECT shall also be subject to compliance with the policies, procedures and standards of
STATE Project Development Procedures Manual and Highway Design Manual and wt
appropriate, an executed cooperative agreement between STATE and ADMINISTER
AGENCY that outlines the PROJECT responsibilities and respective obligations of the PART
ADMINISTERING AGENCY and its' contractors shall each obtain an encroachment pe
through STATE prior to commencing any work within STATE rights of way or work which aff
STATE facilities.
12. When PROJECT is not on the State Highway System but includes work to be performed I
railroad, the contract for such work shall be prepared by ADMINISTERING AGENCY o
STATE, as the PARTIES may hereafter agree. In either event, ADMINISTERING AGENCY.,
enter into an agreement with the railroad providing for future maintenance of protective device
other facilities installed under the contract.
13. If PROJECT is using STATE funds, the Department of General Services, Division of the c.
Architect, or its designee, shall review the contract PS&E for the construction of buildi
structures, sidewalks, curbs and related facilities for accessibility and usability. ADMINISTEF
AGENCY shall not award a PROJECT construction contract for these types of improvements
the State Architect has issued written approval stating that the PROJECT plans and specifical
comply with the provisions of sections 4450 and 4454 of the California Government Coc
applicable. Further requirements and guidance are provided in Title 24 of the California Co(
Regulations.
14. ADMINISTERING AGENCY will advertise, award and administer PROJECT in accord;
with the current LOCAL ASSISTANCE PROCEDURES unless otherwise stated in the exec
project -specific PROGRAM SUPPLEMENT.
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15. ADMINISTERING AGENCY shall provide or arrange for adequate supervision and inspect
of each PROJECT. While consultants may perform supervision and inspection work
PROJECT with a fully qualified and licensed engineer, ADMINISTERING AGENCY shall provid
full-time employee to be in responsible charge of each PROJECT.
16. ADMINISTERING AGENCY shall submit PROJECT -specific contract award documents
STATE's District Local Assistance Engineer within sixty (60) days after contract award. A cop)
the award documents shall also be included with the submittal of the first invoice for a construct
contract by ADMINISTERING AGENCY to: Department of Transportation, Division of Accouni
Local Programs Accounting Branch, MS #33, PO Box 942874, Sacramento, California 942A
0001.
17. ADMINISTERING AGENCY shall submit the final report documents that collectively constii
a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Fail
by ADMINISTERING AGENCY to submit a "Report of Expenditures" within one hund
eighty(180) days of project completion will result in STATE imposing sanctions ul
ADMINISTERING AGENCY in accordance with the current LOCAL ASSISTAN
PROCEDURES.
18. ADMINISTERING AGENCY shall comply with: (i) section 504 of the Rehabilitation Act of 1
which prohibits discrimination on the basis of disability in federally assisted programs; (ii)
Americans with Disabilities Act (ADA) of 1990 which prohibits discrimination on the basis
disability irrespective of funding; and (iii) all applicable regulations and guidelines issued purst
to both the Rehabilitation Act and the ADA.
19. The Congress of the United States, the Legislature of the State of California and the Gove
of the State of California, each within their respective jurisdictions, have prescribed cer
nondiscrimination requirements with respect to contract and other work financed with public fui
ADMINISTERING AGENCY agrees to comply with the requirements of the FAIR EMPLOYMI
PRACTICES ADDENDUM (Exhibit A attached hereto) and the NONDISCRIMINAT
ASSURANCES (Exhibit B attached hereto). ADMINISTERING AGENCY further agrees that
agreement entered into by ADMINISTERING AGENCY with a third party for performance
PROJECT -related work shall incorporate Exhibits A and B (with third parry's name replac
ADMINISTERING AGENCY) as essential parts of such agreement to be enforced by that
party as verified by ADMINISTERING AGENCY.
ARTICLE II - RIGHTS OF WAY
1. No contract for the construction of a federal -aid PROJECT shall be awarded until all necess�
rights of way have been secured. Prior to the advertising for construction of PROJE(
ADMINISTERING AGENCY shall certify and, upon request, shall furnish STATE with evider
that all necessary rights of way are available for construction purposes or will be available by
time of award of the construction contract.
2. ADMINISTERING AGENCY agrees to indemnify and hold STATE harmless from any liab
that may result in the event the right of way for a PROJECT, including, but not limited to, be
clear as certified or if said right of way is found to contain hazardous materials requiring treatm
or removal to remediate in accordance with Federal and State laws. The furnishing of right of u
as provided for herein includes, in addition to all real property required for the PROJECT, title I
and clear of obstructions and encumbrances affecting PROJECT and the payment, as requirec
applicable law, of relocation costs and damages to remainder real property not actually taken
injuriously affected by PROJECT. ADMINISTERING AGENCY shall pay, from its own m
matching funds, any costs which arise out of delays to the construction of PROJECT beca
utility facilities have not been timely removed or relocated, or because rights of way were
available to ADMINISTERING AGENCY for the orderly prosecution of PROJECT work.
3. Subject to STATE approval and such supervision as is required by LOCAL ASSISTAIN
PROCEDURES over ADMINISTERING AGENCY's right of way acquisition procedu
ADMINISTERING AGENCY may claim reimbursement from Federal Funds for expenditt
incurred in purchasing only the necessary rights of way needed for the PROJECT after credi
PROJECT with the fair market value of any excess property retained and not disposed o'
ADMINISTERING AGENCY.
4. When real property rights are to be acquired by ADMINISTERING AGENCY for a PROJE
said ADMINISTERING AGENCY must carry out that acquisition in compliance with all applic
State and Federal laws and regulations, in accordance with State procedures as publishe
State's current LOCAL ASSISTANCE PROCEDURES and STATE's Right -of -Way Mam
subject to STATE oversight to ensure that the completed work is acceptable under the Fec
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amende
5. Whether or not federal -aid is to be requested for right of way, should ADMINISTERI
AGENCY, in acquiring right of way for PROJECT, displace an individual, family, business,
operation, or non-profit organization, relocation payments and services will be provided as
forth in 49 CFR, Part 24. The public will be adequately informed of the relocation payments
services which will be available, and, to the greatest extent practicable, no person la%
occupying real property shall be required to move from his/her dwelling or to move hi
business or farm operation without at least ninety (90) days written notice from ADMINISTEF
AGENCY. ADMINISTERING AGENCY will provide STATE with specific assurances, on
portion of the PROJECT, that no person will be displaced until comparable decent, safe
sanitary replacement housing is available within a reasonable period of time prior to displacen
and that ADMINISTERING AGENCY's relocation program is realistic and adequate to prc
orderly, timely and efficient relocation of PROJECT- displaced persons as provided in 49 C
Part 24.
6. ADMINISTERING AGENCY shall, along with recording the deed or instrument evidencing
in the name of the ADMINISTERING AGENCY or their assignee, shall also record an Agreer
Declaring Restrictive Covenants (ADRC) as a separate document incorporating the assurar
included within Exhibits A and B and Appendices A, B, C and D of the AGREEMENT
appropriate.
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ARTICLE III - MAINTENANCE AND MANAGEMENT
1. ADMINISTERING AGENCY will maintain and operate the property acquired, develop
constructed, rehabilitated, or restored by PROJECT for its intended public use until such time
the parties might amend this AGREEMENT to otherwise provide. With the approval of STA'
ADMINISTERING AGENCY or its successors in interest in the PROJECT property may trap:
this obligation and responsibility to maintain and operate PROJECT property for that intent
public purpose to another public entity.
2. Upon ADMINISTERING AGENCY's acceptance of the completed federal -aid constructi
contract or upon contractor being relieved of the responsibility for maintaining and protec,
PROJECT, ADMINISTERING AGENCY will be responsible for the maintenance, owners)
liability, and the expense thereof, for PROJECT in a manner satisfactory to the authori;
representatives of STATE and FHWA and if PROJECT falls within the jurisdictional limits
another Agency or Agencies, it is the duty of ADMINISTERING AGENCY to facilitate a sepal
maintenance agreement(s) between itself and the other jurisdictional Agency or Agern
providing for the operation, maintenance, ownership and liability of PROJECT. Until th
agreements are executed, ADMINISTERING AGENCY will be responsible for all PROJE
operations, maintenance, ownership and liability in a manner satisfactory to the authori
representatives of STATE and FHWA. If, within ninety (90) days after receipt of notice fi
STATE that a PROJECT, or any portion thereof, is not being properly operated and maintaii
and ADMINISTERING AGENCY has not satisfactorily remedied the conditions complained of,
approval of future federal -aid projects of ADMINISTERING AGENCY will be withheld until
PROJECT shall have been put in a condition of operation and maintenance satisfactory to ST/
and FHWA. The provisions of this section shall not apply to a PROJECT that has been vaci
through due process of law with STATE's concurrence.
3. PROJECT and its facilities shall be maintained by an adequate and well -trained stafl
engineers and/or such other professionals and technicians as PROJECT reasonably requ
Said operations and maintenance staff may be employees of ADMINISTERING AGENCY, ano
unit of government, or a contractor under agreement with ADMINISTERING AGENCY.
maintenance will be performed at regular intervals or as required for efficient operation of
complete PROJECT improvements.
ARTICLE IV - FISCAL PROVISIONS
1. All contractual obligations of STATE are subject to the appropriation of resources by
Legislature and the allocation of resources by the California Transportation Commission (CT
2. STATE'S financial commitment of Federal Funds will occur only upon the execution of I
AGREEMENT, the authorization of the project -specific E-76 or E-76 (AMOD), the execution 4
each project -specific PROGRAM SUPPLEMENT, and STATE's approved finance letter.
3. ADMINISTERING AGENCY may submit signed duplicate invoices in arrears for reimbursem
of participating PROJECT costs on a monthly or quarterly progress basis once the project -spec
PROGRAM SUPPLEMENT has been executed by STATE.
4. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices at least once every
(6) months commencing after the funds are encumbered on either the project -specific PROGRJ
SUPPLEMENT or through a project -specific finance letter approved by STATE. STATE resen
the right to suspend future authorizations/obligations, and invoice payments for any on-goinc
future federal -aid project by ADMINISTERING AGENCY if PROJECT costs have not be
invoiced by ADMINISTERING AGENCY for a six (6) month period
5. Invoices shall be submitted on ADMINISTERING AGENCY letterhead that includes the addr
of ADMINISTERING AGENCY and shall be formatted in accordance with LOCAL ASSISTAI`
PROCEDURES.
6. Invoices must have at least one copy of supporting backup documentation for costs incu
and claimed for reimbursement by ADMINISTERING AGENCY. Acceptable bac
documentation includes, but is not limited to, agency's progress payment to the contract
copies of cancelled checks showing amounts made payable to vendors and contractors, and)
computerized summary of PROJECT costs.
7. Payments to ADMINISTERING AGENCY can only be released by STATE as reimbursemei
actual allowable PROJECT costs already incurred and paid for by ADMINISTERING AGENCY
8. An Indirect Cost Rate Proposal and Central Service Cost Allocation Plan and rel
documentation are to be provided to STATE (Caltrans Audits & Investigations) annually for re,
and approval prior to ADMINISTERING AGENCY seeking reimbursement of indirect cost incu
within each fiscal year being claimed for federal reimbursement.
9. Once PROJECT has been awarded, STATE reserves the right to de -obligate any exc
Federal Funds from the construction phase of PROJECT if the contract award amount is less
the obligated amount, as shown on the PROJECT E-76 or E-76 (AMOD).
10. STATE will withhold the greater of either two (2) percent of the total of all Federal F
encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGE
submits the Final Report of Expenditures for each completed PROGRAM SUPPLEM
PROJECT.
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11. The estimated total cost of PROJECT, the amount of Federal Funds obligated, and
required matching funds may be adjusted by mutual consent of the PARTIES hereto witt
finance letter, a detailed estimate, if required, and approved E-76 (AMOD). Federal -aid fundir
may be increased to cover PROJECT cost increases only if such funds are available and FH)
concurs with that increase.
12. When additional federal -aid funds are not available, ADMINISTERING AGENCY agrees tl
the payment of Federal Funds will be limited to the amounts authorized on the PROJECT spec
E-76 / E-76 (AMOD) and agrees that any increases in PROJECT costs must be defrayed w
ADMINISTERING AGENCY's own funds.
13. ADMINISTERING AGENCY shall use its own non -Federal Funds to finance the local share
eligible costs and all expenditures or contract items ruled ineligible for financing with Fed(
Funds. STATE shall make the determination of ADMINISTERING AGENCY's cost eligibility
federal fund financing of PROJECT costs.
14. ADMINISTERING AGENCY will reimburse STATE for STATE's share of costs for %
performed by STATE at the request of ADMINISTERING AGENCY. STATE's costs shall incli
overhead assessments in accordance with section 8755.1 of the State Administrative Manual.
15. Federal and state funds allocated from the State Transportation Improvement Program (S7
are subject to the timely use of funds provisions enacted by Senate Bill 45, approved in 1997,
subsequent STIP Guidelines and State procedures approved by the CTC and STATE.
16. Federal Funds encumbered for PROJECT are available for liquidation for a period of sever
years from the beginning of the State fiscal year the funds were appropriated in the State Bud
State funds encumbered for PROJECT are available for liquidation only for five (5) years from
beginning of the State fiscal year the funds were appropriated in the State Budget. Federz
state funds not liquidated within these periods will be reverted unless an Cooperative V
Agreement (CWA) is submitted by ADMINISTERING AGENCY and approved by the Califc
Department of Finance (per Government Code section 16304). The exact date of fund revere
will be reflected in the STATE signed finance letter for PROJECT.
17. Payments to ADMINISTERING AGENCY for PROJECT -related travel and subsistence
diem) expenses of ADMINISTERING AGENCY forces and its contractors and subcontrac
claimed for reimbursement or as local match credit shall not exceed rates authorized to be
rank and file STATE employees under current State Department of Personnel Administrc
(DPA) rules. If the rates invoiced by ADMINISTERING AGENCY are in excess of DPA rc
ADMINISTERING AGENCY is responsible for the cost difference, and any overpaym
inadvertently paid by STATE shall be reimbursed to STATE by ADMINISTERING AGENCY
demand within thirty (30) days of such invoice.
18. ADMINISTERING AGENCY agrees to comply with Office of Management and Budget (C
Circular A-87, Cost Principles for State and Local Governments, and 49 CFR, Part 18, Unif
Administrative Requirements for Grants and Cooperative Agreements to State and L
Governments.
19. ADMINISTERING AGENCY agrees, and will assure that its contractors and subcontractors
be obligated to agree that (a) Contract Cost Principles and Procedures, 48 CFR, Fed(
Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine
allowability of individual PROJECT cost items and (b) those parties shall comply with fed(
administrative procedures in accordance with 49 CFR, Part 18, . Uniform Administra
Requirements for Grants and Cooperative Agreements to State and Local Governments. Ev
sub -recipient receiving PROJECT funds as a contractor or sub -contractor under tt
AGREEMENT shall comply with Federal administrative procedures in accordance with 49 CI
Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to Si
and Local Governments.
20. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or cr
that are determined by subsequent audit to be unallowable under OMB Circular A-87, 48 Cf
Chapter 1, Part 31 or 49 CFR, Part 18, are subject to repayment by ADMINISTERING AGEN
to STATE. Should ADMINISTERING AGENCY fail to reimburse moneys due STATE within tt
30 days of demand, or within such other period as may be agreed in writing between
PARTIES hereto, STATE is authorized to intercept and withhold future payments
ADMINISTERING AGENCY from STATE or any third -parry source, including but not limited
the State Treasurer, the State Controller and the CTC.
21. Upon written demand by STATE, any overpayment to ADMINISTERING AGENCY of amok
invoiced to STATE shall be returned to STATE.
22. Should ADMINISTERING AGENCY fail to refund any moneys due STATE as provi
hereunder or should ADMINISTERING AGENCY breach this AGREEMENT by failing to comp
PROJECT without adequate justification and approval by STATE, then, within thirty 30 day
demand, or within such other period as may be agreed to in writing between the PART'
STATE, acting through the State Controller, the State Treasurer, or any other public entit
agency, may withhold or demand a transfer of an amount equal to the amount paid by or owe
STATE from future apportionments, or any other funds due ADMINISTERING AGENCY from
Highway Users Tax Fund or any other sources of funds, and/or may withhold approval of fL
ADMINISTERING AGENCY federal -aid projects.
23. Should ADMINISTERING AGENCY be declared to be in breach of this AGREEMEN'
otherwise in default thereof by STATE, and if ADMINISTERING AGENCY is constituted as a
powers authority, special district, or any other public entity not directly receiving funds through
State Controller, STATE is authorized to obtain reimbursement from whatever sources of fun
are available, including the withholding or transfer of funds, pursuant to Article IV - 22, from th
constituent entities comprising a joint powers authority or by bringing of an action ag;
ADMINISTERING AGENCY or its constituent member entities, to recover all funds provide)
STATE hereunder.
24. ADMINISTERING AGENCY acknowledges that the signatory party represents
ADMINISTERING AGENCY and further warrants that there is nothing within a Joint Po
Agreement, by which ADMINISTERING AGENCY was created, if any exists, that would restri
otherwise limit STATE's ability to recover State funds improperly spent by ADMINISTEF
AGENCY in contravention of the terms of this AGREEMENT.
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ARTICLE V
AUDITS, THIRD PARTY CONTRACTING, RECORDS RETENTION AND REPORTS
1. STATE reserves the right to conduct technical and financial audits of PROJECT work ,
records when determined to be necessary or appropriate and ADMINISTERING AGENCY agre
and shall require its contractors and subcontractors to agree, to cooperate with STATE by mal
all appropriate and relevant PROJECT records available for audit and copying as required
paragraph three (3) of ARTICLE V.
2. ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintair
accounting system and records that properly accumulate and segregate incurred PROJECT cc
and matching funds by line item for the PROJECT. The accounting system of ADMINISTERI
AGENCY, its contractors and all subcontractors shall conform to Generally Accepted Accoun
Principles, enable the determination of incurred costs at interim points of completion, and pro)
support for reimbursement payment vouchers or invoices sent to or paid by STATE.
3. For the purpose of determining compliance with Title 21, California Code of Regulati(
Chapter 21, section 2500 et seq., when applicable, and other matters connected with
performance of ADMINISTERING AGENCY's contracts with third parties, ADMINISTER
AGENCY, ADMINISTERING AGENCY's contractors and subcontractors, and STATE shall e
maintain and make available for inspection and audit all books, documents, papers, accour
records, and other evidence pertaining to the performance of such contracts, including, but
limited to, the costs of administering those various contracts. All of the above referenced pai
shall make such AGREEMENT and PROGRAM SUPPLEMENT materials available at i
respective offices at all reasonable times during the entire PROJECT period and for three
years from the date of final payment to ADMINISTERING AGENCY under any PROW
SUPPLEMENT. STATE, the California State Auditor, or any duly authorized representativ
STATE or the United States, shall each have access to any books, records, and documents
are pertinent to a PROJECT for audits, examinations, excerpts, and transactions
ADMINISTERING AGENCY shall furnish copies thereof if requested.
4. ADMINISTERING AGENCY is required to have an audit in accordance with the Single Audii
of OMB Circular A-133 if it receives a total of $500,000 or more in Federal Funds in a single fi
year. The Federal Funds received under a PROGRAM SUPPLEMENT are a part of
Catalogue of Federal Domestic Assistance (CFDA) 20.205, Highway Planning and Research.
5. ADMINISTERING AGENCY agrees to include all PROGRAM SUPPLEMENTS adopting
terms of this AGREEMENT in the schedule of projects to be examined in ADMINISTEF
AGENCY's annual audit and in the schedule of projects to be examined under its single <
prepared in accordance with OMB Circular A-133.
6. ADMINISTERING AGENCY shall not award a construction contract over $10,000 or c
contracts over $25,000 (excluding professional service contracts of the type which are requir(
be procured in accordance with Government Code sections 4525 (d), (e) and (f) on the basis
noncompetitive negotiation for work to be performed under this AGREEMENT without the
written approval of STATE. Contracts awarded by ADMINISTERING AGENCY, if intende
local match credit, must meet the requirements set forth in this AGREEMENT regarding
match funds.
1
7. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREEME
shall contain all of the provisions of ARTICLE IV, FISCAL PROVISIONS, and this ARTICLE
AUDITS, THIRD -PARTY CONTRACTING RECORDS RETENTION AND REPORTS, and sh
mandate that travel and per diem reimbursements and third -party contract reimbursements
subcontractors will be allowable as PROJECT costs only after those costs are incurred and p
for by the subcontractors.
8. To be eligible for local match credit, ADMINISTERING AGENCY must ensure that local ma
funds used for a PROJECT meet the fiscal provisions requirements outlined in ARTICLE IV in
same manner as required of all other PROJECT expenditures.
9. In addition to the above, the pre -award requirements of third -party contractor/consultants w
ADMINISTERING AGENCY should be consistent with LOCAL ASSISTANCE PROCEDURES.
v'i
ARTICLE VI -FEDERAL LOBBYING ACTIVITIES CERTIFICATION
1. By execution of this AGREEMENT, ADMINISTERING AGENCY certifies, to the best of
signatory officer's knowledge and belief, that:
A. No federal or state appropriated funds have been paid or will be paid, by or on behal
ADMINISTERING AGENCY, to any person for influencing or attempting to influence an offices
employee of any STATE or federal agency, a member of the State Legislature or United Sta
Congress, an officer or employee of the Legislature or Congress, or any employee of a Membe
the Legislature or Congress in connection with the awarding of any STATE or federal contra
including this AGREEMENT, the making of any STATE or federal loan, the entering into of
cooperative contract, and the extension, continuation, renewal, amendment, or modification of :
STATE or federal contract, grant, loan, or cooperative contract.
B. If any funds other than federal appropriated funds have been paid, or will be paid, to
person for influencing or attempting to influence an officer or employee of any federal agency
member of Congress, an officer or employee of Congress or an employee of a member
Congress in connection with this AGREEMENT, grant, local, or cooperative contr,
ADMINISTERING AGENCY shall complete and submit Standard Form-LLL, "Disclosure Form
Rep Lobbying," in accordance with the form instructions.
C. This certification is a material representation of fact upon which reliance was placed when
AGREEMENT and each PROGRAM SUPPLEMENT was or will be made or entered ii
Submission of this certification is a prerequisite for making or entering into this AGREEME
imposed by Section 1352, Title 31, United States Code. Any party who fails to file the requi
certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,1
for each such failure.
2. ADMINISTERING AGENCY also agrees by signing this AGREEMENT that the language of
certification will be included in all lower tier sub -agreements which exceed $100,000 and that
such sub -recipients shall certify and disclose accordingly.
ARTICLE VII - MISCELLANEOUS PROVISIONS
1. ADMINISTERING AGENCY agrees to use all State funds reimbursed hereunder only
transportation purposes that are in conformance with Article XIX of the California St
Constitution and the relevant Federal Regulations.
2. This AGREEMENT is subject to any additional restrictions, limitations, conditions, or any star
enacted by the State Legislature or adopted by the CTC that may affect the provisions, terms
funding of this AGREEMENT in any manner.
3. ADMINISTERING AGENCY and the officers and employees of ADMINISTERING AGENT
when engaged in the performance of this AGREEMENT, shall act in an independent capacity
not as officers, employees or agents of STATE or the federal government.
4. Each project -specific PROGRAM SUPPLEMENT shall separately establish the terms e
funding limits for each described PROJECT funded under the AGREEMENT. No federal or s'
funds are obligated against this AGREEMENT.
5. ADMINISTERING AGENCY certifies that neither ADMINISTERING AGENCY nor its princiE
are suspended or debarred at the time of the execution of this AGREEMENT. ADMINISTERI
AGENCY agrees that it will notify STATE immediately in the event a suspension or a debarn
occurs after the execution of this AGREEMENT.
6. ADMINISTERING AGENCY warrants, by execution of this AGREEMENT, that no persor
selling agency has been employed or retained to solicit or secure this AGREEMENT upor
agreement or understanding for a commission, percentage, brokerage, or contingent
excepting bona fide employees or bona fide established commercial or selling agen
maintained by ADMINISTERING AGENCY for the purpose of securing business. For breac
violation of this warranty, STATE has the right to annul this AGREEMENT without liability,
only for the value of the work actually performed, or in STATE's discretion, to deduct from
price of consideration, or otherwise recover, the full amount of such commission, percent,
brokerage, or contingent fee.
7. In accordance with Public Contract Code section 10296, ADMINISTERING AGENCY he
certifies under penalty of perjury that no more than one final unappealable finding of conteml
court by a federal court has been issued against ADMINISTERING AGENCY within the immec
preceding two (2) year period because of ADMINISTERING AGENCY's failure to comply wit
order of a federal court that orders ADMINISTERING AGENCY to comply with an order of
National Labor Relations Board.
8. ADMINISTERING AGENCY shall disclose any financial, business, or other relationship
STATE, FHWA or FTA that may have an impact upon the outcome of this AGREEME
ADMINISTERING AGENCY shall also list current contractors who may have a financial intere
the outcome of this AGREEMENT.
9. ADMINISTERING AGENCY hereby certifies that it does not now have nor shall it acquire
financial or business interest that would conflict with the performance of PROJECT under
AGREEMENT.
10. ADMINISTERING AGENCY warrants that this AGREEMENT was not obtained or secu
through rebates, kickbacks or other unlawful consideration either promised or paid to any STA
employee. For breach or violation of this warranty, STATE shall have the right, in its discretion
terminate this AGREEMENT without liability, to pay only for the work actually performed, of
deduct from the PROGRAM SUPPLEMENT price or otherwise recover the full amount of si
rebate, kickback, or other unlawful consideration.
11. Any dispute concerning a question of fact arising under this AGREEMENT that is not dispo!
of by agreement shall be decided by the STATE's Contract Officer who may consider any wril
or verbal evidence submitted by ADMINISTERING AGENCY. The decision of the Conti
Officer, issued in writing, shall be conclusive and binding on the PARTIES on all questions of
considered and determined by the Contract Officer.
12. Neither the pending of a dispute nor its consideration by the Contract Officer will exc
ADMINISTERING AGENCY from full and timely performance in accordance with the terms of
AGREEMENT.
13. Neither ADMINISTERING AGENCY nor any officer or employee thereof is responsible for
injury, damage or liability occurring by reason of anything done or omitted to be done by, undo
in connection with any work, authority or jurisdiction arising under this AGREEMENT. I
understood and agreed that STATE shall fully defend, indemnify and save harmless
ADMINISTERING AGENCY and all of its officers and employees from all claims, suits or acti
of every name, kind and description brought forth under, including, but not limited to, tortuc
contractual, inverse condemnation and other theories or assertions of liability occurring by rea
of anything done or omitted to be done by STATE under this AGREEMENT.
14. Neither STATE nor any officer or employee thereof shall be responsible for any injury, dam
or liability occurring by reason of anything done or omitted to be done by ADMINISTER
AGENCY under, or in connection with, any work, authority or jurisdiction arising under
AGREEMENT. It is understood and agreed that ADMINISTERING AGENCY shall fully deft
indemnify and save harmless STATE and all of its officers and employees from all claims, suit
actions of every name, kind and description brought forth under, including, but not limiter
tortuous, contractual, inverse condemnation or other theories or assertions of liability occurrin
reason of anything done or omitted to be done by ADMINISTERING AGENCY under
AGREEMENT.
15. STATE reserves the right to terminate funding for any PROJECT upon written notic
ADMINISTERING AGENCY in the event that ADMINISTERING AGENCY fails to proceed
PROJECT work in accordance with the project -specific PROGRAM SUPPLEMENT, the born
requirements if applicable, or otherwise violates the conditions of this AGREEMENT al
PROGRAM SUPPLEMENT, or the funding allocation such that substantial performanc
significantly endangered.
16. No termination shall become effective if, within thirty (30) days after receipt of a Notice
Termination, ADMINISTERING AGENCY either cures the default involved or, if not reasons
susceptible of cure within said thirty (30) day period, ADMINISTERING AGENCY procei
thereafter to complete the cure in a manner and time line acceptable to STATE. Any si
termination shall be accomplished by delivery to ADMINISTERING AGENCY of a Notice
Termination, which notice shall become effective not less than thirty (30) days after rece
specifying the reason for the termination, the extent to which funding of work under
AGREEMENT is terminated and the date upon which such termination becomes effective
beyond thirty (30) days after receipt. During the period before the effective termination d+
ADMINISTERING AGENCY and STATE shall meet to attempt to resolve any dispute. In the e%
of such termination, STATE may proceed with the PROJECT work in a manner deemed propel
STATE. If STATE terminates funding for PROJECT with ADMINISTERING AGENCY, STE
shall pay ADMINISTERING AGENCY the sum due ADMINISTERING AGENCY under
PROGRAM SUPPLEMENT and/or STATE approved finance letter prior to termination, provic
however, ADMINISTERING AGENCY is not in default of the terms and conditions of
AGREEMENT or the project -specific PROGRAM SUPPLEMENT and that the cost of PROJE
completion to STATE shall first be deducted from any sum due ADMINISTERING AGENCY.
17. In case of inconsistency or conflicts with the terms of this AGREEMENT and that of a proj(
specific PROGRAM SUPPLEMENT, the terms stated in that PROGRAM SUPPLEMENT E
prevail over those in this AGREEMENT.
18. Without the written consent of STATE, this AGREEMENT is not assignable
ADMINISTERING AGENCY either in whole or in part.
19. No alteration or variation of the terms of this AGREEMENT shall be valid unless mad
writing and signed by the PARTIES, and no oral understanding or agreement not incorpon
herein shall be binding on any of the PARTIES.
IN WITNESS WHEREOF, the PARTIES have executed this AGREEMENT by their
authorized officers.
STATE OF CALIFORNIA City of La Quints
DEPARTMENT OF TRANSPORTATION
Chief, Office of Project Implementation
Division of Local Assistance
City of La Quinta
Representative Name & Title
(Authorized Governing Body Representativ(
Date Date
EXHIBIT A
FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of this Agreement, ADMINISTERING AGENCY will not discriminate agai
any employee for employment because of race, color, sex, sexual orientation, religion, ancestry
national origin, physical disability, medical condition, marital status, political affiliation, family
medical care leave, pregnancy leave, or disability leave. ADMINISTERING AGENCY will ti
affirmative action to ensure that employees are treated during employment without regard to tt
race, sex, sexual orientation, color, religion, ancestry, or national origin, physical disability, med
condition, marital status, political affiliation, family and medical care leave, pregnancy leave.
disability leave. Such action shall include, but not be limited to, the following: employmi
upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; re
of pay or other forms of compensation; and selection for training, including apprentices)
ADMINISTERING AGENCY shall post in conspicuous places, available to employees
employment, notices to be provided by STATE setting forth the provisions of this Fair Employrr
section.
2. ADMINISTERING AGENCY, its contractor(s) and all subcontractors shall comply with
provisions of the Fair Employment and Housing Act (Government Code Section 1290-0 et sei
and the applicable regulations promulgated thereunder (California code of Regulations, Titl(
Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Hou:
Commission implementing Government Code, Section 12900(a-f), set forth in Chapter 5
Division 4 of Title 2 of the California Code of Regulations are incorporated into this AGREEME
by reference and made a part hereof as if set forth in full. Each of the ADMINISTERI
AGENCY'S contractors and all subcontractors shall give written notice of their obligations ur
this clause to labor organizations with which they have a collective bargaining or o
agreements, as appropriate.
3. ADMINISTERING AGENCY shall include the nondiscrimination and compliance provision
this clause in all contracts and subcontracts to perform work under this AGREEMENT.
4. ADMINISTERING AGENCY will permit access to the records of employment, employn
advertisements, application forms, and other pertinent data and records by STATE, the State
Employment and Housing Commission, or any other agency of the State of California designi
by STATE, for the purposes of investigation to ascertain compliance with the Fair Employn
section of this Agreement.
5. Remedies for Willful Violation:
(a) STATE may determine a willful violation of the Fair Employment provision to have occu
upon receipt of a final judgment to that effect from a court in an action to which ADMINISTER
AGENCY was a party, or upon receipt of a written notice from the Fair Employment and Hou
Commission that it has investigated and determined that ADMINISTERING AGENCY has viol
the Fair Employment Practices Act and had issued an order under Labor Code Section 1
which has become final or has obtained an injunction under Labor Code Section 1429.
(b) For willful violation of this Fair Employment Provision, STATE shall have the right to termin
this Agreement either in whole or in part, and any loss or damage sustained by STATE in secur
the goods or services thereunder shall be borne and paid for by ADMINISTERING AGENCY
by the surety under the performance bond, if any, and STATE may deduct from any moneys c
or thereafter may become due to ADMINISTERING AGENCY, the difference between the pi
named in the Agreement and the actual cost thereof to STATE to cure ADMINISTERII
AGENCY's breach of this Agreement.
�'i:11E3�t:3
NONDISCRIMINATION ASSURANCES
ADMINISTERING AGENCY HEREBY AGREES THAT, as a condition to receiving any fed
financial assistance from the STATE, acting for the U.S. Department of Transportation, it
comply with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-42 U.S
2000d-4 (hereinafter referred to as the ACT), and all requirements imposed by or pursuant to T
49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of
Secretary, Part 21, "Nondiscrimination in Federally -Assisted Programs of the Department
Transportation - Effectuation of Title VI of the Civil Rights Act of 1964" (hereinafter referred to
the REGULATIONS), the Federal -aid Highway Act of 1973, and other pertinent directives, to
end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no perso
the United States shall, on the grounds of race, color, sex, national origin, religion, age
disability, be excluded from participation in, be denied the benefits of, or be otherwise subjecte,
discrimination under any program or activity for which ADMINISTERING AGENCY rece
federal financial assistance from the Federal Department of Transportation. ADMINISTERI
AGENCY HEREBY GIVES ASSURANCE THAT ADMINISTERING AGENCY will promptly t
any measures necessary to effectuate this agreement. This assurance is required by subsec
21.7(a) (1) of the REGULATIONS.
More specifically, and without limiting the above general assurance, ADMINISTERING AGED
hereby gives the following specific assurances with respect to its federal -aid Program:
1. That ADMINISTERING AGENCY agrees that each "program" and each "facility" as define
subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a "progrc
conducted, or will be (with regard to a "facility") operated in compliance with all requirem
imposed by, or pursuant to, the REGULATIONS.
2. That ADMINISTERING AGENCY shall insert the following notification in all solicitations for
for work or material subject to the REGULATIONS made in connection with the federal
Program and, in adapted form, in all proposals for negotiated agreements:
ADMINISTERING AGENCY hereby notifies all bidders that it will affirmatively insure that in
agreement entered into pursuant to this advertisement, minority business enterprises wil
afforded full opportunity to submit bids in response to this invitation and will not be discrimin
against on the grounds of race, color, sex, national origin, religion, age, or disabilit
consideration for an award.
3. That ADMINISTERING AGENCY shall insert the clauses of Appendix A of this assuranc
every agreement subject to the ACT and the REGULATIONS.
4. That the clauses of Appendix B of this Assurance shall be included as a covenant running
the land, in any deed effecting a transfer of real property, structures, or improvements thereo
interest therein.
5. That where ADMINISTERING AGENCY receives federal financial assistance to construc
facility, or part of a facility, the Assurance shall extend to the entire facility and facilities operate(
connection therewith.
6. That where ADMINISTERING AGENCY receives federal financial assistance in the form, or
the acquisition, of real property or an interest in real property, the Assurance shall extend to ric
to space on, over, or under such property.
7. That ADMINISTERING AGENCY shall include the appropriate clauses set forth in Appendi
and D of this Assurance, as a covenant running with the land, in any future deeds, leases, perry
licenses, and similar agreements entered into by the ADMINISTERING AGENCY with of
parties:
Appendix C;
(a) for the subsequent transfer of real property acquired or improved under the federal -
Program; and
Appendix D;
(b) for the construction or use of or access to space on, over, or under real property acquirec
improved under the federal -aid Program.
8. That this assurance obligates ADMINISTERING AGENCY for the period during which fed
financial assistance is extended to the program, except where the federal financial assistance i
provide, or is in the form of, personal property or real property or interest therein, or structure:
improvements thereon, in which case the assurance obligates ADMINISTERING AGENCY or
transferee for the longer of the following periods:
(a) the period during which the property is used for a purpose for which the federal final
assistance is extended, or for another purpose involving the provision of similar service
benefits; or
(b) the period during which ADMINISTERING AGENCY retains ownership or possession o1
property.
9. That ADMINISTERING AGENCY shall provide for such methods of administration for
program as are found by the U.S. Secretary of Transportation, or the official to whom he deleg
specific authority, to give reasonable guarantee that ADMINISTERING AGENCY, other recipif
sub -grantees, applicants, sub -applicants, transferees, successors in interest, and of
participants of federal financial assistance under such program will comply with all requirem
imposed by, or pursuant to, the ACT, the REGULATIONS, this Assurance and the Agreement,
10. That ADMINISTERING AGENCY agrees that the United States and the State of Calif(
have a right to seek judicial enforcement with regard to any matter arising under the ACT
REGULATIONS, and this Assurance.
11. ADMINISTERING AGENCY shall not discriminate on the basis of race, religion, age, disabil
color, national origin or sex in the award and performance of any STATE assisted contract of
the administration on its DBE Program or the requirements of 49 CFR Part 26. ADMINISTERII
AGENCY shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure r
discrimination in the award and administration of STATE assisted contracts. ADMINISTERI
AGENCY'S DBE Race -Neutral Implementation Agreement is incorporated by reference in tl
AGREEMENT. Implementation of this program is a legal obligation and failure to carry out
terms shall be treated as a violation of this agreement. Upon notification to the recipient of
failure to carry out its approved DBE Race -Neutral Implementation Agreement, STATE rr
impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer
matter for enforcement under 18 USC 1001 and/or the Program Fraud Civil Remedies Act of 1!
(31 USC 3801 es seq.)
THESE ASSURANCES are given in consideration of and for the purpose of obtaining any anc
federal grants, loans, agreements, property, discounts or other federal financial assistai
extended after the date hereof to ADMINISTERING AGENCY by STATE, acting for the l
Department of Transportation, and is binding on ADMINISTERING AGENCY, other recipie
subgrantees, applicants, sub -applicants, transferees, successors in interest and other participa
in the federal -aid Highway Program.
APPENDIX A TO EXHIBIT B
During the performance of this Agreement, ADMINISTERING AGENCY, for itself, its assign
and successors in interest (hereinafter collectively referred to as ADMINISTERING AGEN(
agrees as follows:
(1) Compliance with Regulations: ADMINISTERING AGENCY shall comply with the regulati
relative to nondiscrimination in federally assisted programs of the Department of Transportat
Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to tii
(hereinafter referred to as the REGULATIONS), which are herein incorporated by reference
made a part of this agreement.
(2) Nondiscrimination: ADMINISTERING AGENCY, with regard to the work performed by it du
the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national on
religion, age, or disability in the selection and retention of sub -applicants, including procureme
of materials and leases of equipment. ADMINISTERING AGENCY shall not participate ei'
directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIO
including employment practices when the agreement covers a program set forth in Appendix I
the REGULATIONS.
(3) Solicitations for Sub -agreements, Including Procurements of Materials and Equipment: In
solicitations either by competitive bidding or negotiation made by ADMINISTERING AGENCY
work to be performed under a Sub -agreement, including procurements of materials or lease:
equipment, each potential sub -applicant or supplier shall be notified by ADMINISTERI
AGENCY of the ADMINISTERING AGENCY's obligations under this Agreement and
REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin.
(4) Information and Reports: ADMINISTERING AGENCY shall provide all information and rer
required by the REGULATIONS, or directives issued pursuant thereto, and shall permit acce:
ADMINISTERING AGENCY's books, records, accounts, other sources of information, an(
facilities as may be determined by STATE or FHWA to be pertinent to ascertain compliance
such REGULATIONS or directives. Where any information required of ADMINISTEF
AGENCY is in the exclusive possession of another who fails or refuses to furnish this informa
ADMINISTERING AGENCY shall so certify to STATE or the FHWA as appropriate, and shal
forth what efforts ADMINISTERING AGENCY has made to obtain the information.
(5) Sanctions for Noncompliance: In the event of ADMINISTERING AGENCY's noncompli(
with the nondiscrimination provisions of this agreement, STATE shall impose such agreer
sanctions as it or the FHWA may Aetermine to be appropriate, including, but not limited to:
(a) withholding of payments to ADMINISTERING AGENCY under the Agreement with
reasonable period of time, not to exceed 90 days; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part
0J
(6) Incorporation of Provisions: ADMINISTERING AGENCY shall include the provisions
paragraphs (1) through (6) in every sub -agreement, including procurements of materials a
leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant then
ADMINISTERING AGENCY shall take such action with respect to any sub -agreement
procurement as STATE or FHWA may direct as a means of enforcing such provisions incluc
sanctions for noncompliance, provided, however, that, in the event ADMINISTERING AGEN
becomes involved in, or is threatened with, litigation with a sub -applicant or supplier as a result
such direction, ADMINISTERING AGENCY may request STATE enter into such litigation
protect the interests of STATE, and, in addition, ADMINISTERING AGENCY may request
United States to enter into such litigation to protect the interests of the United States.
I .: • . ■ WIN
The following clauses shall be included in any and all deeds effecting or recording the transfe
PROJECT real property, structures or improvements thereon, or interest therein from the Uni
States.
(GRANTING CLAUSE)
NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon
condition that ADMINISTERING AGENCY will accept title to the lands and maintain the pro
constructed thereon, in accordance with Title 23, United States Code, the Regulations for
Administration of federal -aid for Highways and the policies and procedures prescribed by
Federal Highway Administration of the Department of Transportation and, also in accordance 1
and in compliance with the Regulations pertaining to and effectuating the provisions of Title 'v
the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d to 2000d-4), does hereby remi
release, quitclaim and convey unto the ADMINISTERING AGENCY all the right, title, and inte
of the U.S. Department of Transportation in, and to, said lands described in Exhibit "A" attac
hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto ADMINISTERING AGENCY
its successors forever, subject, however, to the covenant, conditions, restrictions and reservatl
herein contained as follows, which will remain in effect for the period during which the
property or structures are used for a purpose for which federal financial assistance is extende
for another purpose involving the provision of similar services or benefits and shall be bindinc
ADMINISTERING AGENCY, its successors and assigns.
ADMINISTERING AGENCY, in consideration of the conveyance of said lands and interes
lands, does hereby covenant and agree as a covenant running with the land for itself
successors and assigns,
(1) that no person shall on the grounds of race, color, sex, national origin, religion, agi
disability, be excluded from participation in, be denied the benefits of, or be otherwise subjectE
discrimination with regard to any facility located wholly or in part on, over, or under such IC
hereby conveyed (;) (and) *
(2) that ADMINISTERING AGENCY shall use the lands and interests in lands so conveyer
compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulati
Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discriminatio
federally -assisted programs of the Department of Transportation - Effectuation of Title VI of
Civil Rights Act of 1964, and as said Regulations may be amended (;) and
(3) that in the event of breach of any of the above -mentioned nondiscrimination conditions,
U.S. Department of Transportation shall have a right to re-enter said lands and facilities on
land, and the above -described land and facilities shall thereon revert to and vest in and beci
the absolute property of the U.S. Department of Transportation and its assigns as such intf
existed prior to this deed.*
* Reverter clause and related language to be used only when it is determined that such a clau
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
APPENDIX C TO EXHIBIT B
The following clauses shall be included in any and all deeds, licenses, leases, permits, or sin
instruments entered into by ADMINISTERING AGENCY, pursuant to the provisions of Assura
7(a) of Exhibit B.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, pers,
representatives, successors in interest, and assigns, as a part of the consideration hereof, d
hereby covenant and agree (in the case of deeds and leases add "as covenant running with
land") that in the event facilities are constructed, maintained, or otherwise operated on the
property described in this (deed, license, lease, permit, etc.) for a purpose for which a t
Department of Transportation program or activity is extended or for another purpose involving
provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), s
maintain and operate such facilities and services in compliance with all other requirem(
imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportat
Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally -assisted programs of
Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as s
Regulations may be amended.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTER
AGENCY shall have the right to terminate the (license, lease, permit etc.) and to re-enter ,
repossess said land and the facilities thereon, and hold the same as if said (license, lease, pei
etc.) had never been made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTER
AGENCY shall have the right to re-enter said land and facilities thereon, and the abo,
described lands and facilities shall thereupon revert to and vest in and become the absc
property of ADMINISTERING AGENCY and its assigns.
* Reverter clause and related language to be used only when it is determined that such a clau
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
APPENDIX D TO EXHIBIT B
The following shall be included, in all deeds, licenses, leases, permits, or similar agreemf
entered into by the ADMINISTERING AGENCY, pursuant to the provisions of Assurance 7 (b
Exhibit B.
The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his perE
representatives, successors in interest and assigns, as a part of the consideration hereof, d
hereby covenant and agree (in the case of deeds, and leases add "as a covenant running with
land") that:
(1) no person on the ground of race, color, sex, national origin, religion, age or disability, shal
excluded from participation in, denied the benefits of, or otherwise subjected to discriminatio
the use of said facilities;
(2) that in the construction of any improvements on, over, or under such land and the furnishin
services thereon, no person on the ground of race, color, sex, national origin, religion, ag(
disability shall be excluded from participation in, denied the benefits of, or otherwise be subjec
to discrimination; and
(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance
the Regulations.
(Include in licenses, leases, permits, etc.)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTER
AGENCY shall have the right to terminate the (license, lease, permit, etc.) and to re-enter
repossess said land and the facilities thereon, and hold the same as if said (license, lease, pei
etc.) had never been made or issued.
(Include in deeds)*
That in the event of breach of any of the above nondiscrimination covenants, ADMINISTEF
AGENCY shall have the right to re-enter said land and facilities thereon, and the abo
described lands and facilities shall thereupon revert to and vest in and become the abs(
property of ADMINISTERING AGENCY, and its assigns.
* Reverter clause and related language to be used only when it is determined that such a clau
necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.
G9
SUPPLEMENT NO. N006
to
'TERING AGENCY -STATE AGREEMENT
FERAL -AID PROJECTS NO. 08-54331Z
Date:October 31, 2006 ATTACHr
Location: 08-RIV-0-LQNT
Project Number:STPL-5433(007)
E.A. Number:08-924943
am Supplement hereby incorporates the Administering Agency -State Agreement for Federal Aid which was entered into
ie Administering Agency and the State on / / and is subject to all the terms and conditions thereof. This Program
it is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No.
, approved by the Administering Agency on (See copy attached).
nistering Agency further stipulates that as a condition to the payment by State of any funds derived from sources noted
gated to this project, the Administering Agency accepts and will comply with the Special covenants or Remarks setforth
owing pages.
LOCATION:
I lanes of 54th Avenue from Jefferson Street to Madison Street
r WORK: Road rehabilitation
LENGTH: 1(HILM
Lted Cost
Federal Funds
Hatching Funds
$555,881.00
L240 $228,523.00
LOCAL
$327,358.00
$0.00
OTHER
$0
r LA QUINTA
STATE OF CALIFORNIA
Department of Transportation
BY
Chief, Office of Project Implements.ti
Division of Local Assistance
Date
a
y certify upon my persosal haouledge that budgeted funds are availableforthis encumbrance:
sting Officer Date 1?id/Ul„ $228,523
8tatutas Item Year Program SC I Category Fund Source AMOUNT
2005 2660-102-890 2005-2006 20.30.010.810 C 262040 892-F 228,523.01
Program Supplement 08-5433-M006- ISTEA cs�
RIV-0-LONT 11/07/2006
'L-5433(007)
SPECIAL COVENANTS OR REMARKS
The ADMINISTERING AGENCY will advertise, award and administer this project in
accordance with the current published Local Assistance Procedures Manual.
Award information shall be submitted by the ADMINISTERING AGENCY to the District
Local Assistance Engineer within 60 days after the project contract award. A copy of the
award package shall also be included with the submittal of the ADMINISTERING
AGENCY's first invoice for the construction contract to:
Department of Transportation
Division of Accounting
Local Programs Accounting Branch, MS #33
P. O. Box 942874
Sacramento, CA 94274-0001.
Failure to do so will cause a delay in the State processing invoices for the construction
phase. Please refer to Section 15.7 "Award Package" of the Local Assistance
Procedures Manual.
ADMINISTERING AGENCY agrees that it will only proceed with work authorized for
specific phase(s) with an "Authorization to Proceed" and will not proceed with future
phase(s) of this project prior to receiving an "Authorization to Proceed" from the STATE
for that phase(s) unless no further State or Federal funds are needed for those future
phase(s).
Any State and Federal funds that may have been encumbered for this project are only
available for disbursement for a period of five (5) years and seven (7) years, respectively,
from the start of the fiscal year(s) that those funds were appropriated within the State
Budget Act. All project funds not liquidated within these periods will revert unless an
executed Cooperative Work Agreement extending these dates is requested and is
approved by the California Department of Finance per Government Code Section 16304.
The exact date of each fund reversion will be reflected in the approved finance letter(s)
issued for this project.
Notwithstanding the unliquidated sums of project specific State and Federal funding
remaining and available to fund project work, any invoice for reimbursement that is not
submitted to the Department on or before 60 days after that applicable fixed fund
reversion date will not be paid from that fiscal year's encumbered funds because all of
these unexpended funds will be irrevocably reverted by the Department's Division of
Accounting on that date.
Pursuant to a directive from the State Controller's Office and the Department of Finance,
the last date to submit invoices for reimbursed work in each fiscal year is May 15th in
order for payment to be made out of those then current appropriations. Project work
performed and invoiced after May 15th will be reimbursed only out of available funding
that might be encumbered in the subsequent fiscal year, and then only when those funds
Program Supplement 08-5433R-N006- ISTEA " ` 0 g
HIV-0-LUNT
)L-5433(007)
SPECIAL COVENANTS OR REMARKS
11/07/2006
are actually allocated and encumbered as authorized by the California Transportation
Commission and the Department's Accounting Office.
ADMINISTERING AGENCY agrees, as a minimum, to submit invoices at least once every
six months commencing after the funds are encumbered for each phase by the execution
of this Project Program Supplement Agreement, or by STATE's approval of an applicable
Finance Letter. STATE reserves the right to suspend future authorizations/obligations,
and invoice payments for any on -going or future federal -aid project by ADMINISTERING
AGENCY if PROJECT costs have not been invoiced by ADMINISTERING AGENCY for a
six-month period.
If no costs have been invoiced for a six-month period, ADMINISTERING AGENCY
agrees to submit for each phase a written explanation of the absence of PROJECT
activity along with target billing date and target billing amount.
ADMINISTERING AGENCY agrees to submit the final report documents that collectively
constitute a "Report of Expenditures° within one hundred eighty (180) days of PROJECT
completion. Failure of ADMINISTERING AGENCY to submit a "Final Report of
Expenditures" within 180 days of PROJECT completion will result in STATE imposing
sanctions upon ADMINISTERING AGENCY in accordance with the current Local
Assistance Procedures Manual.
Program Supplement 08-5433R-N006- ISTEA
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Acceptance of On -Site Improvements
Associated with Tract Map No. 29457-1, Rancho La
Quinta, T.D. Desert Development
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
i 711:311Ti1:1II:�:i1►Le�
Accept on -site improvements associated with Tract Map No. 29457-1, Rancho La
Quinta, T.D. Desert Development and authorize staff to release performance securities
upon receipt of warranty securities.
FISCAL IMPLICATIONS:
None. No public improvements will be accepted with this action.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Tract Map No. 29457-1, Rancho La Quinta, is located on the southeast corner of
Avenue 48 and Washington Street (please see Attachment 1). All obligations of the
Subdivision Improvement Agreement and the Conditions of Approval have been
satisfied. Attachment 2 indicates the amount of warranty security.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Accept the on -site improvements associated with Tract Map No.
29457-1, Rancho La Quinta, T.D. Desert Development and authorize
staff to release performance securities upon receipt of warranty
securities; or
2. Do not accept the on -site improvements associated with Tract Map No.
29457-1, Rancho La Quinta, T.D. Desert Development and do not
authorize staff to release performance securities upon receipt of warranty
securities; or
3. Provide staff with alternative direction.
Respectfully submitted,
1
Tin othy R. Jo so
r, .E.
ONic Works rect City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachments: 1. Vicinity Map
2. Warranty Security
F 9 1
ATTACHMENT -1
TRACT MAP No. 29457-1
RANCHO LA QUINTA
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EISENH WN RANCHO
DRIVE QUINTA
MISSION OR.
SITE-
50TH AVENUE
VICINITY MAP
NOT TO SCALE
CITY COUNCIL MEETING: December 5, 2006
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ITEM TITLE: Acceptance of Off -site Improvements Associated with Tract Map No.
29457-1, Rancho La Quinta
APPLICANT: T.D. Desert Development
ATTACHMENT - 2
TRACT MAP No. 29457-1
RANCHO LA QUINTA
ON -SITE IMPROVEMENTS
ON -SITE IMPROVEMENTS
Performance Security'
Improvement Description
Labor &
MaterialsZ
Current
Amount
Proposed
Reduction
WARRANTY
AMOUNTS
Grading
$35,310
$35,310
90%
$3,531
Street and Drainage Improvements
$313,673
$313,673
90%
$31,367
Domestic Water
$260,860
$260,860
90%
$26,086
Sanitary Sewer
$149,400
$149,400
90%
$14,940
Underground Electric
$292,500
$292,500
1 90%
$29,250
Monumentation
$0
$15,000
1 100%
$0
Totals
$1,051,743
$1,066,743
—
$105,174
WARRANTY SECURITY
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of On -site Improvements Associated with Tract Map No.
29457-1, Rancho La Quinta
APPLICANT: T.D. Desert Development
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Acceptance of On -Site Improvements
Associated with Tract Map No. 30487, Santa Rosa
Trails, Santa Rosa Trails, LLC
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION: _
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Accept on -site improvements associated with Tract Map No. 30487, Santa Rosa
Trails, Santa Rosa Trails, LLC and authorize staff to release performance securities
upon receipt of warranty securities.
FISCAL IMPLICATIONS:
None. No public improvements will be accepted with this action.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Tract Map No. 30487, Santa Rosa Trails, is located on the north side of Avenue 58
approximately %of a mile to the west of Madison Street (please see Attachment 1).
All obligations of the Subdivision Improvement Agreement and the Conditions of
Approval have been satisfied. Attachment 2 indicates the amount of warranty
security.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1 . Accept the on -site improvements associated with Tract Map No. 30487,
Santa Rosa Trails, Santa Rosa Trails, LLC and authorize staff to release
performance securities upon receipt of warranty securities; or
2. Do not accept the on -site improvements associated with Tract Map No.
30487, Santa Rosa Trails, Santa Rosa Trails, LLC and do not authorize
staff to release performance securities upon receipt of warranty
securities; or
3. Provide staff with alternative direction.
Respectfully submitted,
r
othy R. ass P.E.
Public Worko irec /City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachments: 1 . Vicinity Map
2. Warranty Security
ATTACHMENT-1
"TRACT 30487 - SANTA ROSA TRAILS
l
w
a
CgY OF
Z LA OUINTA W
o �
AIRPORT BLVD.
PROJECT
58th AVE.
VICINITY MAP
NOT TO SCALE
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of On -site Improvements Associated with Tract Map No.
./ .: 30487, Santa Rosa Trails
APPLICANT: Santa Rosa Trails, LLC
1
ATTACHMENT - 2
TRACT MAP No. 30487
SANTA ROSA TRAILS
ON -SITE IMPROVEMENTS
ON -SITE IMPROVEMENTS
Performance Security'
Improvement Description
Labor &
Materials?
Current
Amount
Proposed
Reduction
WARRANTY
AMOUNT
Grading
$74,900
$74,900
90%
$7,490
Streets
$115,596
$115,596
90%
$11,560
Domestic Water
$51,350
$51,350
90%
$5,135
Sanitary Sewer
$58,850
$58,850
90%
$5,885
Storm Drain
$35,176
$35,176
90%
$3,518
Utilities
$13,080
$13,080
90%
$1,308
Monumentation
$5,000
$5,000
100%
$0
Standard Contingency 10%
$42,474
$42,474
100%
$0
Professional Fees, Construction 10%
$35,395
$35,395
100%
$0
No Plans Contigency 25%
$35,395
$35,395
100%
$0
Totalsl
$467,216
$467,216
—
$34,895
WARRANTY SECURITY
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of On -site Improvements Associated with Tract Map No.
30487, Santa Rosa Trails
APPLICANT: Santa Rosa Trails, LLC
Titf 4 4v Q"
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Acceptance of Off -Site Improvements
Associated with Tract Map No. 30487, Santa Rosa
Trails, Santa Rosa Trails, LLC
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION: p
CONSENT CALENDAR: S
STUDY SESSION:
PUBLIC HEARING:
Accept the off -site improvements associated with Tract Map No. 30487, Santa Rosa
Trails, Santa Rosa Trails, LLC and authorize staff to release performance securities
upon receipt of warranty securities. The Labor & Material security will remain in place
for 90 days after City Council acceptance of the off -site improvements.
FISCAL IMPLICATIONS:
The public improvements to be dedicated with this project include the street
improvements necessary to widen Avenue 58 along the project perimeter. The Public
Works Maintenance Division budget for next fiscal year will be increased to cover the
additional street sweeping and other maintenance costs for these improvements.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Tract Map No. 30487, Santa Rosa Trails, is located on the north side of Avenue 58
approximately %of a mile to the west of Madison Street (please see Attachment 1).
The off -site improvements include curb & gutter, sidewalk, curb ramps, signing,
striping, and asphalt concrete pavement. All obligations of the Subdivision
Improvement Agreement and the Conditions of Approval have been satisfied.
Attachment 2 indicates the amount of warranty security.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1 . Accept the off -site improvements associated with Tract Map No. 30487,
Santa Rosa Trails, Santa Rosa Trails, LLC and authorize staff to release
performance securities upon receipt of warranty securities and release
Labor & Material security 90 days after City Council acceptance; or
2. Do not accept the off -site improvements associated with Tract Map No.
30487, Santa Rosa Trails, Santa Rosa Trails, LLC and do not authorize
staff to release performance securities upon receipt of warranty securities
and not release Labor & Material security 90 days after City Council
acceptance; or
3. Provide staff with alternative direction.
Respectfully submitted,
T othy R. on ss P.E.
ublic Work ire or/City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachments: 1. Vicinity Map
2. Warranty Security
M
ATTACHMENT-1
TRACT 30487 - SANTA ROSA TRAILS
uj
w
CITY OF
z LA OUI TA w
AIRPORT BLVD.
PROJECT
13 58th AVE,
VICINITY MAP
NOT TO SCALE
CITY COUNCIL MEETING: December 5, 2006
�q
bap ITEM TITLE: Acceptance of Off -site Improvements Associated with Tract Map No.
30487, Santa Rosa Trails
�i APPLICANT: Santa Rosa Trails, LLC
10
ATTACHMENT - 2
TRACT MAP No. 30487
SANTA ROSA TRAILS
OFF -SITE IMPROVEMENTS
OFF -SITE IMPROVEMENTS
Performance Security'
Improvement Description
Labor &
Materials2
Current
Amount
Proposed
Reduction
WARRANTY
AMOUNT
Landscaping
$15,000
$15,000
90%
$1,500
Streets
$58,098
$58,098
90%
$5,810
Domestic Water
$54,170
$54,170
90%
$5,417
Sanitary Sewer
$39,050
$39,050
90%
$3,905
Perimeter Garden Wall
$120,000
$120,000
90%
$12,000
Sidewalk
$3,462
$3,462
90%
$346
Professional Fees, Construction 10%
$28,978
$28,978
100%
$0
Standard Contigency 10%
$31,876
$31,876
100%
$0
Totals
$350,634
$350,634
--
$28,978
WARRATS
Y SECURITY
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of Off -site Improvements Associated with Tract Map No.
30487, Santa Rosa Trails
APPLICANT: Santa Rosa Trails, LLC
Fy OF TRH
AGENDA CATEGORY:
COUNCIL/RDA MEETING DATE: December 5, 2006
BUSINESS SESSION:
ITEM TITLE: Approval of Annual District Information CONSENT CALENDAR:
Sheets for the City of La Quinta Assessment District
Nos. 92-1 and 97-1 for Fiscal Year End June 30, STUDY SESSION:
2006
PUBLIC HEARING:
RECOMMENDATION:
Approve, receive and file the Annual District Information Sheets for the City of La
Quinta Assessment District Nos. 92-1 and 97-1 for Fiscal Year End June 30, 2006
(Attachment 1).
FISCAL IMPLICATIONS:
None.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
In an effort to monitor the condition of the City-wide Assessment Districts and to
report to the investment community the status of the City Assessment Districts,
district information sheets have been prepared.
Based upon staff review of the Disclosure Information Sheets and based upon
discussions with MuniFinancial, who prepared the documents, adequate reserves
are available to meet debt service payments for the Fiscal Year 2005/06.
��r
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Approve, receive and file the Annual District Information Sheets for the City
of La Quinta Assessment District Nos. 92-1 and 97-1 for Fiscal Year End
June 30, 2006; or
1. Do not approve, receive and file the District Information Sheets for the City
of La Quinta Assessment District Nos. 92-1 and 97-1 for Fiscal Year End
June 30, 2006; or
2. Provide staff with alternative direction.
Respectfully submitted,
c)G ..N 14t in, Qr1n..+
John M. Falcone?, Fi ance Director
Approved for submission by:
C;
Thomas P. Genovese, City Manager
Attachment: 1. 2005/06 District Information Sheets for the City of La Quinta
Assessment District Nos. 92-1 and 97-1
A I I AW1111fICl
District Information Sheet
ssessment District No. 92-1
ity of La Quints, Riverside, CA
iOND STATUS
of 11/15/2006
Outstanding Principal: $240,000.00
Annual Debt Service For Amount
2006 $ 128,900.00
2007 $ 127,960.00
IISTRICT STATUS
No. of
Fiscal
Amount
Percent
Parcels
Range of Annual Assessments
Year Assessment
Delinquent
Delinquent
Delinquent
for Fiscal Year 2006107
2004/05 $154,700.92
$2,984.35
1.93%
16
Highest Annual Assessment Per Parcel:
$1,973.94
2005106 $158,926.34
$6,973.17
4.39%
41
Lowest Annual Assessment Per Parcel:
$1.72
Average Annual Assessment Per Parcel:
$164.31
3OND SUMMARY INFORMATION
)riginal Issue Amount (Par) $1,880,891.50 Final Maturity: September 2, 2008
)ate of Issuance September 1, 1993 Bond Call Notice (days) 30
:oupon Payment Dates March 2, September 2
DISTRICT SUMMARY INFORMATION
)verall Assessed Value / Lien Ratio 733.18 Total Assessed Improvements $171,817,522.00
"otal Assessed Value $229,015,456.00 Total Assessed Land $57,197,934.00
"ype of Improvements Storm drains, streets, water
4CTIVE PARCEL INFORMATION
is of 06/30/06
Number
Percentage of
Percentage of Annual
Category
of Parcels
Total Parcels
Assessment
Improved Parcels
863
93.91 %
93.55 0
6.45%
Unimproved Parcels
56
919
6.09 %
100.00 %
100.00%
Total
FUND BALANCE INFORMATION
Fund
As of Date
Balance
Type of Investment
Funds Administered By
Redemption Fund
September 30, 2006
$30,256.40
N/A
N/A
Held By City
Held By City
Reserve Fund
September 30, 2006
$149,832.35
Approx. Reserve Requirement: $131,750.00
All assessed values are based on data obtained from the applicable county. The information pertaining to the District and its underlying security he
e, but is not
teed as
or
reformation is not in ended to be,l and should not beliconstrued as, an eeved to be lndorsement of chnsecurity noor a recommendation completeness. from sources endat oto purchase, sell or hold suc
security.
Compiled by: MunlFinancial 27368 Via Industda, Suite 110 Temecula, CA 92590 (951) 587-3500 www.muni.00m Page 1 of
District Information Sheet
ssessment District No. 92-1
ity of La Quinta, Riverside, CA
)UTSTANDING DELINQUENCY INFORMATION
s of 10/06/06
Total
Delinquencies
Delinquency Rate
Delinquent No.
Tax Year
Assessment
(current)
(current)
of Parcels
2000/01
$185,973.20
$0.00
0.00%
0
2001/02
$188,969.18
$287.32
0.15%
1
2002/03
$186,319.04
$487.08
0.26%
2
2003/04
$190,689.54
$1,163.26
0.61%
4
2004/05
$154,700.92
$2,984.35
1.93%
16
2005/06
$158,926.34
$6,973.17
4.39%
41
rARCEL OWNERS (REPRESENTING 5% OR MORE OF TOTAL ASSESSMENT)
ased on County Property Data as of 06/30/06
Number % of Total Annual Assessment % of Annual Assessed
Owner of Parcels Parcels for Fiscal Year 2006107 Assessment Value
There are currently no parcel owners
representing 5% or more of the total N/A N/A N/A N/A N/A
assessment.
Aggregate inlomaebon for each owner listed is based on owner name as shown on dre appllcaWe secured roll maintained by the county. Accordingly, "nations in the owner name shown on Me
secured roll may muse multiple lisbngs for the same owner orfor the data to be incomplete.
:ALL PROVISIONS
Optional Redemption:
)RINCIPLE UNDERWRITER
M.L. Stern & Co.
/ALOE TO LIEN RATIO:
is of 06/30/06
Percent of Total
Value to Lien
No. of
Percent of
Aggregate
Remaining
Remaining
Ratio
Parcels
Total Parcels
Assessed Value
Assessment Lien
Principal
5,000:1 and Above
145
15.78%
$54,013,124.00
$4,419.79
1.42%
1,000:1 to 4,999:1
72
7.83%
$58,396,137.00
$33,841.71
10.83%
500:1to999:1
228
24.81%
$59,943,229.00
$87,115.37
27.89%
100:1 to 499:1
434
47.23%
$55,934,855.00
$171,679.34
54.96%
Less than 100:1
40
4.35%
$728,111.00
$15,301.79
4.90%
Total
919
100.00%
$229,015,456.00
$312,357.99
100.00%
Nil assessed values are based on data obtained from the applicable county. The information pertaining to the District and its underlying security ha;
)een obtained by MuniFinancial from sources believed to be reliable, but is not guaranteed as to accuracy or completeness. The release of lhi:
nformation is not intended to be, and should not be construed as, an endorsement of such security nor a recommendation to purchase, sell or hold sucl
security.
compiled by: MuniFinancial 27368 Via Industria, Suite 110 Temecula, CA 92590 (951) 587-3500 www.muni.com Page 2 of:
11 i'►
District Information Sheet
,ssessment District No. 97-1
:ity of La Quinta, Riverside, CA
IOND STATUS
s of 1111612006
Outstanding Principal:
$490,000.00
Annual Debt Service For
Amount
2006
$ 58,460.00
2007
$ 56,990.00
)ISTRICT STATUS
No. of
Fiscal
Amount Percent Parcels
Range of Annual Assessments
Year Assessment
Delinquent Delinquent Delinquent
for Fiscal Year 2006107
2004/05 $65,540.80
$0.00 0.00% 0
Highest Annual Assessment Per Parcel:
$672.76
2005/06 $64,813.60
$630.32 0.97% 1
Lowest Annual Assessment Per Parcel:
$327.70
Average Annual Assessment Per Parcel:
$615.33
BOND SUMMARY INFORMATION
)riginal Issue Amount (Par) $745,000.00 Final Maturity: September 2, 2018
)ate of Issuance December 3, 1998 Bond Call Notice (days) 30
)oupon Payment Dates March 2, September 2
DISTRICT SUMMARY INFORMATION
Overall Assessed Value / Lien Ratio 50.44 Total Assessed Improvements $20,430,725.00
Total Assessed Value $26,955,704.00 Total Assessed Land $6,524,979.00
Type of Improvements Roads, water, sewer, landscape
ACTIVE PARCEL INFORMATION
as of 06/30/06
Number
Percentage of
Percentage of Annual
Category
of Parcels
Total Parcels
Assessment
Improved Parcels
105
100.00%
100.00%
Unimproved Parcels
p
0
0.00 %
100.00%
0.00/o
100.00%
Total
105
FUND BALANCE INFORMATION
Fund
As of Date
Balance
Type of Investment
Funds Administered By
Redemption Fund
Reserve Fund
September 30, 2006
September 30, 2006
$25,799.55
$65,432.59
N/A
N/A
Held By City
Held By City
Approx. Reserve Requirement: $61,160.00
All assessed values are based on data obtained from the applicable county. The information pertaining to the District and its underlying security N
been obtained by MuniFinancial from sources believed to be reliable, but is not guaranteed as to accuracy or completeness. The release of th
information is not intended to be, and should not be construed as, an endorsement of such security nor a recommendation to purchase, sell or hold suc
security.
Compiled by: MuniFinancial 27368 Via Industria, Suite 110 Temecula, CA 92590 (951) 587-3500 WWW.muni.com Page 1 of
111
District Information Sheet
assessment District No. 97-1
:ity of La Quints, Riverside, CA
)UTSTANDING DELINQUENCY INFORMATION
s of 10/06/06
Total
Delinquencies
Delinquency Rate
Delinquent No.
Tax Year
Assessment
(current)
(current)
of Parcels
2000101
$66,323.70
$0.00
0.00%
0
2001/02
$65,457.70
$0.00
0.00%
0
2002/03
$69,416.60
$0.00
0.00%
0
2003/04
$70,899.80
$0.00
0.00%
0
2004/05
$65,540.80
$0.00
0.00%
0
2005/06
$64,813.60
$630.32
0.97%
1
PARCEL OWNERS (REPRESENTING 5% OR MORE OF TOTAL ASSESSMENT)
used on County Property Data as of 06/30/06
Number % of Total Annual Assessment % of Annual Assessed
Owner of Parcels Parcels for Fiscal Year 2006/07 Assessment Value
There are currently no parcel owners
representing 5% or more of the total N/A N/A N/A N/A N/A
assessment.
Aggregate mrmmabon for each awner bated is based on owner name as shown on the applicable secured roll maintained by the county. Accordingly, variations m gm owner name shown an the
secured rog may cause multiple listings for the some owner or for the data to be incomplete
,:ALL PROVISIONS
Optional Redemption:
DRINCIPLE UNDERWRITER
vtiller and Schroeder Financial, Inc.
iolana Beach, California
VALUE TO LIEN RATIO:
is of 06/30/06
eye of Total
Value to Lien
Ratio
No. of
Parcels
% of
Total Parcels
Aggregate
Assessed Value
Remaining
Assessment Lien
Remaining
Principal
_
100:1 and Above
3
2.86%
$1,220,821.00
$7,975.05
1.49%
75:1 to 99.99:1
9
8.57%
3,696,641.00
44,346.35
8.30%
50:1 to 74.99:1
30
28.57%
9,419,157.00
153,777.35
28.78%
25:1 to 49.99:1
63
60.00%
12,619,085.00
328,293.00
61.43%
Less than 25:1
0
0.00%
0.00
0.00
0.00%
Total
105
100.00%
$26,955,704.00
$534,391.75
100.00%
All assessed values are based on data obtained from the applicable county. The information pertaining to the District and its underlying security ha:
been obtained by MuniFinancial from sources believed to be reliable, but is not guaranteed as to accuracy or completeness. The release of thl.
information is not intended to be, and should not be construed as, an endorsement of such security nor a recommendation to purchase, sell or hold sucl
security.
Compiled by: MunlFlnancial 27368 Via Industna, Suite 110 Temecula, CA 92590 (951) 587-3500 www.muni.mm Page 2 of
cep 4 4 Qumrry
OF
�9
AGENDA CATEGORY:
BUSINESS SESSION:
COUNCIL/RDA MEETING DATE: December 5, 2006
CONSENT CALENDAR: A)
ITEM TITLE: Approval of Annual Continuing Disclosure
for the City of La Quinta 2000-1 Assessment District STUDY SESSION:
for Fiscal Year End June 30, 2006 PUBLIC HEARING:
RECOMMENDATION:
Approve, receive and file the Annual Continuing Disclosure for the City of La
Quinta 2000-1 Assessment District for Fiscal Year End June 30, 2006.
FISCAL IMPLICATIONS:
lilrom"
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
On November 10, 1994, the Securities and Exchange Commission adopted
amendments to existing federal regulations (Rule 15c2-12) for bonds issued after
July 3, 1995, requiring issuers of municipal securities (bond issues) to do the
following annually for each bond issue:
1. Prepare official statements meeting the content requirement of Rule 15c2-
12.
11
2. File certain financial information and operating data with national and state
repositories each year.
3. Prepare announcements of the significant events including payment defaults,
defeasances and draws on a reserve fund as the events occur.
Attachment 1 is the 2005/06 Annual Continuing Disclosure Statement for the City
of La Quinta 2000-1 Assessment District - La Quinta, prepared in accordance with
the three aforementioned requirements. Additionally, no announcement of
significant events was necessary for Fiscal Year 2005/06.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Approve, receive and file the Annual Continuing Disclosure for the City of La
Quinta 2000-1 Assessment District for Fiscal Year End June 30, 2006; or
2. Do not approve, receive and file the Annual Continuing Disclosure for the
City of La Quinta 2000-1 Assessment District for Fiscal Year End June 30,
2006; or
3. Provide staff with alternative direction.
Respectfully submitted,
YAU&tA, W rat 14 4 �."
er
John M. Falcon, Finance Director
Approved for submission by:
Thomas G. Genovese, City Manager
Attachment: 1. 2005/06 Annual Continuing Disclosure Statement for the City
of La Quinta 2000-1 Assessment District
11
A 1 1 AGtI1VICP
CITY OF LA QU/NTA
ASSESSMENT DISTRICT NO. 2000-1
(PHASE VI IMPROVEMENTS)
$2,285,000
LIMITED OBLIGATION IMPROVEMENT BONDS
Riverside, California
Dated: June 21, 2000
CUSIP: 504193
2005/2006 ANNUAL CONTINUING DISCLOSURE
INFORMATION STATEMENT
NOVEMBER 29, 2006
Also available at:
MuniFinancial
www.muni.com
LIST OF PARTICIPANTS
CITY OF LA QUINTA
www.la-quinia.org
John Falconer
Finance Director
P.O. Box 1504
78-495 Calle Tampico
La Quinta, California 92247-1504
(760) 777-7150
DISCLOSURE CONSULTANT & DISSEMINATION AGENT
MuniFinancial
Temecula, CA 92590
(951) 587-3500
Report available for viewino 0
www.muni.com
UNDERWRITER
Miller & Schroeder Financial, Inc.
BOND COUNSEL"
Rutan & Tucker LLP
Costa Mesa, California
PAYING AGENT
Brad Scarbrough
U.S. Bank Trust, N.A.
633 West 5th Street, 24th Floor
Los Angeles, California 90071
(213) 615-6047
' In its role as Disclosure Consultant and Dissemination Agent, MuniFinancial has not passed upon the accuracy,
completeness or fairness of the statements contained herein.
11(5
L INTRODUCTION
Pursuant to an Official Statement dated June 21, 2000, the City of La Quinta, (the
"City") issued $2,285,000 Assessment District No. 2000-1 (Phase VI Improvements)
(the "District"), Limited Obligation Improvement Bonds (the "Bonds"). The Bonds were
issued to finance the construction and acquisition of sewer improvements within the
areas commonly known as Village Cove, Westward Ho Drive and
Bottlebrush/Sagebrush/Saguaro Streets, which are located within the Assessment
District.
The City, which comprises approximately 35.05 square miles, is located in the
Coachella Valley, twenty miles from Palm Springs and 127 miles from Los Angeles.
The District includes three non-contiguous areas in the City. The three areas are the
Village Cove section, Westward Ho Drive, and Bottlebrush/Sagebrush/Saguaro Streets.
The Village Cove Section is generally located in the area bounded by Calle Tampico on
the north, Calle Sinaloa on the south, Washington Street on the east, and Eisenhower
Drive on the west. The Westward Ho Drive Area is bounded by Dune Palms Road on
the west, Jefferson Street on the east, Westward Ho Drive on the north, and the
Coachella Valley Water District (CVWD) Stormwater Channel on the south.
The Bonds are limited obligation improvement bonds secured by unpaid assessments
on the properties in the District. The Bonds are not a debt of the City, the State of
California, or any of its political subdivisions and neither the City, the State of California,
nor any of its political subdivisions is liable. The Bonds do not constitute indebtedness
within the meaning of any constitutional or statutory debt limit or restriction.
This Annual Continuing Disclosure Information Statement is being provided pursuant to
a covenant made by the Agency for the benefit of the holders of the Bonds and includes
the information specified in a Continuing Disclosure Certificate. For further information
and a more complete description of the City and the Bonds, reference is made to the
Official Statement.
The information set forth herein has been furnished by the City and by sources, which
are believed to be accurate and reliable but is not guaranteed as to accuracy or
completeness. Statements contained in this Annual Continuing Disclosure Information
Statement which involve estimates, forecasts, or other matters of opinion, whether or
not expressly so described herein, are intended solely as such and are not to be
construed as representations of fact. Further, the information and expressions of
opinion contained herein are subject to change without notice and the delivery of this
Annual Continuing Disclosure Information Statement will not, under any circumstances,
create any implication that there has been no change in the affairs of the City or any
other parties described herein.
Fiscal Year 2005/2006 City of La Quints, Assessment District 2000-1
13
ll. BOND INFORMATION
A. PRINCIPAL OUTSTANDING
Bond Issue As of September 30, 2006
Assessment District No. 2000-1
(Phase VI Improvements) $1,210,000
Limited Obligation Improvement Bonds
On March 2, 2006, $245,000 principal amount of the Bonds were called for
redemption. The funds for the redemption portion of the Bonds came from
surplus Construction Funds after the completion of the project and the
prepayment of the assessment liens on the parcels within the District.
B. FUND BALANCES
Fund Name As of September 30, 2006
Redemption Fund $54,646
Reserve Fund[DM071 $238,207
Reserve Requirement(') $184,830
(1) The Reserve Requirement was calculated based on the lesser of a) maximum annual debt service on the outstanding
bonds b)125% of the average annual debt service on the bonds, or c) 10% of the original issue amount of the bonds as
set forth in the Official Statement.
Source: City of La Quints, as compiled by MuniFinancial.
Fiscal Year 200&2006 City of La Quinta, Assessment District 2000-1 2
III. OPERATING INFORMATION
A. PARCEL INFORMATION BY ZONING
% Of
Remaining
Remaining
Number of
Parcels
Land
Structure
Total
Assessment
Lien (')
Value to Lien
Assessment
Lien
Developed Commercial
26
$2,545,397
$12,444,131
$14,989,528
$90,046
166.46
7.05%
Undeveloped Commercial
28
4,010,114
0
4,010,114
97,178
_41.27
7.61%
Subtotal Commercial
54
$6 551 511
$12144131
$18,999,642
$187,255
101.48
14.67%
Developed Residential
350
18,981,415
54,208,020
73,189,435
915,194
79.97
71.70%
Undeveloped Residential
67
5,899,814
15,300
5,915,114
174,013
33.99
13.63%
Subtotal Residential
417
$24,881,229
$54,223,320
$79,104,549
$1,089,207
72.63
85.33%
Grand Total
471
$31,436,740
$66,667,451
$98,104,191
$1,276,431
76.86
100.00%
(1) The remaining assessment lien has been reduced as a result of the bond call performed
active parcel in the District in the amount of $245,000.
on March 2, 2006
proportionately on each
Development Status is based on County Land Use Codes and Structure Value.
Source: Riverside County 2006/07 Secured Property Roll, as compiled by MuniFinancial.
B. PARCEL INFORMATION BY DEVELOPMENT STATUS
2006107 Assessed Value
% Of
Remaining
Remaining
Number of
Assessment
Assessment
Parcels
Land
Structure
Total
Lien
Value to Lien
Lien
Developed Commercial
26
$2,545,397
$12,444,131
$14,989,528
$90,046
166.46
7.05%
Developed Residential
350
18,981,415
54208,020
73,189,435
915,194
79.97
71.70%
Subtotal Developed
376
$21,526,812
$66,652,151
$88,178,963
$1,005,240
87.72
78.75%
Undeveloped Commercial
28
4,010,114
0
4,010,114
97,178
41.27
7.61%
Undeveloped Residential
67
5,899,814
15,300
5,915,114
174,013
33.99
13.63%
Subtotal Undeveloped
95
$9,909,928
$15,300
$9,925228
$271,191
36.60
21.25%
Grand Total
471
$31,436,740
$66,667,451
$98,104,191
$1,276,431
76.86
100.00%
Development Status is based on County Land Use Codes and Structure Value.
Source: Riverside County 2006107 Secured Property Roll, as compiled by MuniFinancial.
Fiscal Year 200512006 City of La Quinta, Assessment District 2000-1 3
4
C. DELINQUENCY SUMMARY
There are currently no delinquent property owners responsible for 5% or more of
the total assessment levied.
Number
Number of
Fiscal
Of
Parcels
Annual
Assessment
Percent
Year
Parcels
Delinquent
Assessment
Delinquent nl
Delinquent
2000/01
468
1
$243,338
$512
0.21%
2001/02
464
2
$245,572
$1,122
0.46%
2002/03
463
2
$242,218
$1,041
0.43%
2003/04
464
2
$244,913
$1,102
0.45%
2004/05
452
4
$237,035
$1,805
0.76%
2005106
451
11
$235,550
$4,098
1.74%
(1) Amount delinquent as of October 6, 2006
Source: Riverside County, as compiled by MuniFinancial
D. VALUE TO DEBT
The following table sets forth by Value to Debt, the Remaining Bonded Debt and
Assessed Value for parcels within the District.
% Of
2006107
2006107
2006/07
Remaining
Remaining
Value to Lien
Number of
Assessed Land
Assessed
Total Assessed
Assessment
Assessment
Category
Parcels
Value
Structure Value
Value
_ Lien
Lien
Greater than30
371
$29,159,032
$64,669,131
$93,828,163
$971,096.08
76.08%
20to29.99
32
868,218
1,517,826
2,386,044
92,101.19
7.22%
10 to 19.99
27
871,840
460,709
1,332,549
86,560.78
6.78%
5 to 9.99
13
382,605
18,404
401,009
52,463.73
4.11%
3 to 4.99
12
50,731
1,381
52,112
31,233.96
2.45%
1to2.99
9
91,175
0
91,175
23,490.10
1.84%
Less than 1
7
13,139
0
13,139
19,485.40
1.53%
Grand Total
471
$31,436,740
$66,667,451
$98,104,191
$1,276,431.24
100.00%
Source:
Riverside County 2006/07 Secured Property Roll, as compiled by MuniFinancial.
Fiscal Year 200512006 City of La Quints, Assessment District 2000-1
12
o 4 4v Qumrry
AGENDA CATEGORY:
w
cF'k OF
BUSINESS SESSION:
COUNCIL/RDA MEETING DATE: December 20, 2005
CONSENT CALENDAR:
ITEM TITLE: Approval of the Declaration of Surplus
STUDY SESSION:
Property
PUBLIC HEARING:
RECOMMENDATION:
Approve the Declaration of Surplus Property declaring the items listed in
Attachment 1 as surplus and authorize staff to advertise its sale, and if unsold, to
dispose of the property by other legal means.
FISCAL IMPLICATIONS:
None.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
The City has accumulated obsolete and non-functional property items over the last
six months. The equipment has little or no market value and in accordance with
Section 3.12.320 of the Municipal Code, the City may dispose of the equipment by
auction, by sale or otherwise after receiving bids and proposals. Staff is proposing
advertising the surplus equipment in The Desert Sun newspaper and receiving
sealed bids.
1�
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Approve the Declaration of Surplus Property declaring the items listed in
Attachment 1 as surplus and authorize staff to advertise its sale and, if
unsold, to discard of the property by other legal means; or
2. Do not approve the Declaration of Surplus Property declaring the items listed
in Attachment 1 as surplus and authorize staff to advertise its sale and, if
unsold, to discard of the property by other legal means; or
3. Provide staff with alternative direction.
Respectfully submitted,
I�Jto� 1w aria h� . fir►
John M. Falcon r, Finance Director
Approved for submission by:
6
Thomas P. Genovese, City Manager
Attachment: 1. Declaration of Surplus Property
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k OF
AGENDA CATEGORY:
COUNCIL/RDA MEETING DATE: December 5, 2006 BUSINESS SESSION:
ITEM TITLE: Adoption of a Resolution to Extend the CONSENT CALENDAR: la
Time for Completion of the Off -Site Improvements for
Tract Map No. 30357, Mountain View Country Club STUDY SESSION:
PUBLIC HEARING:
RECOMMENDATION:
Adopt a resolution to extend the time for completion of the off -site improvements as
specified in the approved Subdivision Improvement Agreement (SIA) to October 1,
2007 for Tract Map No. 30357, Mountain View Country Club
FISCAL IMPLICATIONS:
None.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Mountain View Country Club (Tract Map No. 30357), is located south of Avenue 50,
north of Avenue 52, east of Jefferson St., and west of Madison St. (please see
Attachment 1).
On September 17, 2002, the City Council adopted a resolution granting conditional
approval of the Final Map and SIA for Mountain View Country Club. Section 6 of the
SIA requires: "that the subdivision improvements shall be complete within twelve
months after the approval of the SIA. Failure by Subdivider to begin or complete
construction of the Improvements within the specified time periods shall constitute
cause for City, in its sole discretion and when it deems necessary, to declare
Subdivider in default of this SIA, to revise improvement security requirements as
necessary to ensure completion of the improvements, and/or to require modifications in
jr)i
the standards or sequencing of the Improvements in response to changes in standards
or conditions affecting or affected by the Improvements. "
In a letter dated November 6, 2006 (please see Attachment 2), the developer stated
that currently a portion of Via Talavera is closed at the model home park, which is
accessible only to pedestrian traffic. Therefore, the developer requests a time
extension for the remainder of the off -site improvements to October 1, 2007. Staff
has prepared the attached resolution which provides for approval of the time extension
of the SIA. As the improvements are not critical, staff recommends that the time
extension be granted.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
Adopt a Resolution of the City Council to extend the time for completion of the
off -site improvements as specified in the approved Subdivision Improvement
Agreement to October 1, 2007 for Tract Map No. 30357, Mountain View
Country Club.
2. Do not adopt a Resolution of the City Council to extend the time for completion
of the off -site improvements time as specified in the approved Subdivision
Improvement Agreement to October 1, 2007 for Tract Map No. 30357,
Mountain View Country Club; or
3. Provide staff with alternative direction.
Respectfully submitted,
r
imothy R. J nas n, P.E.
Public Works Dir for/City Engineer
Approved for submission by:
4homas P. Genovese, City Manager
Attachment: 1. Vicinity Map
2. Letter from Toll Brothers, dated 11 /06/06
RESOLUTION NO. 2006-(Clerk's Office will enter)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF LA QUINTA, CALIFORNIA, GRANTING AN
EXTENSION OF TIME FOR THE COMPLETION OF THE
OFF -SITE IMPROVEMENTS AS SPECIFIED IN THE
APPROVED SUBDIVISION IMPROVEMENT AGREEMENT
FOR TRACT MAP NO. 30357, MOUNTAIN VIEW
COUNTRY CLUB, TOLL BROTHERS
WHEREAS, the City Council approved the Subdivision Improvement
Agreement (SIA) for Tract Map No. 30357, Toll Brothers on September 17, 2002;
and
WHEREAS, Section 6. Completion of Improvements, of the approved SIA
requires that the Subdivider begin construction of the improvements within ninety
days and complete the construction within twelve months after the approval of the
Agreement; and
WHEREAS, failure by the Subdivider to complete construction of the
improvements by September 17, 2003, shall constitute cause for the City, in its
sole discretion and when it deems necessary, to declare the Subdivider in default of
the approved agreement; and
WHEREAS, Section 8. Time Extension, of the approved SIA allows for, at the
City Council's sole and absolute discretion, an extension of time for completion of
the improvements with additions or revisions to the terms and conditions of the
Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La
Quinta, California, as follows:
Section 1. The time for the completion of improvements as required by the
approved SIA to be extended to October 1, 2007.
Section 2. The time extension for completing the improvements shall expire
when City offices close for regular business on October 1, 2007. If the Subdivider
has not completed the improvements, the City, at its sole discretion and when it
deems necessary, may declare the Subdivider in default of the Agreement.
Section 3. The provided security amount, as required in the approved SIA is
satisfactory. No additional securities are required.
Resolution No. 2006-
Tract Map No. 30357 - Off -site , Mountain View Country Club, Toll Brothers
Adopted: December 5, 2006
Page 2
Section 4. All other terms, responsibilities and conditions as listed in the
approved SIA shall remain in full force and effect.
PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta
City Council held on this 51h day December 2006, by the following vote, to wit:
AYES:Council Members (Clerk's Office will enter)
NOES:
ABSENT:
ABSTAIN:
DON ADOLPH, Mayor
City of La Quinta, California
ATTEST:
VERONICA J. MONTECINO, CMC, CITY CLERK
City of La Quinta, California
(City Seal)
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
Un
TI
ATTACHMENT - I
TRACT MAP No. 30357
MOUNTAIN VIEW COUNTRY CLUB
VICINITY MAP
NOT TO SCALE
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of Resolution to Extend the Time of Completion of the Off -site
Improvements for a period of five years for Tract Map No. 30357, Mountain View
Country Club
APPLICANT: Toll Brothers
1
ATTACHMENT
Toll GBrothers
America's Luxury Home Builder"
November 6, 2006
City of La Quinta
Mr. Edward Wimmer
Development Services Principal Engineer
P.O. Box 1504
78495 Calle Tampico
La Quinta, CA 92253-1504
RE: Tract Map No.30357
Subdivision Improvement Agreement
Dear Mr. Winner,
RECEIVED
NOV 1 ' 2006
PUBLIC WORKS
We are responding to your letter dated October 24, 2006 whereas you state the
requirement to complete subdivision improvements per the Subdivision Improvement
Agreement associated with the above referenced Tract Map.
Per the conditions of the Subdivision Improvement Agreement if the improvements are
not 100% complete the Sub divider may request an extension of time to complete said
improvements.
This letter shall serve as our formal written request to extend the completion date of the
subdivision improvements associated with Tract Map 30357 to October 1, 2007.
The reason for the request is due to the fact we have closed off a portion of the street
named Via Talavera to vehicular traffic to utilize as our model home park accessible only
to pedestrian traffic.
All other improvements are 100% complete within Tract Map 30357. But because of our
model park road closure we are unable to obtain final acceptance of the improvements
associated with Tract Map 30357.
We anticipate dismantling the model home park and opening of the road upon completion
of our marketing efforts after all homes have been sold sometime mid 2007.
Therefore we respectfully request the extension of time for the completion of said
improvements to October 1, 2007.
New York Stock Exchange • Symbol TOL
14350 North 87th Street, Suite 310, Scottsdale, AZ 85260
480.951-0782 Fax 480-998-7269
u
Should you have any questions regarding our request or require anything further to
approve this extension by contact me directly @ (480) 951-0782.
Sincerely,
Terry g a R. Hodge
Vice President Land Development
Cc: Salem AI-Shatti, Toll Brothers, Inc.
George Prine, MDS Consulting
Allen Janisch, Toll Brothers, Inc.
I
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Adoption of a Resolution to Extend the
Time for Completion of the On -Site Improvements for
Tract Map No. 30357, Mountain View Country Club
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt a resolution to extend the time for completion of the on -site improvements as
specified in the approved Subdivision Improvement Agreement (SIA) to October 1,
2007 for Tract Map No. 30357, Mountain View Country Club.
FISCAL IMPLICATIONS:
[fMOM
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Mountain View Country Club (Tract Map No. 30357), is located south of Avenue 50,
north of Avenue 52, east of Jefferson St., and west of Madison St. (please see
Attachment 1).
On September 17, 2002, the City Council adopted a resolution granting conditional
approval of the Final Map and SIA for Mountain View Country Club. Section 6 of the
SIA requires: "that the subdivision improvements shall be complete within twelve
months after the approval of the SIA. Failure by Subdivider to begin or complete
construction of the Improvements within the specified time periods shall constitute
cause for City, in its sole discretion and when it deems necessary, to declare
Subdivider in default of this SIA, to revise improvement security requirements as
necessary to ensure completion of the improvements, and/or to require modifications in
1�
the standards or sequencing of the Improvements in response to changes in standards
or conditions affecting or affected by the Improvements.
In a letter dated November 6, 2006 (please see Attachment 2), the developer stated
that currently a portion of Via Talavera is closed at the model home park, which is
accessible only to pedestrian traffic. Therefore, the developer requests a time
extension for the remainder of the on -site improvements to October 1, 2007. Staff
has prepared the attached resolution which provides for approval of the time extension
of the SIA.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
Adopt a Resolution of the City Council to extend the time for completion of the
on -site improvements as specified in the approved Subdivision Improvement
Agreement to October 1, 2007 for Tract Map No. 30357, Mountain View
Country Club.
2. Do not adopt a Resolution of the City Council to extend the time for completion
of the on -site improvements time as specified in the approved Subdivision
Improvement Agreement to October 1, 2007 for Tract Map No. 30357,
Mountain View Country Club; or
3. Provide staff with alternative direction.
Respectfully submitted,
$mothyy R. o as P.E.
Public Work Dir or/City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachment: 1. Vicinity Map
2. Letter from Toll Brothers, dated 1 1 /06/06
RESOLUTION NO. 2006-(Clerk's Office will enter)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF LA QUINTA, CALIFORNIA, GRANTING AN
EXTENSION OF TIME FOR THE COMPLETION OF THE
ON -SITE IMPROVEMENTS AS SPECIFIED IN THE
APPROVED SUBDIVISION IMPROVEMENT AGREEMENT
FOR TRACT MAP NO. 30357, MOUNTAIN VIEW
COUNTRY CLUB, TOLL BROTHERS
WHEREAS, the City Council approved the Subdivision Improvement
Agreement (SIA) for Tract Map No. 30357, Toll Brothers on September 17, 2002;
and
WHEREAS, Section 6. Completion of Improvements, of the approved SIA
requires that the Subdivider begin construction of the improvements within ninety
days and complete the construction within twelve months after the approval of the
Agreement; and
WHEREAS, failure by the Subdivider to complete construction of the
improvements by September 17, 2003, shall constitute cause for the City, in its
sole discretion and when it deems necessary, to declare the Subdivider in default of
the approved agreement; and
WHEREAS, Section 8. Time Extension, of the approved SIA allows for, at the
City Council's sole and absolute discretion, an extension of time for completion of
the improvements with additions or revisions to the terms and conditions of the
Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La
Quinta, California, as follows:
Section 1. The time for the completion of improvements as required by the
approved SIA to be extended to October 1, 2007.
Section 2. The time extension for completing the improvements shall expire
when City offices close for regular business on October 1, 2007. If the Subdivider
has not completed the improvements, the City, at its sole discretion and when it
deems necessary, may declare the Subdivider in default of the Agreement.
Section 3. The provided security amount, as required in the approved SIA is
satisfactory. No additional securities are required.
�J
Resolution No. 2006-
Tract Map No. 30357 - On -site, Mountain View Country Club, Toll Brothers
Adopted: December 5, 2006
Page 2
Section 4. All other terms, responsibilities and conditions as listed in the
approved SIA shall remain in full force and effect.
PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta
City Council held on this 5" day December 2006, by the following vote, to wit:
AYES:Council Members (Clerk's Office will enter)
NOES:
ABSENT:
ABSTAIN:
DON ADOLPH, Mayor
City of La Quinta, California
ATTEST:
VERONICA J. MONTECINO, CMC, CITY CLERK
City of La Quinta, California
(City Seal)
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
ATTACHMENT - 1
TRACT MAP No. 30357
MOUNTAIN VIEW COUNTRY CLUB
MR S t HIM
ti
III
_1 ,
VICINITY MAP
NOT TO SCALE
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of Resolution to Extend the Time of Completion of the On -site
Improvements for a period of five years for Tract Map No. 30357, Mountain View
Country Club
APPLICANT: Toll Brothers
1.
ATTACHMEN
Toll `Brothers
America's Luxury Home Builder"
November 6, 2006
City of La Quinta
Mr. Edward Wimmer
Development Services Principal Engineer
P.O. Box 1504
78-495 Calle Tampico
La Quinta, CA 92253-1504
RE: Tract Map No.30357
Subdivision Improvement Agreement
Dear Mr. Wimmer,
I[81EC EI'V ,;'1J
NOV 1 ' 2006
I<DUB LIC WORKS
We are responding to your letter dated October 24, 2006 whereas you state the
requirement to complete subdivision improvements per the Subdivision Improvement
Agreement associated with the above referenced Tract Map.
Per the conditions of the Subdivision Improvement Agreement if the improvements are
not 100% complete the Sub divider may request an extension of time to complete said
improvements.
This letter shall serve as our formal written request to extend the completion date of the
subdivision improvements associated with Tract Map 30357 to October 1, 2007.
The reason for the request is due to the fact we have closed off a portion of the street
named Via Talavera to vehicular traffic to utilize as our model home park accessible only
to pedestrian traffic.
All other improvements are 100% complete within Tract Map 30357. But because of our
model park road closure we are unable to obtain final acceptance of the improvements
associated with Tract Map 30357.
We anticipate dismantling the model home park and opening of the road upon completion
of our marketing efforts after all homes have been sold sometime mid 2007.
Therefore we respectfully request the extension of time for the completion of said
improvements to October 1, 2007.
New York Stock Exchange • Symbol TOL
14350 North 87th Street, Suite 310, Scottsdale, AZ 85260 1 .i
480-951-0782 Fax 480-998-7269
Should you have any questions regarding our request or require anything further to
approve this extension by contact me directly @ (480) 951-0782.
Sincerely,
�� �
\\ Terry R. Hodge
Vice President Land Development
Cc: Salem AI-Shatti, Toll Brothers, Inc.
George Prine, MDS Consulting
Allen Janisch, Toll Brothers, Inc.
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Acceptance of On -site Improvements
Associated with Parcel Map Nos. 30903-1, 30903-2,
and 30903-3, Washington Park Retail Center,
Washington III, LTD
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR: 141
STUDY SESSION:
PUBLIC HEARING:
Accept on -site improvements associated with Parcel Map Nos. 30903-1, 30903-2 and
30903-3, Washington Park Retail Center, Washington III, LTD and authorize staff to
release performance securities upon receipt of warranty securities.
FISCAL IMPLICATIONS:
None. No public improvements will be accepted with this action.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Parcel Map Nos. 30903-1, 30903-2, and 30903-3, Washington Park Retail Center, is
located on the north side of Avenue 47 between Washington Street and Adams Street
(please see Attachment 1). All obligations of the Subdivision Improvement Agreement
and the Conditions of Approval have been satisfied. Attachment 2 indicates the
amount of warranty securities.
1 QU
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Accept the on -site improvements associated with Parcel Map Nos.
30903-1, 30903-2, and 30903-3, Washington Park Retail Center,
Washington III, LTD and authorize staff to release performance securities
upon receipt of warranty securities; or
2. Do not accept the on -site improvements associated with Parcel Map Nos.
30903-1, 30903-2, and 30903-3, Washington Park Retail Center,
Washington III, LTD and do not authorize staff to release performance
securities upon receipt of warranty securities; or
3. Provide staff with alternative direction.
Respectfully submitted,
Ju
othy R onas n, P.Eblic Wor Dir for/City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachments: 1. Vicinity Map
2. Warranty Securities
141
ATTACHMENT -1
PARCEL MAP Nos. 30903-1, -2, & -3
WASHINGTON PARK RETAIL CENTER
COUNTRY CLUB
FRED WARING
STATE
SIMON
DRIVE
PARCEL MAP
NO. 30903-
DRIVE
AVENUE
Cn
a
0
a
VICINITY MAP
NOT TO SCALE
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of On -site Improvements Associated with Parcel Map Nos.
30903-1, 30903-2, and 30903-3, Washington Park Retail Center
APPLICANT: Washington 111, LTD
ATTACHMENT - 2
PARCEL MAP Nos. 30903-1, -2, & -3
WASHINGTON PARK RETAIL CENTER
PM 309034 S -3 ON -SITE IMPROVEMENTS
Performance Security'
Improvement Description
Labor &
Materiah?
Current
Amount
Proposed
Reduction
WARRANTY
AMOUNTS
Drainage Improvements
$107,190
$107,190
900/0
$10,719
Street Improvements
$144,505
$144,505
900/0
$14,451
Domestic Water
$237,810
$237,810
90%
$23,781
Sanitary Sewer
$46,210
$46,210
90%
$4,621
Perimeter Landscaping
$65,000
$65,000
90%
1 $6,500
Power, Offsite & Onsite
$446,000
$446,000
90%
$44,600
Monumentation
$9,000
$9,000
100%
$0
Professional Fees, Construction (10%)
$105,572
$105,572
100%
$0
Standard Contingency (10%)
1 $116,129
$116,129
1000/0
$0
Totals
$1,277,416
1 $1,277,416
-
$1ti4,672
PM 30903-2 ON -SITE IMPROVEMENTS
Performance Security'
Improvement Description
Labor &
Materials?
Current
Amount
Proposed
Reduction
WARRANTY
AMOUNT
Drainage Improvements
$213,520
$213,520
900/0
$21,352
Street Improvements
$220,510
$220,510
90%
$22,051
Domestic Water
$740,225
$740,225
900/0
$74,023
Sanitary Sewer
$318,890
1 $318,890
900/0
$31,889
Perimeter Landscaping
$166,000
$166,000
90%
$16,600
Power, Offsite & Onsite
$81,809
$81,809
90%
$8,181
Monumentation
$6,000
$6,000
100%
$0
Professional Fees, Construction (10%)
$174,695
$174,695
100%
$0
Standard Contingency(10%)
$192,165
$192,165
100%
$0
Totals
$2,113,814
$2,113,814
-
$174,095
14TY SECURITIE'S
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of On -site Improvements Associated with Parcel Map Nos.
30903-1, 30903-2, and 30903-3, Washington Park Retail Center
APPLICANT: Washington 111, LTD
I
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Acceptance of Off -Site Improvements
Associated with Parcel Map Nos. 30903-1, 30903-2,
and 30903-3, Washington Park Retail Center,
Washington III, LTD
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Accept off -site improvements associated with Parcel Map Nos. 30903-1, 30903-2 and
30903-3, Washington Park Retail Center, Washington III, LTD. and authorize staff to
release performance securities upon receipt of warranty securities. The Labor &
Material security will remain in place for 90 days after City Council acceptance of the
off -site improvements.
FISCAL IMPLICATIONS:
The annual maintenance of these improvements is estimated to cost about $4,200 per
year. Staff will request an adjustment to the Public Works Maintenance Division
budget next fiscal year to cover the additional maintenance cost for these
improvements.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Parcel Map Nos. 30903-1, 30903-2, and 30903-3 delineate the Washington Park
Retail Center. It is located on the north side of Avenue 47 between Washington Street
and Adams Street (please see Attachment 1). The off -site improvements include curb
& gutter, storm drain improvements, landscaped medians, sidewalk, curb ramps,
signing, striping, and asphalt concrete pavement. All obligations of the Subdivision
1 il,4
Improvement Agreement and the Conditions of Approval have been satisfied.
Attachment 2 indicates the amount of warranty security.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Accept the off -site improvements associated with Parcel Map Nos.
30903-1, 30903-2, and 30903-3, Washington Park Retail Center,
Washington III, LTD and authorize staff to release performance securities
upon receipt of warranty securities and release Labor & Material security
90 days after City Council acceptance; or
2. Do not accept the off -site improvements associated with Parcel Map Nos.
30903-1, 30903-2, and 30903-3, Washington Park Retail Center,
Washington III, LTD and do not authorize staff to release performance
securities upon receipt of warranty securities and not release Labor &
Material security 90 days after City Council acceptance; or
3. Provide staff with alternative direction.
Respectfully submitted,
t�
imothy . o son, P.E.
Public Wo s irector/City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachments: 1. Vicinity Map
2. Warranty Security
ATTACHMENT - 1
PARCEL MAP Nos. 30903-1, -2, & -3
WASHINGTON PARK RETAIL CENTER
COUNTRY CLUB
DRIVE
FRED WARING
STATE
PARCEL MAP
NO. 30903 -
SIMON
DRIVE
EISENHOWER
DRIVE�-
14f;
70
DRIVE
VICINITY MAP
NOT TO SCALE
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of Off -site Improvements Associated with Parcel Map Nos.
30903-1, -2, & -3, Washington Park Retail Center
APPLICANT: Washington III, LTD
ATTACHMENT - 2
PARCEL MAP Nos. 30903-1, -21 & -3
WASHINGTON PARK RETAIL CENTER
OFF -SITE IMPROVEMENTS
OFF -SITE IMPROVEMENTS
Performance Security'
Improvement Description
Labor &
MateriaW
Current
Amount
Proposed
Reduction
WARRANTY
ANOUNT3
Drainage Improvements
$107,190
$107,190
90%
$10,719
Streets
$144,505
$144,505
90%
$14,451
Domestic Water
$237,810
$237,810
900k
$23,781
Sanitary Sewer
$46,210
$46,210
900/0
$4,621
Permiter Landscaping
$65,000
$65,000
90%
$6,500
Power, Offsite & Onsite
$446,000
$446,000
90%
$44,600
Monumetation
$9,000
$9,000
100%
$0
Professional Fees, Construction 10%
$105,572
$105,572
100%
$0
Standard Contingency 10%
$116,129
1 $116,129
100%
$0
Totals
$1,277,416 1
$1,277,416
—
$104,672
WARRANTY SECURITY
CITY COUNCIL MEETING: December 5, 2006
ITEM TITLE: Acceptance of Off -site Improvements Associated with Parcel Map Nos.
30903-1, -2, & -3, Washington Park Retail Center
APPLICANT: Washington III, LTD
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Approval of Professional Services
Agreements with Bureau Veritas, Engineering Resources
of Southern California, Inc. (ERSC), Hall & Foreman,
Inc., Willdan, NRO Engineering, RKA Consulting Group
and RASA for On -Call Engineering Plan and/or Map
Check Services
RECOMMENDATION:
I:Tt"01MV4"O f rilltA's
BUSINESS SESSION:
CONSENT CALENDAR: /6
STUDY SESSION:
PUBLIC HEARING:
Authorize the City Manager to execute Professional Services Agreements subject to
the review and approval of the City Attorney with Bureau Veritas, Engineering
Resources of Southern California, Inc. (ERSC), Hall & Foreman, Inc., Willdan, NRO
Engineering, RKA Consulting Group and RASA for on -call engineering plan and/or map
check services, as appropriate.
FISCAL IMPLICATIONS:
These services will be paid for on a time and material basis for plan check fees. These
services are included in the Public Works operating budget.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
On September 19, 2006, City Council authorized staff to distribute a Request for
Proposals (RFP) for on -call engineering plan/map check services. The City received
eighteen (18) proposals in response to the RFP. The consultant selection committee
reviewed all proposals and recommended that seven (7) firms be selected to ensure
the shortest turn -around time possible on plan and map checks.
Staff recommends approval of Professional Services Agreements for on -call
engineering plan and/or map check services with:
11S
Bureau Veritas for map and plan check services;
❖ Engineering Resources of Southern California, Inc. (ERSC) for plan check
services;
❖ Hall & Foreman, Inc. for map and plan check services;
44- Willdan for plan check services;
A. NRO Engineering for map and plan check services;
❖ RASA for map check services;
4• RKA Consulting Group for plan check services
Attachments 1 through 7 are the Professional Services Agreements for on -call
engineering plan and/or map check services with the consultants listed above. The
new agreements specify a two (2) year term beginning January 1, 2007 and ending
December 31, 2008.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
Authorize the City Manager to execute a Professional Services Agreements
subject to the review and approval of the City Attorney with Bureau Veritas,
Engineering Resources of Southern California, Inc. (ERSC), Hall & Foreman, Inc.,
Willdan, NRO Engineering, RKA Consulting Group and RASA for on -call
engineering plan and/or map check services; or
2. Do not authorize the City Manager to execute a Professional Services
Agreements subject to the review and approval of the City Attorneywith Bureau
Veritas, Engineering Resources of Southern California, Inc. (ERSC), Hall &
Foreman, Inc., Willdan, NRO Engineering, RKA Consulting Group and RASA for
on -call engineering plan and/or map check services; or
3. Provide staff with alternative direction.
Respectfully submitted,
Gmothy R. J na n, P.E.
Public Wor Dir ctor/City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachments: 1 . Bureau Veritas Professional Services Agreement
2. Engineering Resources of Southern California, Inc. (ERSC)
Professional Services Agreement
3. Hall & Foreman, Inc. Professional Services Agreement
4. Willdan Professional Services Agreement
5. NRO Engineering Professional Services Agreement
6. RASA Professional Services Agreement
7. RKA Consulting Group Professional Services Agreement
1 )�
PROFESSIONAL SERVICES AGREEMENT Attachment 1
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into
by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and
Bureau Veritas ("Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to on -call engineering map and plan check
services, as specified in the "Scope of Services" attached hereto as Exhibit "A" and
incorporated herein by this reference (the "services" or "work"). Consultant warrants that all
services will be performed in a competent, professional and satisfactory manner in accordance
with the standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of
La Quinta and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits Fees and Assessments. Except as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable
penalties and interest, which may be imposed by law and arise from or are necessary for the
performance of the services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it
has thoroughly investigated and considered the work to be performed, (b) it has investigated the
site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully
considered how the work should be performed, and (d) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this Agreement. Should
Consultant discover any latent or unknown conditions materially differing from those inherent in
the work or as represented by City, Consultant shall immediately inform City of such fact and
shall not proceed except at Consultant's risk until written instructions are received from the
Contract Officer (as defined in Section. 4.2 hereof).
1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the
equipment, materials, papers and other components thereof to prevent losses or damages, and
shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation to correct
any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies
are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to
perform any additional services without compensation. Any addition in compensation not
exceeding five percent (5%) of the Contract Sum may be approved by'the Contract Officer.
Any greater increase must be approved by the City Council.
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in Exhibit "C" (the "Special Requirements"). In the
event of a conflict between the provisions of the Special Requirements and any other provisions
of this Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation &
Performance"), except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion, payment in
accordance with the percentage of completion of the services, payment for time and materials
based upon Consultant's rate schedule, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and similar
costs and expenses when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the
form approved by City's Finance Director, an invoice for services rendered prior to the date of
the invoice. Such invoice shall (1) describe in detail the services provided, including time and
materials, and (2) specify each staff member who has provided services and the number of
hours assigned to each such staff member. Such invoice shall contain a certification by a
principal member of Consultant specifying that the payment requested is for work performed in
accordance with the terms of this Agreement. City will pay Consultant for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working
day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "B" (the "Schedule of
Compensation & Performance"). Extensions to the time period specified in the Schedule of
Performance may be approved in writing by the Contract Officer.
3.3 Force Maieure. The time period specified in the Schedule of Performance for
performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence
of Consultant, including, but not restricted to, acts of God or of the public enemy, fires,
earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of
any governmental agency other than City, and unusually severe weather, if Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing
of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
delay, and extend the time for performing the services for the period of the forced delay when
153
and if in his or her judgment such delay is justified, and the Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement.
3.4 Term. The term of this agreement shall commence on January, 1, 2007 and
terminate on December 31, 2008. Unless earlier terminated in accordance with Sections 7.7 or
7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of
the services, except as otherwise provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
a. It is expressly understood that the experience, knowledge, capability, and reputation
of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the.
services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be Timothy R. Jonasson or such other
person as may be designated by the City Manager of City. It shall be Consultant's responsibility
to assure that the Contract Officer is kept informed of the progress of the performance of the
services and Consultant shall refer any decisions, which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Consultant, its principals and employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the
services required herein, except as otherwise set forth. Consultant shall perform all services
required herein as an independent contractor of City and shall remain at all times as to City a
wholly independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City.
4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to services to be performed hereunder
which are reasonably available to Consultant only from or through action by City.
154
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, Consultant shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, personal and public liability and property
damage insurance against all claims for injuries against persons or damages to property resulting
from Consultant's acts or omissions rising out of or related to Consultant's performance under
this Agreement. The insurance policy shall contain a severability of interest clause providing
that the coverage shall be primary for losses arising out of Consultant's performance hereunder
and neither City nor its insurers shall be required to contribute to any such loss. A certificate
evidencing the foregoing and naming City and its officers and employees as additional insured
shall be delivered to and approved by City prior to commencement of the services hereunder.
The amount of insurance required hereunder shall be $250,000 per individual; $500,000 per
occurrence for Personal Injury/Property Damage Coverage.
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all
claims for injuries against persons or damages to property arising out of the use of any
automobile by Consultant, its officers, any person directly or indirectly employed by Consultant,
any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly
or indirectiy out of or related to Consultant's performance under this Agreement. If Consultant
or Consultant's employees will use personal autos in any way on this project, Consultant shall
provide evidence of personal auto liability coverage for each such person. The term
"automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed
for travel on public roads. The automobile insurance policy shall contain a severability of
interest clause providing that coverage shall be primary for losses arising out of Consultant's
performance hereunder and neither City nor its insurers shall be required to contribute to such
loss. A certificate evidencing the foregoing and naming City and its officers and employees as
additional insured shall be delivered to and approved by City prior to commencement of the
services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws with employer's liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services" as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $1,000,000
per claim and in the aggregate. The policy must "pay on behalf of" the insured and must
include a provision establishing the insurer's duty to defend. The policy retroactive date shall be
on or before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted
carriers in the State of California and with an A.M. Bests rating of "A" or better and a minimum
financial size VII.
All insurance required by this Section shall be kept in effect during the term of this Agreement
and shall not be cancelable without thirty (30) days written notice to City of proposed
155
cancellation. . The procuring of such insurance or the delivery of policies or certificates
evidencing the same shall not be construed as a limitation of Consultant's obligation to
indemnify City, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification.
a. Indemnification for Professional Liability. When the law establishes a professional
standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend and hold harmless City and any and all of its officials,
employees and agents ("Indemnified Parties") from and against any and all losses, liabilities,
damages, costs and expenses, including attorney's fees and costs to the extent same are cause
in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers,
agents, employees or subconsultants (or any entity or individual that Consultant shall bear the
legal liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Consultant: shall not be liable for any injuries
or property damage resulting from the reuse of the design at a location other than that specified
in Exhibit C without the written consent of the Consultant.
b. Indemnification for Other Than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall indemnify,
defend and hold harmless City, and any and all of its employees, officials and agents from and
against any liability (including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest,
defense costs, and expert witness fees), where the same arise our of, are a consequence of, or
are in any way attributable to, in whole or in part, the performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable, including but not
limited to officers, agents, employees or subconsultants of Consultant.
C. General Indemnification Provisions. Consultant agrees to obtain executed indemnity
agreements with provisions identical to those set forth here in this section from each and every
subconsultant or any other person or entity involved by, for with or on behalf of Consultant in
the performance of this agreement. In the event Consultant fails to obtain such indemnity
obligations from others as required here, Consultant agrees to be fully responsible according to
the terms of this section. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns or heirs of Consultant and shall survive the termination of this agreement or
this section.
d. Indemnity Provisions for Contracts Related to Construction. Without affecting the
rights of City under any provision of this agreement, Consultant shall not be required to
indemnify and hold harmless City for liability attributable to the active negligence of City,
provided such active negligence is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage of the
liability involved, the obligation of Consultant will be for that entire portion or percentage of
liability not attributable to the active negligence of City.
1J0
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Consultant's failure to
maintain or secure appropriate policies or endorsements. Nothing herein contained shall be
construed as limiting in any way the extent to which Consultant may be held responsible for
payments of damages to persons or property resulting from Consultant's or its subcontractors'
performance of work under this Agreement.
5.4 General Conditions pertaining to provisions of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds City, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees
to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to
a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability
of any insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to
this agreement are intended to apply to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the application of
such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has not been first submitted to City and
approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Consultant shall not make any
I a~
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery
period) that may affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured endorsement to
Consultant's general liability policy, shall be delivered to City at or prior to the execution of this
Agreement. In the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is provided, City has
the right , but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by City shall
be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City
option.
8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail written
notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to
being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply first and on a
primary, non-contributing basis in relation to any other insurance or self insurance available to
City.
10. Consultant agrees to ensure that subcontractors, and any other party involved with
the project who is brought onto or involved in the project by Consultant, provide the same
minimum insurance coverage required of Consultant. Consultant agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the project will be submitted to City for
review.
11. Consultant agrees not to self -insure or to use any self -insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project conternplated by this agreement to self -
insure its obligations to City, If Consultant's existing coverage includes a deductible or self -
insured retention, the deductible or self -insured retention must be declared to the City. At that
time the City shall review options with the Consultant, which may include reduction or
elimination of the deductible or self -insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased benefit
to City.
IDO
13. For purposes of applying insurance coverage only, this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be deemed to
be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part of
City to inform Consultant of non-compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any other
regard.
15. Consultant will renew the required coverage annually as long as City, or its employees
or agents face an exposure from operations of any type pursuant to this agreement. This
obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that
effect.
16. Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing at least
the same coverage. Proof that such coverage has been ordered shall be submitted prior to
expiration. A coverage binder or letter from Consultant's insurance agent to this effect is
acceptable. A certificate of insurance and/or additional insured endorsement as required in
these specifications applicable to the renewing or new coverage must be provided to City within
five (5) days of the expiration of coverages.
17. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials and
agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Consultant for the cost
of additional insurance coverage required by this agreement. Any such provisions are to be
deleted with reference to City. It is not the intent of City to reimburse any third party for the
cost of complying with these requirements. There shall be no recourse against City for payment
of premiums or other amounts with respect thereto.
1;53
Consultant agrees to provide immediate notice to City of any claim or loss against Consultant
arising out of the work performed under this agreement. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of any such claim or
claims if they are likely to involve City.
6.0 RECORDS AND REPORTS.
6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning Consultant's performance of the services required by this Agreement as the
Contract Officer shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to
perform the services required by this Agreement and enable the Contract Officer to evaluate the
cost and the performance of such services. Books and records pertaining to costs shall be kept
and prepared in accordance with generally accepted accounting principals. The Contract Officer
shall have full and free access to such books and records at all reasonable times, including the
right to inspect, copy, audit, and make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by
Consultant, its employees, subcontractors and agents in the performance of this Agreement,
shall be the property of City and shall be delivered to City upon termination of this Agreement or
upon the earlier request of the Contract Officer, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full rights of
ownership of the documents and materials hereunder. Consultant shall cause all subcontractors
to assign to City any documents or materials prepared by them, and in the event Consultant
fails to secure such assignment, Consultant shall indemnify City for all damages suffered
thereby.
In the event City or any person, firm or corporation authorized by City reuses said
documents and materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes any changes or alterations in said
documents and materials, City hereby releases, discharges, and exonerates Consultant from
liability resulting from said change. The provisions of this clause shall survive the completion of
this Contract and shall thereafter remain in full force and effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents
and other materials prepared by Consultant in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Contract Officer or as
required by law. Consultant shall not disclose to any other entity or person any information
regarding the activities of City, except as required by law or as authorized by City.
7.0 ENFORCEMENT OF AGREEMENT.
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the County of Riverside, State of
i p
California, or any other appropriate court in such county, and Consultant covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party in writing of its contentions by submitting a claim therefore. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes
the cure of such default within forty-five (45) days after service of the notice, or such longer
period as may be permitted by the Contract Officer; provided that if the default is an immediate
danger to the health, safety and general welfare, City may take such immediate action as City
deems warranted. Compliance with the provisions of this section shall be a condition precedent
to termination of this Agreement for cause and to any legal action, and such compliance shall
not be a waiver of any party's right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's right to terminate this Agreement without
cause pursuant to Section 7.8.
7.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City due to the default of Consultant in the performance of the
services required by this Agreement.
7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non
defaulting party on any default shall impair such right or remedy or be construed as a waiver.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City's consent to or approval of any subsequent
act of Consultant. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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.
7.6 Legal Action. In addition to any other rights or remedies, either party may take legal
action, at law or at equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination
of this Agreement, except as specifically provided in the following Section 7.8 for termination
for cause. City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of
termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Consultant shall be entitled to compensation for
all services rendered prior to receipt of the notice of termination and for any services authorized
1GI
by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as
may be approved by the Contract Officer, except as provided in Section 7.3.
7.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over work and prosecute the same to completion by contract or
otherwise, and Consultant shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that City shall
use reasonable efforts to mitigate such damages), and City may withhold any payments to
Consultant for the purpose of setoff or partial payment of the: amounts owed City as previously
stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES: NONDISCRIMINATION.
8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or any default or
breach by City or for any amount which may become due to Consultant or to its successor, or
for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which affects his or her personal interest or the interest of
any corporation, partnership or association in which she: or he is, directly or indirectly,
interested, in violation of any State statute or regulation. Consultant warrants that it has not
paid or given and will not pay or give any third party any imoney or general consideration for
obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its
heirs, executors, 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 race,
color, creed, religion, sex, marital status, national origin or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, consent, approval, communication either
party desires or is required to give the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if
mailed as provided in this section.
1JN
To City:
CITY OF LA QUINTA
Attention: Thomas P. Genovese
City Manager
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92247-1504
To Consultant:
BUREAU VERITAS
Attention: Roy. F. Stephenson, P.E.
Principal -in -Charge
42575 Melanie Place, Suite E
Palm Desert, California 92211
9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties
and all previous understanding, negotiations and agreements are integrated into and superseded
by this Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent
-of the parties by an instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be: declared invalid or unenforceable
by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs,
or sections of this Agreement which are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder.
11 1103
9.5 Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and
that by so executing this Agreement the parties hereto are formally bound to the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA O.UINTA a California municipal corporation
Thomas P. Genovese, City Manager Data
ATTEST:
Veronica J. Montecino, CMC, City Clerk
APPROVED AS TO FORM:
M. Katherine Jenson, City Attorney
CONSULTANT:
By:
Name:
Title:
Date:
1 )4
Exhibit A
Scope of Services
Consultant shall provide on -call professional engineering map and plan check
services to the City.
1 G5
Exhibit B
Schedule of Compensation & Performance
Consultants Project Schedule is attached and made a part of this agreement.
Consultant shall complete services presented within the scope of work contained
within Exhibit "A" in accordance with the attached project schedule.
exiiie T- S
Bureau Veritas North America Inc.
Schedule of Charges
2006
Community Development
Billing Title Hourly Billing Rates
Building Official11
$155
Deputy Building Official
$140
Senior Inspector
$90
Inspector
$85
Inspector/Plans Exam IV
$130
Inspector/Plans Exam III
$120
Inspector/Plans; Exam II
$110
Inspector/Plans Exam I
1 $105
Permit Technician III
$90
Permit Technician II
$75
Permit Technician I
$70
Program Management / Engineering
Billing Title Hourly Billing Rates
Sr. En ineer II
$145
Sr. Engineer 1
$140
Engineer V
$130
Engineer IV
$125
Engineer III
$115
Engineer II
$105
Engineer 1
$90
Engineering Asst It
$85
Engineering Asst 1
$75
S ecialist/Desi
ner IV
$140
Specialist/Designer
III
$130
S ecialist/Desi
ner II
$120
S ecialist/Desi
ner 1
$110
Construction Management / Observation
Billing Title Hourly Billing Rates
Resident Engineer 11
$160
Resident En ineer 1
$145
Construction Manager
Director
$160
Construction Manager 1
$140
Construction Observer V
$120
Construction Observer IV
$115
Construction Observer III
$90
Construction Observer II
$80
Construction Observer 1
$75
Construction Technician
$75
Special Services / Administration
Billing Title Hourly Billing Rates
Principal
$230
Sr. Project Man a er
$175
Project Manager
$160
Technician IV
$105
Technician III
$90
Technician II
$75
Technician 1
$70
Administrative M mt
$100
SR. Admin Assistant
$90
AA III / Contracts S Ist.
$75
Admin Assistant II
$70
AA I/Clerical II/Facilities
$55
Clerical 1
$45
exloia r.8
Bureau Veritas North America Inc. �P� PE
Schedule of Charges m N
soon „zs
Professional Reimbursement:
The hourly billing rates include the cost of salaries of the Bureau Veritas employees, plus sick
leave, vacation, holiday and other fringe benefits. The percentage added to salary costs
includes indirect overhead costs and fee (profit). All employees classified as "non-exempt" by
the U.S. Department of Labor will be compensated at 1-1/2 times salary, as per state and
Federal wage and hour laws. Billing rates will be calculated accordingly for these overtime
hours.
Communication Fee:
Project Labor Times 3.0% which includes telecommunications, faxes, standard U.S. Mail,
mobile phones, and internet access and hardware.
Direct Expenses:
Reimbursement for direct expenses, as listed below, incurred in connection with the work, will
be at cost plus fifteen percent for items such as:
a. Maps, photographs, reproductions, printing, equipment rental' and special supplies
related to the work.
b. Consultants, soils engineers, surveyors, contractors, and other outside services.
c. Rented vehicles, local public transportation and taxis, travel and subsistence.
d. Specific telecommunications and delivery charges.
e. Special fees, insurance, permits, and licenses applicable to the work.
f. Outside computer processing, computation, and proprietary programs purchased for the
work.
Reimbursement for employee -owned vehicles used in connection with the work will be at the
current IRS per mile rate.
Other in-house charges for prints, reproductions and equipment use, etc. will be at standard
company rates.
The foregoing Schedule of Charges Is incorporated into the agreement for the services
provided, effective January 3, 2006 through December 31, 2006, and will be adjusted thereafter.
1r3
exw6ir e
Service Term, Schedule, & Cost Proposal
Consultant Bureau Veritas shall provide
services for a term of twenty-four (24) months beginning January 1, 2007 and terminating
on December 31, 2008.
OFFICE HOURS
The Consultant shall maintain normal office hours between 8:00 a.m. and 5:00 p.m.,
Monday through Friday. The Consultant shall be available to meet with City Staff during
normal working hours with 48 hours advance notice.
SCHEDULE
The Consultant shall adhere to the following plan check schedule
Ma Submi 1
Mao
Check Tum-Around (From Receipt, from City Staff)
1 Plan Check
15
Working Days
2"d Plan Check
10
Working Days
3`d Plan Check
5
Working Days
Plan Submittal
Plan Check Turn -Around (From Receipt from City Staff)
1 Plate n Check
15
Working Days
2"d Plan Check
10
Working Days
3rd Plan Check
5
Working Days
For larger, more complex projects such as golf course developments, one (1) additional
week for the 1 st and 2"d plan check shall be provided, if necessary to complete a thorough
plan check. The consultant shall advise the Contract Officer, in writing, if additional time is
needed.
Normal plan check operations will be conducted as follows:
1st Submittal
Upon completing the 1st review, the Consultant shall submit the "red lined" plans and a
copy of the applicable Plan Check List to the City. The City will provide supplemental
comment as necessary and forward "red lined" plans to the applicant.
2"d and Subseouent Submittals
Upon receipt of the 2" round plan checksubmittal from the applicant and upon completing
the 2°d review, the Consultant shall submit "red lined" plans and a copy of the applicable 2nd
review Plan Check List to the City. The City will provide supplemental comment as
applicable and forward 2"d review "red lined" plans to the applicant. The process of
applicant correction, Consultant review followed by City review and "red lined" plan return to
applicant shall continue until approvable plans are generated and a plan approval letter is
submitted to the City by the Consultant.
If necessary, the Consultant shall be available to meet with City staff and/orthe applicantto
review the plan check comments. The Consultant will communicate directly with the
applicant regarding plan check issues and clarifications. The City desires an average of no
more than 3 plan check rounds before final plan approval.
1G3
ExHI&rr B
The Consultant shall also maintain a plan check log as follows to track the plan check
status. The plan check log shall include the following information:
1) Receipt Date
2) Transmittal Dates
3) Who is Receiving the Information
4) Status of Plan Check
5) Project Description and City Plan Check Number
6) Plan Check Fees
The Consultant she# maintain all files for a period of three years. Copies of requested files
will be furnished to the City upon request.
Map Check Compensation
Map check payment shall be made in full at the following "fixed fee" rates as specified for
Tract Maps and Parcel Maps:
Tract Maps$ 2,500 base fee plus $ so per lot (including both lettered and
numbered lots)
Parcel Maps $ 2,500 base fee plus $ 5o per parcel (including both lettered and
numbered lots)
Lot Line Adjustment $ i.000 base fee plus $ so fee per lime adjusted
This rate shall be compensation for up to three (3) map checks. Payment for additional
map checks after the third check shall be made at the rates listed in the Schedule of Billing
Rates attached herewith forthe actual hours submitted in conformance with Section 2.2 of
the Agreement. An estimate of hours to complete the map check (after the third check)
shall be made in writing to the Contract Officer for approval as specified in Section 1.6 —
Additional Services of the Agreement.
Compensation for the first three map checks -shall be distributed at the following schedule:
First Map Check 65% of the Total Map Check Fee
Second Map Check 20% of the Total Map Check Fee
Third Map Check 15% of the Total Map Check Fee
The Consultant shall be compensated upon the completion of each map check as indicated
in the above schedule and in conformance with Section 2.2 of the Agreement. If a project
is suspended, either definitely or indefinitely, the Consultant shall be compensated based
on the last completed map check. If the map check process is completed prior to the third
map check, 100% of the map check fee will be paid upon completion of the final map
check.
Consultant may be requested to provide additional map checks after the third check.
Consultant receives no additional compensation for delivery or postage fees necessary to
transmit or receive plans from City.
Consultant also may be requested to provide supplemental map checking or general map
consulting services for specific development related engineering projects for the City as
applicable.
Payment shall be made in full at an hourly rate of.
' Hourly rate depends upon project/staff assigned. Please refer to the attached Bureau Veritas Schedule of Charges.
$ per hour— no overtime, travel time, expenses or other administrative chargeswill
be allowable over and above the stated hourly rate schedule.
Plan Check Compensation
Plan check payment shall be made in full at a "fixed fee" rate of,
$ goo per sheet (submittals with 1-5 sheets in quantity)
$ goo per sheet (submittals with 6-15 sheets in quantity)
$ 65o per sheet (submittals with 16 or more sheets in quantity)
Sheet counts are based on the number of sheets submitted for plan check. Sheets may
include title and detail sheets, street plans, storm drain plans, traffic plans, meandering
sidewalk and parkway grading plans, rough & precise grading plansat 30,40 or50 feet per
inch scale.
Consultant receives no additional compensation for review of supporting documents
including, but not limited to hydrology and hydraulic calculation reports, soils reports &
engineer's cost estimates, conditions of approval, tentative tract and parcel maps.
Consultant receives no additional compensation for delivery or postage fees necessary to
transmit or receive plans from City.
This rate shall be compensation for up to three (3) plan checks. Supplemental payment for
additional plan checks after the third check or for special engineering reports including
IAOMP Dust Control Plans, Storm Water Pollution Prevention Plans and Traffic Reports,
shall be in made at the rates listed in the Schedule of Billing Rates attached herewith for
the actual hours submitted in conformance with Section 2.2 of the Agreement. An estimate
of hours to complete the plan check (after the third plan check) or for special reports shall
be made in writing to the Contract Officer for approval as specified in Section 1.6 -
Additional Services of the Agreement.
Compensation forthe first three plan checks shall be distributed at the following schedule:
First Plan Check
65% of the Total Plan Check Fee
Second Plan Check
20%of the Total Plan Check Fee
Third Plan Check
15% of the Total Plan Check Fee
The Consultant shall be compensated upon the completion of each plan check as indicated
in the above schedule and in conformance with Section 2.2 of the Agreement. If a project
is suspended, either definitely or indefinitely, the Consultant shall bei compensated based
on the last completed plan check. If the plan check process is completed prior to the third
plan check,100% of the plan check fee will be paid upon completion of the final plan check.
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�XH+k�i i B
The Consultant shall separately invoice per plan and per plan check. No exceptionswill be
allowed to the payment schedule.
Consultant also may be requested to provide general civil consulting services for specific
development related engineering projects for the City as applicable.
Payment shall be made in full at an hourly rate of:
Hourly rate depends upon project/staff assigned. Please refer to the attached Bureau Veritas Schedule of Charges.
$ per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Prevailing Wage -In accordance wfth Section 1770 of the Labor Code, the City has ascertained and
does hereby specify that the prevailing wage rates shall be those provided in Article 1110-20.0, WAGE
RATES. The said rates shall include all employer paymentsthatare requited by Section 1773.1 of the
Labor Code. The City will fumish to the Contractor, upon request, a copy of such prevailing rates. It
shall be the duty of the Contractor to post a copy of such prevailing wages at the job site.
CONSULTANT:
By: Bureau Veritas
Name: Daniel A. York, PE, PLS
Title: Development Review Manager
Date: October 16, 2006
Exhibit C
Special Requirements
None.
173
PROFESSIONAL SERVICES AGREEMENT Attachment 2
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into
by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and
Engineering Resources of Southern California, Inc. ("Consultant"). The parties hereto agree as
follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to on -call engineering plan check services, as
specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by
this reference (the "services" or "work"). Consultant warrants that all services will be
performed in a competent, professional and satisfactory manner in accordance with the
standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of
La Quinta and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits Fees and Assessments. Except as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable
penalties and interest, which may be imposed by law and arise from or are necessary for the
performance of the services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it
has thoroughly investigated and considered the work to be performed, (b) it has investigated the
site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully
considered how the work should be performed, and (d) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this Agreement. Should
Consultant discover any latent or unknown conditions materially differing from those inherent in
the work or as represented by City, Consultant shall immediately inform City of such fact and
shall not proceed except at Consultant's risk until written instructions are received from the
Contract Officer (as defined in Section 4.2 hereof).
1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the
equipment, materials, papers and other components thereof to prevent losses or damages, and
shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation to correct
any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies
are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to
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perform any additional services without compensation. Any addition in compensation not
exceeding five percent (5%) of the Contract Sum may be approved by the Contract Officer.
Any greater increase must be approved by the City Council.
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in Exhibit "C" (the "Special Requirements"). In the
event of a conflict between the provisions of the Special Requirements and any other provisions
of this Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation &
Performance"), except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion, payment in
accordance with the percentage of completion of the services, payment for time and materials
based upon Consultant's rate schedule, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and similar
costs and expenses when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the
form approved by City's Finance Director, an invoice for services rendered prior to the date of
the invoice. Such invoice shall (1) describe in detail the services provided, including time and
materials, and (2) specify each staff member who has provided services and the number of
hours assigned to each such staff member. Such invoice shall contain a certification by a
principal member of Consultant specifying that the payment requested is for work performed in
accordance with the terms of this Agreement. City will pay Consultant for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working
day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "B" (the "Schedule of
Compensation & Performance"). Extensions to the time period specified in the Schedule of
Performance may be approved in writing by the Contract Officer.
3.3 Force Majeure. The time period specified in the Schedule of Performance for
performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence
of Consultant, including, but not restricted to, acts of God or of the public enemy, fires,
earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of
any governmental agency other than City, and unusually severe weather, if Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing
of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
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delay, and extend the time for performing the services for the period of the forced delay when
and if in his or her judgment such delay is justified, and the Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement.
3.4 Term. The term of this agreement shall commence on January, 1, 2007 and
terminate on December 31, 2008. Unless earlier terminated in accordance with Sections 7.7 or
7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of
the services, except as otherwise provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
a. It is expressly understood that the experience, knowledge, capability, and reputation
of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be Timothy R. Jonasson or such other
person as may be designated by the City Manager of City. It shall be Consultant's responsibility
to assure that the Contract Officer is kept informed of the progress of the performance of the
services and Consultant shall refer any decisions, which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Consultant, its principals and employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the
services required herein, except as otherwise set forth. Consultant shall perform all services
required herein as an independent contractor of City and shall remain at all times as to City a
wholly independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City.
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4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to :cervices to be performed hereunder
which are reasonably available to Consultant only from or through action by City.
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, Consultant shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, personal and public liability and property
damage insurance against all claims for injuries against persons or damages to property resulting
from Consultant's acts or omissions rising out of or related to Consultant's performance under
this Agreement. The insurance policy shall contain a severability of interest clause providing
that the coverage shall be primary for losses arising out of Consultant's performance hereunder
and neither City nor its insurers shall be required to contribute to any such loss. A certificate
evidencing the foregoing and naming City and its officers and employees as additional insured
shall be delivered to and approved by City prior to commencement of the services hereunder.
The amount of insurance required hereunder shall be $250,000 per individual; $500,000 per
occurrence for Personal Injury/Property Damage Coverage.
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all
claims for injuries against persons or damages to property arising out of the use of any
automobile by Consultant, its officers, any person directly or indirectly employed by Consultant,
any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly
or indirectly out of or related to Consultant's performance under this Agreement. If Consultant
or Consultant's employees will use personal autos in any way on this project, Consultant shall
provide evidence of personal auto liability coverage for each such person. The term
"automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed
for travel on public roads. The automobile insurance policy shall contain a severability of
interest clause providing that coverage shall be primary for losses arising out of Consultant's
performance hereunder and neither City nor its insurers shall be required to contribute to such
loss. A certificate evidencing the foregoing and naming City and its officers and employees as
additional insured shall be delivered to and approved by City prior to commencement of the
services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws with employer's liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services" as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $1,000,000
per claim and in the aggregate. The policy must "pay on behalf of" the insured and must
include a provision establishing the insurer's duty to defend. The policy retroactive date shall be
on or before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted
carriers in the State of California and with an A.M. Bests rating of "A" or better and a minimum
financial size VII.
All insurance required by this Section shall be kept in effect during the term of this Agreement
and shall not be cancelable without thirty (30) days written notice to City of proposed
cancellation. The procuring of such insurance or the delivery of policies or certificates
evidencing the same shall not be construed as a limitation of Consultant's obligation to
indemnify City, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification.
a. Indemnification for Professional Liability. When the law establishes a professional
standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend and hold harmless City and any and all of its officials,
employees and agents ("Indemnified Parties") from and against any and all losses, liabilities,
damages, costs and expenses, including attorney's fees and costs to the extent same are cause
in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers,
agents, employees or subconsultants (or any entity or individual that Consultant shall bear the
legal liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Consultant shall not be liable for any injuries
or property damage resulting from the reuse of the design at a location other than that specified
in Exhibit C without the written consent of the Consultant.
b. Indemnification for Other Than Professional LiabiRy. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall indemnify,
defend and hold harmless City, and any and all of its employees, officials and agents from and
against any liability (including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest,
defense costs, and expert witness fees), where the same arise our of, are a consequence of, or
are in any way attributable to, in whole or in part, the performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable, including but not
limited to officers, agents, employees or subconsultants of Consultant.
C. General Indemnification Provisions. Consultant agrees to obtain executed indemnity
agreements with provisions identical to those set forth here in this section from each and every
subconsultant or any other person or entity involved by, for with or on behalf of Consultant in
the performance of this agreement. In the event Consultant fails to obtain such indemnity
obligations from others as required here, Consultant agrees to be fully responsible according to
the terms of this section. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns or heirs of Consultant and shall survive the termination of this agreement or
this section.
d. Indemnity Provisions for Contracts Related to Construction. Without affecting the
rights of City under any provision of this agreement, Consultant shall not be required to
indemnify and hold harmless City for liability attributable to the active negligence of City,
provided such active negligence is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage of the
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liability involved, the obligation of Consultant will be for that entire portion or percentage of
liability not attributable to the active negligence of City.
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Consultant's failure to
maintain or secure appropriate policies or endorsements. Nothing herein contained shall be
construed as limiting in any way the extent to which Consultant may be held responsible for
payments of damages to persons or property resulting from Consultant's or its subcontractors'
performance of work under this Agreement.
5.4 General Conditions pertaining to provisions of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds City, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees
to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to
a loss. Consultant agrees to waive subrogation rights against: City regardless of the applicability
of any insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to
this agreement are intended to apply to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the application of
such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has not been first submitted to City and
approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including i any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
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6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Consultant shall not make any
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery
period) that may affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured endorsement to
Consultant's general liability policy, shall be delivered to City at or prior to the execution of this
Agreement. In the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is provided, City has
the right , but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by City shall
be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City
option.
8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail written
notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to
being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply first and on a
primary, non-contributing basis in relation to any other insurance or self insurance available to
City.
10. Consultant agrees to ensure that subcontractors, and any other party involved with
the project who is brought onto or involved in the project by Consultant, provide the same
minimum insurance coverage required of Consultant. Consultant agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the project will be submitted to City for
review.
11. Consultant agrees not to self -insure or to use any self -insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project contemplated by this agreement to self -
insure its obligations to City, If Consultant's existing coverage includes a deductible or self -
insured retention, the deductible or self -insured retention must be declared to the City. At that
time the City shall review options with the Consultant, which may include reduction or
elimination of the deductible or self -insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased benefit
to City.
13. For purposes of applying insurance coverage only, this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be deemed to
be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part of
City to inform Consultant of non-compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any other
regard.
15. Consultant will renew the required coverage annually as long as City, or its employees
or agents face an exposure from operations of any type pursuant to this agreement. This
obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that
effect.
16. Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing at least
the same coverage. Proof that such coverage has been ordered shall be submitted prior to
expiration. A coverage binder or letter from Consultant's insurance agent to this effect is
acceptable. A certificate of insurance and/or additional insured endorsement as required in
these specifications applicable to the renewing or new coverage must be provided to City within
five (5) days of the expiration of coverages.
17. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials and
agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Consultant for the cost
of additional insurance coverage required by this agreement. Any such provisions are to be
deleted with reference to City. It is not the intent of City to reimburse any third party for the
cost of complying with these requirements. There shall be no recourse against City for payment
of premiums or other amounts with respect thereto.
191.
Consultant agrees to provide immediate notice to City of any claim or loss against Consultant
arising out of the work performed under this agreement. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of any such claim or
claims if they are likely to involve City.
6.0 RECORDS AND REPORTS.
6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning Consultant's performance of the services required by this Agreement as the
Contract Officer shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to
perform the services required by this Agreement and enable the Contract Officer to evaluate the
cost and the performance of such services. Books and records pertaining to costs shall be kept
and prepared in accordance with generally accepted accounting principals. The Contract Officer
shall have full and free access to such books and records at all reasonable times, including the
right to inspect, copy, audit, and make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by
Consultant, its employees, subcontractors and agents in the performance of this Agreement,
shall be the property of City and shall be delivered to City upon termination of this Agreement or
upon the earlier request of the Contract Officer, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full rights of
ownership of the documents and materials hereunder. Consultant shall cause all subcontractors
to assign to City any documents or materials prepared by them, and in the event Consultant
fails to secure such assignment, Consultant shall indemnify City for all damages suffered
thereby.
In the event City or any person, firm or corporation authorized by City reuses said
documents and materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes any changes or alterations in said
documents and materials, City hereby releases, discharges, and exonerates Consultant from
liability resulting from said change. The provisions of this clause shall survive the completion of
this Contract and shall thereafter remain in full force and effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents
and other materials prepared by Consultant in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Contract Officer or as
required by law. Consultant shall not disclose to any other entity or person any information
regarding the activities of City, except as required by law or as authorized by City.
7.0 ENFORCEMENT OF AGREEMENT,
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the County of Riverside, State of
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California, or any other appropriate court in such county, and Consultant covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party in writing of its contentions by submitting a claim therefore. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes
the cure of such default within forty-five (45) days after service of the notice, or such longer
period as may be permitted by the Contract Officer; provided that if the default is an immediate
danger to the health, safety and general welfare, City may take such immediate action as City
deems warranted. Compliance with the provisions of this section shall be a condition precedent
to termination of this Agreement for cause and to any legal action, and such compliance shall
not be a waiver of any party's right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's right to terminate this Agreement without
cause pursuant to Section 7.8.
7.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City due to the default of Consultant in the performance of the
services required by this Agreement.
7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non
defaulting party on any default shall impair such right or remedy or be construed as a waiver.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City's consent to or approval of any subsequent
act of Consultant. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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.
7.6 Legal Action. In addition to any other rights or remedies, either party may take legal
action, at law or at equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination
of this Agreement, except as specifically provided in the following Section 7.8 for termination
for cause. City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of
termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Consultant shall be entitled to compensation for
all services rendered prior to receipt of the notice of termination and for any services authorized
1S3
by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as
may be approved by the Contract Officer, except as provided in Section 7.3.
7.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over work and prosecute the same to completion by contract or
otherwise, and Consultant shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that City shall
use reasonable efforts to mitigate such damages), and City may withhold any payments to
Consultant for the purpose of setoff or partial payment of the amounts owed City as previously
stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION
8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or any default or
breach by City or for any amount which may become due to Consultant or to its successor, or
for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which affects his or her personal interest or the interest of
any corporation, partnership or association in which she: or he is, directly or indirectly,
interested, in violation of any State statute or regulation. Consultant warrants that it has not
paid or given and will not pay or give any third party any money or general consideration for
obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its
heirs, executors, 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 race,
color, creed, religion, sex, marital status, national origin or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, consent, approval, communication either
party desires or is required to give the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if
mailed as provided in this section.
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To City:
CITY OF LA QUINTA
Attention: Thomas P. Genovese
City Manager
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92247-1504
To Consultant:
Engineering Resources of SC, Inc.
Attention: J. Matthew Brudin, P.E.
President
81955 Highway 111, Suite 210
Indio, California 92201
9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties
and all previous understanding, negotiations and agreements are integrated into and superseded
by this Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent
of the parties by an instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable
by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs,
or sections of this Agreement which "are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder.
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9.5 Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and
that by so executing this Agreement the parties hereto are formally bound to the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA QUINTA a California municipal corporation
Thomas P. Genovese, City Manager Date
ATTEST:
Veronica J. Montecino, CIVIC, City Clerk
APPROVED AS TO FORM:
M. Katherine Jenson, City Attorney
CONSULTANT:
By:
Name:
Title:
Date:
150
Exhibit A
Scope of Services
Consultant shall provide on -call professional engineering plan check services to the
City.
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Exhibit B
Schedule of Compensation & Performance
Consultants Project Schedule is attached and made a part of this agreement.
Consultant shall co mplete services presented within the scope of work contained
within Exhibit "A" in accordance with the attached project schedule.
13
iNGINEERING Exwierr 8
-RESOURCES
OF SOUTHERN CIWFORNIO, INC.
October 17, 2006
Tim Jonasson
Director of Public Works/City Engineer
CITY OF LA QUINTA
DEPARTMENT OF PUBLIC WORKS/ENGINEERING
P.O. Box 1504
78-495 Calle Tampico
La Quinta, CA 92247-1504
ON -CALL MAP AND PLAN CHECK SERVICES
FEE LETTER
Dear Mr. Jonasson:
Engineering Resources of Southern California, Inc., (ERSQ appreciates the opportunity to provide our fee
proposal to furnish consulting services for the City's Engineering Map/Plan Check Services.
We are currently working with city clients who compensate their consultants for plan check and map check work
on a "percent of the fee collected" basis, typically around eighty (80) percent. This leaves the remainder for city
administrative work. However, some of our clients prefer to compensate strictly on a time and materials basis.
We have no problem working either way with the city. Additionally, vie will make sure to provide backup
documentation as requested for any billing submitted showing an accurate accounting of our time as expended on
each plan check assignment for your monitoring purposes. Since we are local, we do not charge for travel to pick
up and deliver plans to the city. Additionally, no time will be charged for Mr. Brudin's supervision of me.
We submit this fee letter, and attached exhibit A along with our published rate schedule as part of our proposal
for all on -call engineering map/plan check services. The attached rate schedule for ERSC shows billing rates for
the various job classifications and is our normal billing method. This schedule is adjusted annually on January 1 �
to account for inflation. The rates shown include amounts for overhead, profit and reproduction charges.
However, for this assignment, we recognize that for this project, it is anticipated that a good portion of the work
will be performed on a percent of the fee collected by the City of La Quinta for the specified work.
There will be no mileage costs for pickup and delivery of any plan check assignments.
Plan check of grading and onsite improvement plans, and tract and parcel maps will be charged at 80 percent of
the fee collected by the city based upon the City's adopted fee schedule.
1P9
81955 HIGHWAY 111, SUITE 210, INDIO CALIFORNIA 92201
PHONE (760) 342-3019 - FAx (760) 342-5489
Mr. Tim Jonasson
Fee Letter
October 17, 2006
Page 2
The following hourly plan check rates shall apply for all other plan check work for the following individuals:
Mr. Joanne Singer, P.E.
$120.00
Mr. Matt Brudin, P.E.
$120.00
Mr.Mo Ahmadi, P.E.
$110.00
Mr. Kris Winchak, L.S.
$100.00
Mr. Robert Righetti
$110.00
Mr. David Merrell, P.E.
$110.00
Mr. Mike Stearns, P.E.
$120.00
Mr. Michael Lenz
$75.00
Mr. Joe Baldino
$95.00
Mr. Damien Boettcher
$90.00
Other plan check technicians will be billed per their classification as shown on the attached rate schedule.
However, no billing rate will exceed $120.00 per unless otherwise negotiated with the City of La Quinta.
ERSC makes a firm commitment to excellence in providing the City with complete plan checking services. We
look forward to the opportunity to further discuss the qualifications of ERSC and emphasize our eagerness to
serve the City in the immediate future.
Sincerely:
Engineering Resources of Southern California, Inc-
J. Matthew din, P.E.
President
i9O
Exhibit A — Service Term, Schedule & Cost Proposal
Consultant G—Ai SCE shall provide
services for a term of twenty-four (24) months beginning January 1, 2007 and terminating
on December 31, 2008.
OFFICE HOURS
The Consultant shall maintain normal office hours between 8:00 a.m. and 5:00 p.m.,
Monday through Friday. The Consultant shall be available to meet with City Staff during
normal working hours with 48 hours advance notice.
SCHEDULE
The Consultant shall adhere to the following plan check schedule:
Map Submittal
Map Check Turn -Around (1-rom KeceipT Trom Uiw Jldfl I
1s Plate n Check
1Q Working Days
2nd Plan Check
Working Days
3'd Plan Check
<' Working Days
Plan Submittal
Plan Check Turn -Around (From Receipt from City Staff)
1s Pla— n Check
1� Working Days
2A Plan Check
57" Working Days
P Plan Check
0 Working Days
For larger, more complex projects such as golf course developments, one (1) additional
week for the 1st and 2"d plan check shall be provided, if necessary to complete a thorough
plan check. The consultant shall advise the Contract Officer, in writing, if additional time is
needed.
Normal plan check operations will be conducted as follows:
1st Submittal
Upon completing the 1" review, the Consultant shall submit the 'red lined" plans and a
copy of the applicable Plan Check List to the City. The City will provide supplemental
comment as necessary and forward "red lined" plans to the applicant.
2"d and Subsequent Submittals
Upon receipt of the 2" round plan check submittal from the applicant and upon completing
the 2"d review, the Consultant shall submit "red lined" plans and a copy of the applicable 2nd
review Plan Check List to the City. The City will provide supplemental comment as
applicable and forward 2"d review `red lined" plans to the applicant. The process of
applicant correction, Consultant review followed by City review and `red lined" plan return
to applicant shall continue until approvable plans are generated and a plan approval letter
is submitted to the City by the Consultant.
If necessary, the Consultant shall be available to meet with City staff and/or the applicant
to review the plan check comments. The Consultant will communicate directly with the
applicant regarding plan check issues and clarifications. The City desires an average of no
more than 3 plan check rounds before final plan approval.
The Consultant shall also maintain a plan check log as follows to track the plan check
status. The plan check log shall include the following information:
1) Receipt Date
2) Transmittal Dates
3) Who is Receiving the Information
4) Status of Plan Check
5) Project Description and City Plan Check Number
6) Plan Check Fees
The Consultant shall maintain all files fora period of three years. Copies of requested files
will be furnished to the City upon request.
Map Check Compensation
Map check payment shall be made in full at the following "fixed fee" rates as specified
for Tract Maps and Parcel Maps:
Tract Maps $ ISM base fee plus 5 &Oper lot (including both lettered and
numbered lots)
Parcel Maps $ Zez-1:(A0_ base fee plus S_gMper parcel (including both lettered and
numbered lots)
Lot Line Adjustment $ SQ base fee plus SZsofee per line adjusted
This rate shall be compensation for up to three (3) map checks. Payment for additional
map checks after the third check shall be made at the rates listed in the Schedule of
Billing Rates attached herewith for the actual hours submitted in conformance with
Section 2.2 of the Agreement. An estimate of hours to complete the map check (after
the third check) shall be made in writing to the Contract Officer for approval as
specified in Section 1.6 — Additional Services of the Agreement.
Compensation for the first three map checks shall be distributed at the following
schedule:
First Map Check 65% of the Total Map Check Fee
Second Map Check 20% of the Total Map Check Fee
Third Map Check 15% of the Total Map Check Fee
The Consultant shall be compensated upon the completion of each map check as
indicated in the above schedule and in conformance with Section 2.2 of the
Agreement. If a project is suspended, either definitely or indefinitely, the Consultant
shall be compensated based on the last completed map check. If the map check
process is completed prior to the third map check, 100% of the map check fee will be
paid upon completion of the final map check.
Consultant may be requested to provide additional map checks after the third check.
Consultant receives no additional compensation for delivery or postage fees necessary to 192
transmit or receive plans from City.
Consultant also may be requested to provide supplemental map checking or general map
consulting services for specific development related engineering projects for the City as
applicable.
Payment shall be made in full at an hourly rate of:
$/oo per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Plan Check Compensation
Plan check payment shall be made in full at a "fixed fee" rate of:
$ jSjQQper sheet (submittals with 1-5 sheets in quantity)
$ per sheet (submittals with 6-15 sheets in quantity)
$ per sheet (submittals with 16 or more sheets in quantity)
Sheet counts are based on the number of sheets submitted for plan check. Sheets may
include title and detail sheets, street plans, storm drain plans, traffic plans, meandering
sidewalk and parkway grading plans, rough & precise grading plans at 30, 40 or 50 feet per
inch scale.
Consultant receives no additional compensation for review of supporting documents
including, but not limited to hydrology and hydraulic calculation reports, soils reports &
engineer's cost estimates, conditions of approval, tentative tract and parcel maps.
Consultant receives no additional compensation for delivery orlpostage fees necessary to
transmit or receive plans from City.
This rate shall be compensation for up to three (3) plan checks. Supplemental payment for
additional plan checks after the third check or for special engineering reports including
LAQMP Dust Control Plans, Storm Water Pollution Prevention Plans and Traffic Reports,
shall be in made at the rates listed in the Schedule of Billing Rates attached herewith for
the actual hours submitted in conformance with Section 2.2 of the Agreement. An estimate
of hours to complete the plan check (after the third plan check) or for special reports shall
be made in writing to the Contract Officer for approval as specified in Section 1.6 -
Additional Services of the Agreement.
Compensation for the first three plan checks shall be distributed at the following schedule:
First Plan Check 65% of the Total Plan Check Fee
Second Plan Check 20% of the Total Plan Check Fee
Third Plan Check 15% of the Total Plan Check Fee
The Consultant shall be compensated upon the completion of each plan check as
indicated in the above schedule and in conformance with Section 2.2 of the Agreement. If
a project is suspended, either definitely or indefinitely, the Consultant shall be
compensated based on the last completed plan check. 11 the plan check process is
completed prior to the third plan check, 100% of the plan check fee will be paid upon
completion of the final plan check. 1
The Consultant shall separately invoice per plan and per plan check. No exceptions will
be allowed to the payment schedule.
Consultant also may be requested to provide general civil consulting services for specific
development related engineering projects for the City as applicable.
Payment shall be made in full at an hourly rate of:
$ /—leo per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Prevailing Wage - In accordance with Section 1770 of the Labor Code, the City has ascertained
and does hereby specify that the prevailing wage rates shall be those provided in Article 1110-
20.0, WAGE RATES. The said rates shall include all employer payments that are required by
Section 1773.1 of the Labor Code. The City will furnish to the Contractor, upon request, a copy
of such prevailing rates. It shall be the duty of the Contractor to post a copy of such prevailing
wages at the job site.
CONSULTANT. -
By: Date:--140--i (64
Name: KMTi 39-01> tm
Title`s 2S� 1 c> ��'F
-RiNNNEERING
ESOURCES
OF SOWN UMBBBL INS.
SCHEDULE
OF HOURLY BILLING RATES
(EFFECTIVE JANUARY 1, 2006)
PRINCIPAL/PRESIDENT ..............
$ 1 75.00
PRINCIPAL PLANNER ............ $ 1 25.00
PRINCIPAL/VICE PRESIDENT
......... 165.00
SENIOR PLANNER .............. 105.00
SENIOR PRINCIPAL ENGINEER ......... 160.00
PRINCIPAL ENGINEER ................
135.00
ENGINEER V ........................
120.00
ADMINISTRATIVE SERVS. MANAGER $ 75.00
ENGINEER IV ........................
105.00
EXECUTIVE SECRETARY ......... 60.00
ENGINEER III ........................
95.00
SECRETARY ................... 50.00
ENGINEER II ........................
80.00
ENGINEER I .........................
70.00
SENIOR ENGINEERING TECHNICIAN .... $ 1 05.00
ENGINEERING AIDE II ............ $ 40.00
ENGINEERING TECHNICIAN 11
.......... 85.00
ENGINEERING AIDE I ............ 30.00
ENGINEERING TECHNICIAN I
.......... 70.00
ENGINEERING TECHNICIAN ...........
50.00
CONSTRUCTION MANAGER ............................................
2.6 X DIRECT SALARY
RESIDENT ENGINEER .................................................
2.6 X DIRECT SALARY
SENIOR INSPECTOR ..................................................
2.6 X DIRECT SALARY
2.6 X DIRECT SALARY
INSPECTOR..........................................................
$0.56/MILE
MILEAGE....................................................................
COST + 15%
DIRECTCOST...............................................................
TESTIMONY UNDER OATH WILL BE BILLED AT $220 PER HOUR
WITH A FOUR (4) HOUR MINIMUM
I`
Herd Drnc\FORMSV:RSC &hduh of Ilourly RJlmg Recev2006 wpd rcwcd M..h 29. 2006
ID:\ON
95
Exhibit C
Special Requirements
None.
1Ju
PROFESSIONAL SERVICES AGREEMENT Attachment 3
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into
by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and Hall
& Foreman, Inc. ("Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to on -call engineering map and plan check
services, as specified in the "Scope of Services" attached hereto as Exhibit "A" and
incorporated herein by this reference (the "services" or "work"). Consultant warrants that all
services will be performed in a competent, professional and satisfactory manner in accordance
with the standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of
La Quinta and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses Permits Fees and Assessments. Excerpt as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable
penalties and interest, which may be imposed by law and arise from or are necessary for the
performance of the services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it
has thoroughly investigated and considered the work to be performed, (b) it has investigated the
site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully
considered how the work should be performed, and (d) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this Agreement. Should
Consultant discover any latent or unknown conditions materially differing from those inherent in
the work or as represented by City, Consultant shall immediately inform City of such fact and
shall not proceed except at Consultant's risk until written instructions are received from the
Contract Officer (as defined in Section 4.2 hereof).
1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the
equipment, materials, papers and other components thereof to prevent losses or damages, and
shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation to correct
any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies
are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to
perform any additional services without compensation. Any addition in compensation not
j��
exceeding five percent (5%) of the Contract Sum may be approved by the Contract Officer.
Any greater increase must be approved by the City Council.
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in Exhibit "C" (the "Special Requirements"). In the
event of a conflict between the provisions of the Special Requirements and any other provisions
of this Agreement, the provisions of the Special Requirements; shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation &
Performance"), except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion, payment in
accordance with the percentage of completion of the services, payment for time and materials
based upon Consultant's rate schedule, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and similar
costs and expenses when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the
form approved by City's Finance Director, an invoice for services rendered prior to the date of
the invoice. Such invoice shall (1) describe in detail the services provided, including time and
materials, and (2) specify each staff member who has provided services and the number of
hours assigned to each such staff member. Such invoice shall contain a certification by a
principal member of Consultant specifying that the payment requested is for work performed in
accordance with the terms of this Agreement. City will pay Consultant for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working
day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "B" (the "Schedule of
Compensation & Performance"). Extensions to the time period specified in the Schedule of
Performance may be approved in writing by the Contract Officer.
3.3 Force Maieure. The time period specified in the Schedule of Performance for
performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence
of Consultant, including, but not restricted to, acts of God or of the public enemy, fires,
earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of
any governmental agency other than City, and unusually severe weather, if Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing
of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
delay, and extend the time for performing the services for the period of the forced delay when
193
and if in his or her judgment such delay is justified, and the Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement.
3.4 Term. The term of this agreement shall commence on January, 1, 2007 and
terminate on December 31, 2008. Unless earlier terminated in accordance with Sections 7.7 or
7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of
the services, except as otherwise provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
a. It is expressly understood that the experience, knowledge, capability, and reputation
of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be Timothy R. Jonasson or such other
person as may be designated by the City Manager of City. It shall be Consultant's responsibility
to assure that the Contract Officer is kept informed of the progress of the performance of the
services and Consultant shall refer any decisions, which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Consultant, its principals and employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the
services required herein, except as otherwise set forth. Consultant shall perform all services
required herein as an independent contractor of City and shall remain at all times as to City a
wholly independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City.
4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to services to be performed hereunder
which are reasonably available to Consultant only from or through action by City. 1013
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, Consultant shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, personal and public liability and property
damage insurance against all claims for injuries against persons or damages to property resulting
from Consultant's acts or omissions rising out of or related to Consultant's performance under
this Agreement. The insurance policy shall contain a severability of interest clause providing
that the coverage shall be primary for losses arising out of Consultant's performance hereunder
and neither City nor its insurers shall be required to contribute to any such loss. A certificate
evidencing the foregoing and naming City and its officers and employees as additional insured
shall be delivered to and approved by City prior to commencement of the services hereunder.
The amount of insurance required hereunder shall be $250,000 per individual; $500,000 per
occurrence for Personal Injury/Property Damage Coverage.
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all
claims for injuries against persons or damages to property arising out of the use of any
automobile by Consultant, its officers, any person directly or indirectly employed by Consultant,
any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly
or indirectly out of or related to Consultant's performance under this Agreement. If Consultant
or Consultant's employees will use personal autos in any way on this project, Consultant shall
provide evidence of personal auto liability coverage for each such person. The term
"automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed
for travel on public roads. The automobile insurance policy shall contain a severability of
interest clause providing that coverage shall be primary for losses arising out of Consultant's
performance hereunder and neither City nor its insurers shall !be required to contribute to such
loss. A certificate evidencing the foregoing and naming City and its officers and employees as
additional insured shall be delivered to and approved by City prior to commencement of the
services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws with employer's liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $1,000,000
per claim and in the aggregate. The policy must "pay on behalf of" the insured and must
include a provision establishing the insurer's duty to defend. The policy retroactive date shall be
on or before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted
carriers in the State of California and with an A.M. Bests rating of "A" or better and a minimum
financial size VII.
All insurance required by this Section shall be kept in effect during the term of this Agreement
and shall not be cancelable without thirty (30) days written notice to City of proposed
^00
cancellation. The procuring of such insurance or the delivery of policies or certificates
evidencing the same shall not be construed as a limitation of Consultant's obligation to
indemnify City, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification.
a. Indemnification for Professional Liability. When the law establishes a professional
standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend and hold harmless City and any and all of its officials,
employees and agents ("Indemnified Parties") from and against any and all losses, liabilities,
damages, costs and expenses, including attorney's fees and costs to the extent same are cause
in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers,
agents, employees or subconsultants (or any entity or individual that Consultant shall bear the
legal liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Consultant shall not be liable for any injuries
or property damage resulting from the reuse of the design at a location other than that specified
in Exhibit C without the written consent of the Consultant.
b. Indemnification for Other Than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall indemnify,
defend and hold harmless City, and any and all of its employees, officials and agents from and
against any liability (including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest,
defense costs, and expert witness fees), where the same arise our of, are a consequence of, or
are in any way attributable to, in whole or in part, the performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable, including but not
limited to officers, agents, employees or subconsultants of Consultant.
C. General Indemnification Provisions. Consultant agrees to obtain executed indemnity
agreements with provisions identical to those set forth here in this section from each and every
subconsultant or any other person or entity involved by, for oath or on behalf of Consultant in
the performance of this agreement. In the event Consultant fails to obtain such indemnity
obligations from others as required here, Consultant agrees to be fully responsible according to
the terms of this section. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns or heirs of Consultant and shall survive the termination of this agreement or
this section.
d. Indemnity Provisions for Contracts Related to Construction. Without affecting the
rights of City under any provision of this agreement, Consultant shall not be required to
indemnify and hold harmless City for liability attributable to the active negligence of City,
provided such active negligence is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage of the
liability involved, the obligation of Consultant will be for that entire portion or percentage of
liability not attributable to the active negligence of City.
n,
�1
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Consultant's failure to
maintain or secure appropriate policies or endorsements. Nothing herein contained shall be
construed as limiting in any way the extent to which Consultant may be held responsible for
payments of damages to persons or property resulting from Consultant's or its subcontractors'
performance of work under this Agreement.
5.4 General Conditions pertaining to provisions of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds City, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees
to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to
a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability
of any insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to
this agreement are intended to apply to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the application of
such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has riot been first submitted to City and
approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Consultant shall not make any
202'
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery
period) that may affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured endorsement to
Consultant's general liability policy, shall be delivered to City at or prior to the execution of this
Agreement. In the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is provided, City has
the right , but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by City shall
be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City
option.
8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail written
notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to
being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply first and on a
primary, non-contributing basis in relation to any other insurance or self insurance available to
City.
10. Consultant agrees to ensure that subcontractors, and any other party involved with
the project who is brought onto or involved in the project by Consultant, provide the same
minimum insurance coverage required of Consultant. Consultant agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the project will be submitted to City for
review.
11. Consultant agrees not to self -insure or to use any self -insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project contemplated by this agreement to self -
insure its obligations to City, If Consultant's existing coverage includes a deductible or self -
insured retention, the deductible or self -insured retention must be declared to the City. At that
time the City shall review options with the Consultant, which may include reduction or
elimination of the deductible or self -insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased benefit
to City.
3
13. For purposes of applying insurance coverage only, this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be deemed to
be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part of
City to inform Consultant of non-compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any other
regard.
15. Consultant will renew the required coverage annually as long as City, or its employees
or agents face an exposure from operations of any type pursuant to this agreement. This
obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that
effect.
16. Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing at least
the same coverage. Proof that such coverage has been ordered shall be submitted prior to
expiration. A coverage binder or letter from Consultant's insurance agent to this effect is
acceptable. A certificate of insurance and/or additional insured endorsement as required in
these specifications applicable to the renewing or new coverage must be provided to City within
five (5) days of the expiration of coverages.
17. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials and
agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Consultant for the cost
of additional insurance coverage required by this agreement. Any such provisions are to be
deleted with reference to City. It is not the intent of City to reimburse any third party for the
cost of complying with these requirements. There shall be no recourse against City for payment
of premiums or other amounts with respect thereto.
Consultant agrees to provide immediate notice to City of any claim or loss against Consultant
arising out of the work performed under this agreement. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of any such claim or
claims if they are likely to involve City.
6.0 RECORDS AND REPORTS.
6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning Consultant's performance of the services required by this Agreement as the
Contract Officer shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to
perform the services required by this Agreement and enable the Contract Officer to evaluate the
cost and the performance of such services. Books and records pertaining to costs shall be kept
and prepared in accordance with generally accepted accounting principals. The Contract Officer
shall have full and free access to such books and records al all reasonable times, including the
right to inspect, copy, audit, and make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by
Consultant, its employees, subcontractors and agents in the performance of this Agreement,
shall be the property of City and shall be delivered to City upon termination of this Agreement or
upon the earlier request of the Contract Officer, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full rights of
ownership of the documents and materials hereunder. Consultant shall cause all subcontractors
to assign to City any documents or materials prepared by them, and in the event Consultant
fails to secure such assignment, Consultant shall indemnify City for all damages suffered
thereby.
In the event City or any person, firm or corporation authorized by City reuses said
documents and materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes any changes or alterations in said
documents and materials, City hereby releases, discharges, and exonerates Consultant from
liability resulting from said change. The provisions of this clause shall survive the completion of
this Contract and shall thereafter remain in full force and effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents
and other materials prepared by Consultant in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Contract Officer or as
required by law. Consultant shall not disclose to any other entity or person any information
regarding the activities of City, except as required by law or as authorized by City.
7.0 ENFORCEMENT OF AGREEMENT.
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the County of Riverside, State of
�J5
California, or any other appropriate court in such county, and Consultant covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party in writing of its contentions by submitting a claim therefore. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes
the cure of such default within forty-five (45) days after service of the notice, or such longer
period as may be permitted by the Contract Officer; provided that if the default is an immediate
danger to the health, safety and general welfare, City may stake such immediate action as City
deems warranted. Compliance with the provisions of this section shall be a condition precedent
to termination of this Agreement for cause and to any legal action, and such compliance shall
not be a waiver of any party's right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's right to terminate this Agreement without
cause pursuant to Section 7.8.
7.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City due to the default of Consultant in the performance of the
services required by this Agreement.
7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non
defaulting party on any default shall impair such right or remedy or be construed as a waiver.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City's consent to or approval of any subsequent
act of Consultant. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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.
7.6 Legal Action. In addition to any other rights or remedies, either party may take legal
action, at law or at equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination
of this Agreement, except as specifically provided in the following Section 7.8 for termination
for cause. City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of
termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Consultant shall be entitled to compensation for
all services rendered prior to receipt of the notice of termination and for any services authorized
..UU
by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as
may be approved by the Contract Officer, except as provided in Section 7.3.
7.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over work and prosecute the same to completion by contract or
otherwise, and Consultant shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that City shall
use reasonable efforts to mitigate such damages), and City may withhold any payments to
Consultant for the purpose of setoff or partial payment of the amounts owed City as previously
stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or any default or
breach by City or for any amount which may become due to Consultant or to its successor, or
for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which affects his or her personal interest or the interest of
any corporation, partnership or association in which she: or he is, directly or indirectly,
interested, in violation of any State statute or regulation. Consultant warrants that it has not
paid or given and will not pay or give any third party any money or general consideration for
obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its
heirs, executors, 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 race,
color, creed, religion, sex, marital status, national origin or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, consent,approval, communication either
party desires or is required to give the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if
mailed as provided in this section.
J�
To City:
CITY OF LA QUINTA
Attention: Thomas P. Genovese
City Manager
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92247-1504
To Consultant:
Hall & Foreman, Inc.
Attention, Jon E. Bourgeois, P.E.
PresidentlPrincipal
9130 Anaheim Place, Suite 120
Rancho Cucamonga, California 91730
9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties
and all previous understanding, negotiations and agreements are integrated into and superseded
by this Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent
of the parties by an instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable
by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs,
or sections of this Agreement which are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder.
9.5 Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and
that by so executing this Agreement the parties hereto are formally bound to the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA QUINTA a California municipal corporation
Thomas P. Genovese, City Manager Date
ATTEST:
Veronica J. Montecino, CIVIC, City Clerk
APPROVED AS TO FORM:
M. Katherine Jenson, City Attorney
CONSULTANT:
By: _
Name:
Title:
Date:
r 0 9
Exhibit A
Scope of Services
Consultant shall provide on -call professional engineering map and plan check
services to the City.
:1J
Exhibit B
Schedule of Compensation & Performance
Consultants Project Schedule is attached and made: a part of this agreement.
Consultant shall complete services presented within the scope of work contained
within Exhibit "A" in accordance with the attached project schedule.
- Service Term, Schedule & Cost Proposal
Consultant Hall & Foreman, Inc, shall provide
services for a term of twenty-four (24) months beginning January 1, 2007 and terminating
on December 31, 2008.
OFFICE HOURS
The'Consultant small maintain normal office hours between 8:00 a.m. and 5:00 p.m.,
Monday through Friday. The Consultant shall be available to meet with City Staff during
normal working hours with 48 hours advance notice.
SCHEDULE
The Consultant shall adhere to the following plan check schedule:
Map
Submittal
Map Check Turn -Around (From Receipt from City Staff)
1s
Plate n Check
j_o__ Working Days
2"d
Plan Check
7_ Working Days
3rd
Plan Check
.7_Working Days
Plan Submittal
Plan Check Turn -Around (From Recut from City Staff)
1s
Planck
10_ Working Days
2"d
Plan Check
()_ Working Days
3`d
Plan Check
7_ Working Days
For larger, more complex projects such as golf course developments, one (1) additional
week for the 1 stand 2"d plan check shall be provided, if necessary to complete a thorough
plan check. The consultant shall advise the Contract Officer, in writing, if additional time is
needed.
Normal plan check operations will be conducted as follows:
1st Submittal
Upon completing the 1s' review, the Consultant shall submit the "red lined" plans and a
copy of the applicable Plan Check List to the City. The City will provide supplemental
comment as necessary and forward "red lined" plans to the applicant.
2"d and Subsequent Submittals
Upon receipt of the 2na round plan check submittal from the applicant and upon completing
the 2"d review, the Consultant shall submit "red lined" plans and a copy of the applicable 2"d
review Plan Check List to the City. The City will provide supplemental comment as
applicable and forward 2"d review "red lined" plans to the applicant. The process of
applicant correction, Consultant review followed by City review and "red lined" plan return
to applicant shall continue until approvable plans are generated and a plan approval letter
is submitted to the City by the Consultant.
If necessary, the Consultant shall be available to meet with City staff and/or the applicant
to review the plan check comments. The Consultant will communicate directly with the
applicant regarding plan check issues and clarifications. The City desires an average of no
more than 3 plan check rounds before final plan approval.
H /r
The Consultant shall also maintain a plan check log as follows to track the plan check
status. The plan check log shall include the following information:
1) Receipt Date
2) Transmittal Dates
3) Who is Receiving the Information
4) Status of Plan Check
5) Project Description and City Plan Check Number
6) Plan Check Fees
The Consultant shall maintain all files for a period of three years. Copies of requested files
will be furnished to the City upon request.
Map Check Compensation
Map check payment shall be made in full at the following "fixed fee" rates as specified
for Tract Maps and Parcel Maps:
Tract Maps $ 850— base fee plus $_,p_ per lot (including both lettered and
numbered lots)
Parcel Maps $ 500_ base fee plus $7_ per parcel (including both lettered and
numbered lots)
Lot Line Adjustment $ 200 base fee plus $ r0_ fee per line adjusted
This rate shall be compensation for up to three (3) map checks. Payment for additional
map checks after the third check shall be made at the rates listed in the Schedule of
Billing Rates attached herewith for the actual hours submitted in conformance with
Section 2.2 of the Agreement. An estimate of hours to complete the map check (after
the third check) shall be made in writing to the Contract Officer for approval as
specified in Section 1.6 - Additional Services of the Agreement.
Compensation for the first three map checks shall be distributed at the following
schedule:
First Map Check 65% of the Total Map Check Fee
Second Map Check 20% of the Total Map Check Fee
Third Map Check 15% of the Total Map Check Fee
The Consultant shall be compensated upon the completion of each map check as
indicated in the above schedule and in conformance with Section 2.2 of the
Agreement. If a project is suspended, either definitely or indefinitely, the Consultant
shall be compensated based on the last completed map check. If the map check
process is completed prior to the third map check, 100% of the map check fee will be
paid upon completion of the final map check.
Consultant may be requested to provide additional map checks after the third check.
Consultant receives no additional compensation for delivery or postage fees necessary to 13
transmit or receive plans from City.
6
Consultant also may be requested to provide supplemental map checking or general map
consulting services for specific development related engineering projects for the City as
applicable.
Payment shall be made in full at an hourly rate of:
$ 135 per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Plan Check Compensation
Plan check payment shall be made in full at a "fixed fee" rate of:
$ 550 per sheet (submittals with 1-5 sheets in quantity)
$ 550 — per sheet (submittals with 6-15 sheets in quantity)
$ 50o per sheet (submittals with 16 or more sheets in quantity)
Sheet counts are based on the number of sheets submitted for plan check. Sheets may
include title and detail sheets, street plans, storm drain plains, traffic plans, meandering
sidewalk and parkway grading plans, rough & precise grading plans at 30,40 or 50 feet per
inch scale.
Consultant receives no additional compensation for review of supporting documents
including, but not limited to hydrology and hydraulic calculation reports, soils reports &
engineer's cost estimates, conditions of approval, tentative tract and parcel maps.
Consultant receives no additional compensation for delivery or postage fees necessary to
transmit or receive plans from City.
This rate shall be compensation for up to three (3) plan checks. Supplemental paymentfor
additional plan checks after the third check or for special engineering reports including
LAQMP Dust Control Plans, Storm Water Pollution Prevention Plans and Traffic Reports,
shall be in made at the rates listed in the Schedule of Billing Rates attached herewith for
the actual hours submitted in conformance with Section 2.2 of the Agreement. An estimate
of hours to complete the plan check (after the third plan check) or for special reports shall
be made in writing to the Contract Officer for approval as specified in Section 1.6 -
Additional Services of the Agreement.
Compensation for the first three plan checks shall be distributed at the following schedule:
First Plan Check
65% of the Total Plan Check Fee
Second Plan Check
20% of the Total Plan Check Fee
Third Plan Check
15% of the Total Plan Check Fee
The Consultant shall be compensated upon the completion of each plan check as
indicated in the above schedule and in conformance with Section 2.2 of the Agreement. If
a project is suspended, either definitely or indefinitely, the Consultant shall be
compensated based on the last completed plan check. If the plan check process is
completed prior to the third plan check, 100% of the plan check fee will be paid upon 14
completion of the final plan check. `
The Consultant shall separately invoice per plan and per plan check. No exceptions will
be allowed to the payment schedule.
Consultant also may be requested to provide general civil consulting services for specific
development related engineering projects for the City as applicable.
Payment shall be made in full at an hourly rate of:
$_ per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Prevailing Wage - In accordance with Section 1770 of the Labor Code, the City has ascertained
and does hereby specify that the prevailing wage rates shall be those provided in Article 1110-
20.0, WAGE RATES. The said rates shall include all employer payments that are required by
Section 1773.1 of the Labor Code. The City will furnish to the Contractor, upon request, a copy
of such prevailing rates. It shall be the duty of the Contractor to post a copy of such prevailing
wages at the job site.
CONSULTANT:
By: rr
Name: Jon E. Bourgeoi _,�
Date:_ 10/17106
��� ; all & Forernanr, Inc.
SCHEDULE OF HOURLY BILLING RATES
Effective November 1, 2005
OFFICE:
Principal
$195.00/Hour
Sr. Project Director/Vice President
$180.00/Hour
Project Director
$165.00/Hour
Project Manager/Mapping Manager
$155.00/Hour
.Senior Engineer
$145.00/Hour
Project Engineer/Project Surveyor
$135.00/Hour
Senior Designer
$130.00/Hour
Staff Engineer
$115.00/Hour
Designer/Assistant Project Manager
$105.00/Hour
Drafter/CADD Technician
$ 95.00/Hour
Project Assistant/Expeditor
$ 80.00/Hour
Assistant Engineer
$ 75.00/Hour
Principal Planner
$135.00/Hour
Planner
$100.00/Hour
Senior Analyst
$ 95.00/Hour
Sr. Inspector/Resident Engineer
$115.00/Hour
Inspector
$105.00/Hour
Expert Witness/Litigation Consultation
$300.00/Hour
SURVEY:
Survey Manager
$155.00/Hour
Survey Analyst
$105.00/Hour
3-Person Survey Crew
$245.00/Hour
2-Person Survey Crew
$200.00/Hour
1-Person Survey Crew
$150.00/Hour
3-Person Survey Crew with GPS
$270.00/Hour
2-Person Survey Crew with GPS
$225.00/Hour
Note 1: Client shall pay the cost, plus 15%, for any applicable governmental fees, title company
charges, well monuments, outside vendor reproduction costs, in-house reproduction cost, plotting costs,
mileage, and delivery or messenger services incurred on Client's behalf. If requested, HFI will provide a
computer printout, which details these costs. HFI does not typically provide any additional back up for
these generally nominal expenses as part of our fee.
Note 2: In the event Consultant's fee schedule changes due to any increase of costs such as the
granting of wage increases and/or other employee benefits to field or office employees due to the terms
of any labor agreement, or increase in the cost of living, during the lifetime of this agreement, a
percentage increase shall be applied to all remaining fees and charges to reflect the increased costs.
Note 3: The fee stated herein does not include any sales or use tax. In the event that a sales and/or
use tax is imposed by local, state, or federal authority, upon the services rendered hereunder, such
sales and/or use tax shall be in addition to said fee herein, and shall be the full responsibility of the
Client.
tifo
Exhibit C
Special Requirements
None.
217
PROFESSIONAL SERVICES AGREEMENT Attachment 4
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into
by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and
Willdan ("Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to on -call engineering plan check services, as
specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by
this reference (the "services" or "work"). Consultant warrants that all services will be
performed in a competent, professional and satisfactory manner in accordance with the
standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of
La Quinta and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Excerpt as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable
penalties and interest, which may be imposed by law and arise from or are necessary for the
performance of the services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it
has thoroughly investigated and considered the work to be performed, (b) it has investigated the
site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully
considered how the work should be performed, and (d) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this Agreement. Should
Consultant discover any latent or unknown conditions materially differing from those inherent in
the work or as represented by City, Consultant shall immediately inform City of such fact and
shall not proceed except at Consultant's risk until written instructions are received from the
Contract Officer (as defined in Section 4.2 hereof).
1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the
equipment, materials, papers and other components thereof to prevent losses or damages, and
shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation to correct
any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies
are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to
perform any additional services without compensation. Any addition in compensation not
exceeding five percent (5%) of the Contract Sum may be approved by the Contract Officer.
Any greater increase must be approved by the City Council.
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in Exhibit "C" (the "Special Requirements"). In the
event of a conflict between the provisions of the Special Requirements and any other provisions
of this Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit "i (the "Schedule of Compensation &
Performance"), except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion, payment in
accordance with the percentage of completion of the services, payment for time and materials
based upon Consultant's rate schedule, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and similar
costs and expenses when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the
form approved by City's Finance Director, an invoice for services rendered prior to the date of
the invoice. Such invoice shall (1) describe in detail the services provided, including time and
materials, and (2) specify each staff member who has provided services and the number of
hours assigned to each such staff member. Such invoice shall contain a certification by a
principal member of Consultant specifying that the payment requested is for work performed in
accordance with the terms of this Agreement. City will pay Consultant for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working
day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "i (the "Schedule of
Compensation & Performance"). Extensions to the time period specified in the Schedule of
Performance may be approved in writing by the Contract Officer.
3.3 Force Maieure. The time period specified in the Schedule of Performance for
performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence
of Consultant, including, but not restricted to, acts of God or of the public enemy, fires,
earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of
any governmental agency other than City, and unusually severe weather, if Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing
of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
delay, and extend the time for performing the services for 1he period of the forced delay when�
and if in his or her judgment such delay is justified, and the Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement.
3.4 Term. The term of this agreement shall commence on January, 1, 2007 and
terminate on December 31, 2008. Unless earlier terminated in accordance with Sections 7.7 or
7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of
the services, except as otherwise provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
a. It is expressly understood that the experience, knowledge, capability, and reputation
of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be Timothy R. Jonasson or such other
person as may be designated by the City Manager of City. It shall be Consultant's responsibility
to assure that the Contract Officer is kept informed of the progress of the performance of the
services and Consultant shall refer any decisions, which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Consultant, its principals and employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the
services required herein, except as otherwise set forth. Consultant shall perform all services
required herein as an independent contractor of City and shall remain at all times as to City a
wholly independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City.
4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to :services to be performed hereunder
which are reasonably available to Consultant only from or through action by City.
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5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, Consultant shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, personal and public liability and property
damage insurance against all claims for injuries against persons or damages to property resulting
from Consultant's acts or omissions rising out of or related to Consultant's performance under
this Agreement. The insurance policy shall contain a severability of interest clause providing
that the coverage shall be primary for losses arising out of Consultant's performance hereunder
and neither City nor its insurers shall be required to contribute to any such loss. A certificate
evidencing the foregoing and naming City and its officers and employees as additional insured
shall be delivered to and approved by City prior to commencement of the services hereunder.
The amount of insurance required hereunder shall be $250,000 per individual; $500,000 per
occurrence for Personal Injury/Property Damage Coverage.
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all
claims for injuries against persons or damages to property arising out of the use of any
automobile by Consultant, its officers, any person directly or indirectly employed by Consultant,
any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly
or indirectly out of or related to Consultant's performance under this Agreement. If Consultant
or Consultant's employees will use personal autos in any way on this project, Consultant shall
provide evidence of personal auto liability coverage for each such person. The term
"automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed
for travel on public roads. The automobile insurance policy shall contain a severability of
interest clause providing that coverage shall be primary for losses arising out of Consultant's
performance hereunder and neither City nor its insurers shall be required to contribute to such
loss. A certificate evidencing the foregoing and naming City and its officers and employees as
additional insured shall be delivered to and approved by City prior to commencement of the
services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws with employer's liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $1,000,000
per claim and in the aggregate. The policy must "pay on behalf of" the insured and must
include a provision establishing the insurer's duty to defend. The policy retroactive date shall be
on or before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted
carriers in the State of California and with an A.M. Bests rating of "A" or better and a minimum
financial size VII.
All insurance required by this Section shall be kept in effect during the term of this Agreement
and shall not be cancelable without thirty (30) days written notice to City of proposed
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cancellation. The procuring of such insurance or the delivery of policies or certificates
evidencing the same shall not be construed as a limitation of Consultant's obligation to
indemnify City, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification.
a. Indemnification for Professional Liability. When the law establishes a professional
standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend and hold harmless City and any and all of its officials,
employees and agents ("Indemnified Parties") from and against any and all losses, liabilities,
damages, costs and expenses, including attorney's fees and costs to the extent same are cause
in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers,
agents, employees or subconsultants (or any entity or individual that Consultant shall bear the
legal liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Consultant shall not be liable for any injuries
or property damage resulting from the reuse of the design at a location other than that specified
in Exhibit C without the written consent of the Consultant.
b. Indemnification for Other Than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall indemnify,
defend and hold harmless City, and any and all of its employees, officials and agents from and
against any liability (including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest,
defense costs, and expert witness fees), where the same arise our of, are a consequence of, or
are in any way attributable to, in whole or in part, the performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable, including but not
limited to officers, agents, employees or subconsultants of Consultant.
C. General Indemnification Provisions. Consultant agrees to obtain executed indemnity
agreements with provisions identical to those set forth here in this section from each and every
subconsultant or any other person or entity involved by, for with or on behalf of Consultant in
the performance of this agreement. In the event Consultant fails to obtain such indemnity
obligations from others as required here, Consultant agrees to be fully responsible according to
the terms of this section. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns or heirs of Consultant and shall survive the termination of this agreement or
this section.
d. Indemnity Provisions for Contracts Related to Construction. Without affecting the
rights of City under any provision of this agreement, Consultant shall not be required to
indemnify and hold harmless City for liability attributable to the active negligence of City,
provided such active negligence is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage of the
liability involved, the obligation of Consultant will be for that entire portion or percentage of
liability not attributable to the active negligence of City.
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Consultant's failure to
maintain or secure appropriate policies or endorsements. Nothing herein contained shall be
construed as limiting in any way the extent to which Consultant may be held responsible for
payments of damages to persons or property resulting from Consultant's or its subcontractors'
performance of work under this Agreement.
5.4 General Conditions pertaining to provisions of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds City, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees
to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to
a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability
of any insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to
this agreement are intended to apply to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the application of
such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has not been first submitted to City and
approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Consultant shall not make any
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery
period) that may affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured endorsement to
Consultant's general liability policy, shall be delivered to City at or prior to the execution of this
Agreement. In the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is provided, City has
the right , but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by City shall
be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City
option.
8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail written
notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to
being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply first and on a
primary, non-contributing basis in relation to any other insurance or self insurance available to
City.
10. Consultant agrees to ensure that subcontractors, and any other party involved with
the project who is brought onto or involved in the project by Consultant, provide the same
minimum insurance coverage required of Consultant. Consultant agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the project will be submitted to City for
review.
11. Consultant agrees not to self -insure or to use any self -insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project contemplated by this agreement to self -
insure its obligations to City, If Consultant's existing coverage includes a deductible or self -
insured retention, the deductible or self -insured retention must be declared to the City. At that
time the City shall review options with the Consultant, which may include reduction or
elimination of the deductible or self -insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased benefit
to City.
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13. For purposes of applying insurance coverage only, this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be deemed to
be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actuai or alleged failure on the part of
City to inform Consultant of non-compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any other
regard.
15. Consultant will renew the required coverage annually as long as City, or its employees
or agents face an exposure from operations of any type pursuant to this agreement. This
obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that
effect.
16. Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing at least
the same coverage. Proof that such coverage has been ordered shall be submitted prior to
expiration. A coverage binder or letter from Consultant's insurance agent to this effect is
acceptable. A certificate of insurance and/or additional insured endorsement as required in
these specifications applicable to the renewing or new coverage must be provided to City within
five (5) days of the expiration of coverages.
17. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials and
agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Consultant for the cost
of additional insurance coverage required by this agreement. Any such provisions are to be
deleted with reference to City. It is not the intent of City to reimburse any third party for the
cost of complying with these requirements. There shall be no recourse against City for payment
of premiums or other amounts with respect thereto.
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Consultant agrees to provide immediate notice to City of any claim or loss against Consultant
arising out of the work performed under this agreement. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of any such claim or
claims if they are likely to involve City.
6.0 RECORDS AND REPORTS.
6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning Consultant's performance of the services required by this Agreement as the
Contract Officer shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to
perform the services required by this Agreement and enable the Contract Officer to evaluate the
cost and the performance of such services. Books and records pertaining to costs shall be kept
and prepared in accordance with generally accepted accounting principals. The Contract Officer
shall have full and free access to such books and records at all reasonable times, including the
right to inspect, copy, audit, and make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by
Consultant, its employees, subcontractors and agents in the performance of this Agreement,
shall be the property of City and shall be delivered to City upon termination of this Agreement or
upon the earlier request of the Contract Officer, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full rights of
ownership of the documents and materials hereunder. Consultant shall cause all subcontractors
to assign to City any documents or materials prepared by them, and in the event Consultant
fails to secure such assignment, Consultant shall indemnify City for all damages suffered
thereby.
In the event City or any person, firm or corporation authorized by City reuses said
documents and materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes any changes or alterations in said
documents and materials, City hereby releases, discharges, and exonerates Consultant from
liability resulting from said change. The provisions of this clause shall survive the completion of
this Contract and shall thereafter remain in full force and effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents
and other materials prepared by Consultant in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Contract Officer or as
required by law. Consultant shall not disclose to any other entity or person any information
regarding the activities of City, except as required by law or as authorized by City.
7.0 ENFORCEMENT OF AGREEMENT.
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Consultant covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party in writing of its contentions by submitting a claim therefore. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes
the cure of such default within forty-five (45) days after service of the notice, or such longer
period as may be permitted by the Contract Officer; provided that if the default is an immediate
danger to the health, safety and general welfare, City may take such immediate action as City
deems warranted. Compliance with the provisions of this section shall be a condition precedent
to termination of this Agreement for cause and to any legal action, and such compliance shall
not be a waiver of any party's right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's right to terminate this Agreement without
cause pursuant to Section 7.8.
7.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City due to the default of Consultant in the performance of the
services required by this Agreement.
7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non
defaulting party on any default shall impair such right or remedy or be construed as a waiver.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City's consent to or approval of any subsequent
act of Consultant. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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.
7.6 Legal Action. In addition to any other rights or remedies, either party may take legal
action, at law or at equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination
of this Agreement, except as specifically provided in the following Section 7.8 for termination
for cause. City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of
termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Consultant shall be entitled to compensation for
all services rendered prior to receipt of the notice of termination and for any services authorized
by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as
may be approved by the Contract Officer, except as provided in Section 7.3.
7.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over work and prosecute the same to completion by contract or
otherwise, and Consultant shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that City shall
use reasonable efforts to mitigate such damages), and City may withhold any payments to
Consultant for the purpose of setoff or partial payment of the: amounts owed City as previously
stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES- NONDISCRIMINATION,
8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or any default or
breach by City or for any amount which may become due to Consultant or to its successor, or
for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which affects his or her personal interest or the interest of
any corporation, partnership or association in which she or he is, directly or indirectly,
interested, in violation of any State statute or regulation. Consultant warrants that it has not
paid or given and will not pay or give any third party any money or general consideration for
obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its
heirs, executors, 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 race,
color, creed, religion, sex, marital status, national origin or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, consent, approval, communication either
party desires or is required to give the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if
mailed as provided in this section. #� C) 3
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To City:
CITY OF LA QUINTA
Attention: Thomas P. Genovese
City Manager
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92247-1504
To Consultant:
Willdan
Attention: Ronald L. Espalin, P.E.
Sr. Vice President
650 Hospitality Lane, Suite 400
San Bernadino, California 92408-3317
9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties
and all previous understanding, negotiations and agreements are integrated into and superseded
by this Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent
of the parties by an instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable
by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs,
or sections of this Agreement which are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder.
9.5 Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and
that by so executing this Agreement the parties hereto are formally bound to the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA QUINTA a California municipal corporation
Thomas P. Genovese, City Manager Date
ATTEST:
Veronica J. Montecino, CIVIC, City Clerk
APPROVED AS TO FORM:
M. Katherine Jenson, City Attorney
CONSULTANT:
By:
Name:
Title:
Date:
Exhibit A
Scope of Services
Consultant shall provide on -call professional engineering plan check services to the
City.
Exhibit B
Schedule of Compensation & Performance
Consultants Project Schedule is attached and made a part of this agreement.
Consultant shall complete services presented within the scope of work contained
within Exhibit "A" in accordance with the attached project schedule.
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Service Term, Schedule & Cost Proposal
Consultant V/ i IIcAo 1 shall provide
services for a term of twenty-four (24) months beginning January 1, 2007 and terminating
on December 31, 2008.
OFFICE HOURS
The Consultant shall maintain normal office hours between 8:00 a.m. and 5:00 p.m.,
Monday through Friday. The Consultant shall be available to meet with City Staff during
normal working hours with 48 hours advance notice.
SCHEDULE
The Consultant shall adhere to the following plan check schedule:
Map Submittal Map Check Turn -Around (From Receipt from City Staff)
15 Plate n Check / { —_ Working Days
2nd Plan Check N/r1 Working Days
3rd Plan Check — Working Days
Plan Submittal Plan Check Turn -Around (From Receipt from City Staff)
15 Plan n Check 15 Working Days
2nd Plan Check 10 Working Days
3rd Plan Check S Working Days
For larger, more complex projects such as golf course developments, one (1) additional
week for the 1 s' and 2nd plan check shall be provided, if necessary to complete a thorough
plan check. The consultant shall advise the Contract Officer, in writing, if additional time is
needed.
Normal plan check operations will be conducted as follows:
15' Submittal
Upon completing the 1s' review, the Consultant shall submit the 'red lined" plans and a
copy of the applicable Plan Check List to the City. The City will provide supplemental
comment as necessary and forward "red lined" plans to the applicant.
2nd and Subsequent Submittals
Upon receipt of the 2na round plan check submittal from the applicant and upon completing
the 2nd review, the Consultant shall submit red lined" plans and a copy of the applicable 2nd
review Plan Check List to the City. The City will provide supplemental comment as
applicable and forward 2nd review "red lined" plans to the applicant. The process of
applicant correction, Consultant review followed by City review and "red lined" plan return
to applicant shall continue until approvable plans are generated and a plan approval letter
is submitted to the City by the Consultant.
If necessary, the Consultant shall be available to meet with City staff and/or the applicant
to review the plan check comments. The Consultant will communicate directly with the
applicant regarding plan check issues and clarifications. The City desires an average of no
more than 3 plan check rounds before final plan approval.
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The Consultant shall also maintain a plan check log as follows to track the plan check
status. The plan check log shall include the following information:
1) Receipt Date
2) Transmittal Dates
3) Who is Receiving the Information
4) Status of Plan Check
5) Project Description and City Plan Check Number
6) Plan Check Fees
The Consultant shall maintain all flies for a period of three years. Copies of requested files
will be furnished to the City upon request.
Map Check Compensation
Map check payment shall be made in full at the following "fixed fee" rates as specified
for Tract Maps and Parcel Maps:
Tract Maps $A4base fee plus $_
numbered lots)
Parcel Maps $ /� base fee plus $
num eyed lots)
Lot Line Adjustment $* base fee plus $
per lot (including both lettered and
per parcel (including both lettered and
fee per line adjusted
This rate shall be compensation for up to three (3) map checks. Payment for additional
map checks after the third check shall be made at the rates listed in the Schedule of
Billing Rates attached herewith for the actual hours submitted in conformance with
Section 2.2 of the Agreement. An estimate of hours to complete the map check (after
the third check) shall be made in writing to the Contract Officer for approval as
specified in Section 1.6 — Additional Services of the Agreement.
Compensation for the first three map checks shall be distributed at the following
schedule:
First Map Check 65% of the Total Map Check Fee
Second Map Check 20% of the Total Map Check Fee
Third Map Check 15% of the Total Map Check Fee
The Consultant shall be compensated upon the completion of each map check as
indicated in the above schedule and in conformance with Section 2.2 of the
Agreement. If a project is suspended, either definitely or indefinitely, the Consultant
shall be compensated based on the last completed map check. If the map check
process is completed prior to the third map check, 100% of the map check fee will be
paid upon completion of the final map check.
Consultant may be requested to provide additional map checks after the third check.
Consultant receives no additional compensation for delivery or postage fees necessary to
transmit or receive plans from City.
Consultant also may be requested to provide supplemental map checking or general map
consulting services for specific development related engineering projects for the City as
applicable.
Payment shall be made in full at an hourly rate of:
$ / 20 per hour — no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Plan Check Compensation
Plan check payment shall be made in full at a "fixed fee" rate of:
$ 700 per sheet (submittals with 1-5 sheets in quantity)
$ LSD per sheet (submittals with 6-15 sheets in quantity)
$ k2a per sheet (submittals with 16 or more sheets in quantity)
Sheet counts are based on the number of sheets submitted for plan check. Sheets may
include title and detail sheets, street plans, storm drain plans, traffic plans, meandering
sidewalk and parkway grading plans, rough & precise grading plans at 30,40 or 50 feet per
inch scale.
Consultant receives no additional compensation for review of supporting documents
including, but not limited to hydrology and hydraulic calculation reports, soils reports &
engineer's cost estimates, conditions of approval, tentative tract and parcel maps.
Consultant receives no additional compensation for delivery or postage fees necessary to
transmit or receive plans from City.
This rate shall be compensation for up to three (3) plan checks: Supplemental payment for
additional plan checks after the third check or for special engineering reports including
LAQMP Dust Control Plans, Storm Water Pollution Prevention Plans and Traffic Reports,
shall be in made at the rates listed in the Schedule of Billing Rates attached herewith for
the actual hours submitted in conformance with Section 2.2 of the Agreement. An estimate
of hours to complete the plan check (after the third plan cheek) or for special reports shall
be made in writing to the Contract Officer for approval as specified in Section 1.6 -
Additional Services of the Agreement.
Compensation for the first three plan checks shall be distributed at the following schedule:
First Plan Check 65% of the Total Plan Check Fee
Second Plan Check 20% of the Total Plan Check Fee
Third Plan Check 15% of the Total Plan Check Fee
The Consultant shall be compensated upon the completion of each plan check as
indicated in the above schedule and in conformance with Section 2.2 of the Agreement. If
a project is suspended, either definitely or indefinitely, the Consultant shall be
compensated based on the last completed plan check. 11` the plan check process is 1�5
completed prior to the third plan check, 100% of the plan check fee will be paid upon
completion of the final plan check.
The Consultant shall separately invoice per plan and per plan check. No exceptions will
be allowed to the payment schedule.
Consultant also may be requested to provide general civil consulting services for specific
development related engineering projects for the City as applicable.
Payment shall be made in full at an hourly rate of:
$ / ZO per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Prevailing Wage - In accordance with Section 1770 of the Labor Code, the City has ascertained
and does hereby specify that the prevailing wage rates shall be those provided in Article 1 1 10-
20.0, WAGE RATES. The said rates shall include all employer payments that are required by
Section 1773.1 of the Labor Code. The City will furnish to the Contractor, upon request, a copy
of such prevailing rates. It shall be the duty of the Contractor to post a copy of such prevailing
wages at the job site.
CONSULTANT:
Date: OGibbt%( RG ZOCCn
Name: 'Kono ,A L . Esp0.l,f�
Title: Sf \,Ce- �(e—S18e4l�
i.JU
Exhibit C
Special Requirements
None.
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PROFESSIONAL SERVICES AGREEMENT Attachment 5
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into
by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and NRO
("Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to on -call engineering map and plan check
services, as specified in the "Scope of Services" attached hereto as Exhibit "A" and
incorporated herein by this reference (the "services" or "work"). Consultant warrants that all
services will be performed in a competent, professional and satisfactory manner in accordance
with the standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of
La Quinta and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses Permits, Fees and Assessments. Except as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable
penalties and interest, which may be imposed by law and arise from or are necessary for the
performance of the services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it
has thoroughly investigated and considered the work to be performed, (b) it has investigated the
site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully
considered how the work should be performed, and (d) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this Agreement. Should
Consultant discover any latent or unknown conditions materially differing from those inherent in
the work or as represented by City, Consultant shall immediately inform City of such fact and
shall not proceed except at Consultant's risk until written instructions are received from the
Contract Officer (as defined in Section 4.2 hereof).
1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the
equipment, materials, papers and other components thereon to prevent losses or damages, and
shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation to correct
any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies
are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to
perform any additional services without compensation. Any addition in compensation not pp
L ti J v
exceeding five percent (5%) of the Contract Sum may be approved by the Contract Officer.
Any greater increase must be approved by the City Council.
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in Exhibit "C" (the "Special Requirements"). In the
event of a conflict between the provisions of the Special Requirements and any other provisions
of this Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit "B" (tie "Schedule of Compensation &
Performance"), except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion, payment in
accordance with the percentage of completion of the services, payment for time and materials
based upon Consultant's rate schedule, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and similar
costs and expenses when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the
form approved by City's Finance Director, an invoice for services rendered prior to the date of
the invoice. Such invoice shall (1) describe in detail the services provided, including time and
materials, and (2) specify each staff member who has provided services and the number of
hours assigned to each such staff member. Such invoice shall contain a certification by a
principal member of Consultant specifying that the payment requested is for work performed in
accordance with the terms of this Agreement. City will pay Consultant for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working
day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "B" (the "Schedule of
Compensation & Performance"). Extensions to the time period specified in the Schedule of
Performance may be approved in writing by the Contract Officer.
3.3 Force Maieure. The time period specified in the Schedule of Performance for
performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence
of Consultant, including, but not restricted to, acts of God or of the public enemy, fires,
earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of
any governmental agency other than City, and unusually severe weather, if Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing
of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
delay, and extend the time for performing the services for the period of the forced delay whence
and if in his or her judgment such delay is justified, and the Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement.
3.4 Term. The term of this agreement shall commence on January, 1, 2007 and
terminate on December 31, 2008. Unless earlier terminated in accordance with Sections 7.7 or
7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of
the services, except as otherwise provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
a. It is expressly understood that the experience, knowledge, capability, and reputation
of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be Timothy R. Jonasson or such other
person as may be designated by the City Manager of City. It shall be Consultant's responsibility
to assure that the Contract Officer is kept informed of the progress of the performance of the
services and Consultant shall refer any decisions, which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Consultant, its principals and employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the
services required herein, except as otherwise set forth. Consultant shall perform all services
required herein as an independent contractor of City and shall remain at all times as to City a
wholly independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City.
4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to services to be performed hereunder
which are reasonably available to Consultant only from or through action by City. 1
� A 0
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, Consultant shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, personal and public liability and property
damage insurance against all claims for injuries against persons or damages to property resulting
from Consultant's acts or omissions rising out of or related to Consultant's performance under
this Agreement. The insurance policy shall contain a severability of interest clause providing
that the coverage shall be primary for losses arising out of Consultant's performance hereunder
and neither City nor its insurers shall be required to contribute to any such loss. A certificate
evidencing the foregoing and naming City and its officers and employees as additional insured
shall be delivered to and approved by City prior to commencement of the services hereunder.
The amount of insurance required hereunder shall be $250,000 per individual; $500,000 per
occurrence for Personal Injury/Property Damage Coverage.
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all
claims for injuries against persons or damages to properly arising out of the use of any
automobile by Consultant, its officers, any person directly or indirectly employed by Consultant,
any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly
or indirectly out of or related to Consultant's performance under this Agreement. If Consultant
or Consultant's employees will use personal autos in any way on this project, Consultant shall
provide evidence of personal auto liability coverage for each such person. The term
"automobile includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed
for travel on public roads. The automobile insurance policy shall contain a severability of
interest clause providing that coverage shall be primary for losses arising out of Consultant's
performance hereunder and neither City nor its insurers shall The required to contribute to such
loss. A certificate evidencing the foregoing and naming City and its officers and employees as
additional insured shall be delivered to and approved by City prior to commencement of the
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws with employer's liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services" as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $1,000,000
per claim and in the aggregate. The policy must "pay on behalf of" the insured and must
include a provision establishing the insurer's duty to defend. The policy retroactive date shall be
on or before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted
carriers in the State of California and with an A.M. Bests rating of "A" or better and a minimum
financial size VII.
All insurance required by this Section shall be kept in effect during the term of this Agreement
and shall not be cancelable without thirty (30) days written notice to City of proposed
cancellation. The procuring of such insurance or the delivery of policies or certificates
evidencing the same shall not be construed as a limitation of Consultant's obligation to
indemnify City, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification.
a. Indemnification for Professional Liability. When the law establishes a professional
standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend and hold harmless City and any and all of its officials,
employees and agents ("Indemnified Parties") from and against any and all losses, liabilities,
damages, costs and expenses, including attorney's fees and costs to the extent same are cause
in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers,
agents, employees or subconsultants (or any entity or individual that Consultant shall bear the
legal liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Consultant: shall not be liable for any injuries
or property damage resulting from the reuse of the design at a location other than that specified
in Exhibit C without the written consent of the Consultant.
b. Indemnification for Other Than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by .law, Consultant shall indemnify,
defend and hold harmless City, and any and all of its employees, officials and agents from and
against any liability (including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest,
defense costs, and expert witness fees), where the same arise our of, are a consequence of, or
are in any way attributable to, in whole or in part, the performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable, including but not
limited to officers, agents, employees or subconsultants of Consultant.
c. eneral Indemnification Provisions. Consultant agrees to obtain executed indemnity
agreements with provisions identical to those set forth here in this section from each and every
subconsultant or any other person or entity involved by, for with or on behalf of Consultant in
the performance of this agreement. In the event Consultant fails to obtain such indemnity
obligations from others as required here, Consultant agrees to be fully responsible according to
the terms of this section. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns or heirs of Consultant and shall survive the termination of this agreement or
this section.
d. Indemnity Provisions for Contracts Related to Construction. Without affecting the
rights of City under any provision of this agreement, Consultant shall not be required to
indemnify and hold harmless City for liability attributable to the active negligence of City,
provided such active negligence is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage of the
liability involved, the obligation of Consultant will be for that entire portion or percentage of
liability not attributable to the active negligence of City.^
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Consultant's failure to
maintain or secure appropriate policies or endorsements. Nothing herein contained shall be
construed as limiting in any way the extent to which Consultant may be held responsible for
payments of damages to persons or property resulting from Consultant's or its subcontractors'
performance of work under this Agreement.
5.4 General Conditions pertaining to provisions of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds City, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees
to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to
a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability
of any insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to
this agreement are intended to apply to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the application of
such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has not been first submitted to City and
approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Consultant shall not make any
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery
period) that may affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured endorsement to
Consultant's general liability policy, shall be delivered to City at or prior to the execution of this
Agreement. In the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is provided, City has
the right , but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by City shall
be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City
option.
S. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail written
notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to
being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply first and on a
primary, non-contributing basis in relation to any other insurance or self insurance available to
City.
10. Consultant agrees to ensure that subcontractors, .and any other party involved with
the project who is brought onto or involved in the project by Consultant, provide the same
minimum insurance coverage required of Consultant. Consultant agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the project will be submitted to City for
review.
11. Consultant agrees not to self -insure or to use any self -insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project contemplated by this agreement to self -
insure its obligations to City, If Consultant's existing coverage includes a deductible or self -
insured retention, the deductible or self -insured retention must be declared to the City. At that
time the City shall review options with the Consultant, which may include reduction or
elimination of the deductible or self -insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased benefit
to City.
n ��
13. For purposes of applying insurance coverage only, 'this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be deemed to
be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part of
City to inform Consultant of non-compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any other
regard.
15. Consultant will renew the required coverage annually as long as City, or its employees
or agents face an exposure from operations of any type pursuant to this agreement. This
obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that
effect.
16. Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing at least
the same coverage. Proof that such coverage has been ordered shall be submitted prior to
expiration. A coverage binder or letter from Consultant's insurance agent to this effect is
acceptable. A certificate of insurance and/or additional insured endorsement as required in
these specifications applicable to the renewing or new coverage must be provided to City within
five (5) days of the expiration of coverages.
17. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials and
agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Consultant for the cost
of additional insurance coverage required by this agreement. Any such provisions are to be
deleted with reference to City. It is not the intent of City to reimburse any third party for the
cost of complying with these requirements. There shall be no recourse against City for payment
of premiums or other amounts with respect thereto.
Consultant agrees to provide immediate notice to City of any claim or loss against Consultant
arising out of the work performed under this agreement. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of any such claim or
claims if they are likely to involve City.
6.0 RECORDS AND REPORTS.
6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning Consultant's performance of the services required by this Agreement as the
Contract Officer shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to
perform the services required by this Agreement and enable the Contract Officer to evaluate the
cost and the performance of such services. Books and records pertaining to costs shall be kept
and prepared in accordance with generally accepted accounting principals. The Contract Officer
shall have full and free access to such books and records at all reasonable times, including the
right to inspect, copy, audit, and make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by
Consultant, its employees, subcontractors and agents in the performance of this Agreement,
shall be the property of City and shall be delivered to City upon termination of this Agreement or
upon the earlier request of the Contract Officer, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full rights of
ownership of the documents and materials hereunder. Consultant shall cause all subcontractors
to assign to City any documents or materials prepared by them, and in the event Consultant
fails to secure such assignment, Consultant shall indemnify City for all damages suffered
thereby.
In the event City or any person, firm or corporation authorized by City reuses said
documents and materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes any changes or alterations in said
documents and materials, City hereby releases, discharges, and exonerates Consultant from
liability resulting from said change. The provisions of this clause shall survive the completion of
this Contract and shall thereafter remain in full force and effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents
and other materials prepared by Consultant in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Contract Officer or as
required by law. Consultant shall not disclose to any other entity or person any information
regarding the activities of City, except as required by law or as authorized by City.
7.0 ENFORCEMENT OF AGREEMENT.
7.1 California Law. This Agreement shall be construed and interpreted both as'to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Consultant covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party in writing of its contentions by submitting a claim therefore. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes
the cure of such default within forty-five (45) days after service of the notice, or such longer
period as may be permitted by the Contract Officer; provided that if the default is an immediate
danger to the health, safety and general welfare, City may take such immediate action as City
deems warranted. Compliance with the provisions of this section shall be a condition precedent
to termination of this Agreement for cause and to any legal action, and such compliance shall
not be a waiver of any party's right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's right to terminate this Agreement without
cause pursuant to Section 7.8.
7.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City due to the default of Consultant in the performance of the
services required by this Agreement.
7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non
defaulting party on any default shall impair such right or rennedy or be construed as a waiver.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City's consent to or approval of any subsequent
act of Consultant. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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.
7.6 Legal Action. In addition to any other rights or remedies, either party may take legal
action, at law or at equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination
of this Agreement, except as specifically provided in the following Section 7.8 for termination
for cause. City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of
termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Consultant shall be entitled to compensation for
all services rendered prior to receipt of the notice of termination and for any services authorized
by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as
may be approved by the Contract Officer, except as provided in Section 7.3.
7.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over work and prosecute the same to completion by contract or
otherwise, and Consultant shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that City shall
use reasonable efforts to mitigate such damages), and City may withhold any payments to
Consultant for the purpose of setoff or partial payment of the amounts owed City as previously
stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or any default or
breach by City or for any amount which may become due to Consultant or to its successor, or
for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which affects his or her personal interest or the interest of
any corporation, partnership or association in which she or he is, directly or indirectly,
interested, in violation of any State statute or regulation. Consultant warrants that it has not
paid or given and will not pay or give any third party any money or general consideration for
obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its
heirs, executors, 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 race,
color, creed, religion, sex, marital status, national origin or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, consent, approval, communication either
party desires or is required to give the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class maid to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if
mailed as provided in this section.
448
To City:
CITY OF LA QUINTA
Attention: Thomas P. Genovese
City Manager
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92247-1504
To Consultant:
NRO
Attention: Noel Owlsley, P.E.
Owner
41-945 Boardwalk, Suite H
Palm Desert, California 92211
9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties
and all previous understanding, negotiations and agreements are integrated into and superseded
by this Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent
of the parties by an instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be: declared invalid or unenforceable
by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs,
or sections of this Agreement which are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder.
4.43
9.5 Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and
that by so executing this Agreement the parties hereto are formally bound to the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA QUINTA a California municipal corporation
Thomas P. Genovese, City Manager
ATTEST:
Veronica J. Montecino, CMC, City Clerk
APPROVED AS TO FORM:
M. Katherine Jenson, City Attorney
CONSULTANT:
By:
Name:
Title:
Date:
Date
Exhibit A
Scope of Services
Consultant shall provide on -call professional engineering map and plan check
services to the City.
Exhibit B
Schedule of Compensation & Performance
Consultants Project Schedule is attached and made a part of this agreement.
Consultant shall complete services presented within the scope of work contained
within Exhibit "A" in accordance with the attached project schedule.
%xrFtl7
Service Term, Schedule & Cost Proposal
Consultant NRO ENGINEERING shall provide
services for a term of twenty-four (24) months beginning January 1, 2007 and terminating
on December 31, 2008.
OFFICE HOURS
The Consultant shall maintain normal office hours between 8:00 a.m. and 5:00 p.m.,
Monday through Friday. The Consultant shall be available to meet with City Staff during
normal working hours with 48 hours advance notice.
SCHEDULE
The Consultant shall adhere to the following plan check schedule:
Map Submittal
Map Check Turn -Around (From Receipt from City Staff)
15 Pla�eck
10 Working Days
"d
2Plan Check
_� Working Days
3rd Plan Check
_ 5 Working Days
Plan Submittal
Plan Check Turn -Around (From Receipt from City Staff)
15 Plate n Check
1 o Working Days
2rd Plan Check
_
10 Working Days
3rd Plan Check
5 Working Days
For larger, more complex projects such as golf course developments, one (1) additional
week for the 1st and 2"d plan check shall be provided, if necessary to complete a thorough
plan check. The consultant shall advise the Contract Officer, in writing, if additional time is
needed.
Normal plan check operations will be conducted as follows:
1st Submittal
Upon completing the 1st review, the Consultant shall submit the 'red lined" plans and a
copy of the applicable Plan Check List to the City. The City will provide supplemental
comment as necessary and forward "red lined" plans to the applicant.
2"d and Subsequent Submittals
Upon receipt of the 2" round plan check submittal from the applicant and upon completing
the 2"d review, the Consultant shall submit "red lined" plans and a copy of the applicable 2"d
review Plan Check List to the City. The City will provide supplemental comment as
applicable and forward 2"d review 'red lined" plans to the applicant. The process of
applicant correction, Consultant review followed by City review and 'red lined" plan return
to applicant shall continue until approvable plans are generated and a plan approval letter
is submitted to the City by the Consultant.
If necessary, the Consultant shall be available to meet with City staff and/or the applicant
to review the plan check comments. The Consultant will communicate directly with the
applicant regarding plan check issues and clarifications. The City desires an average of no
more than 3 plan check rounds before final plan approval. j
The Consultant shall also maintain a plan check log as follows to track the plan check
status. The plan check log shall include the following information:
1) Receipt Date
2) Transmittal Dates
3) Who is Receiving the Information
4) Status of Plan Check
5) Project Description and City Plan Check Number
6) Plan Check Fees
The Consultant shall maintain all files for a period of three years. Copies of requested files
will be furnished to the City upon request.
Map Check Compensation
Map check payment shall be made in full at the following "fixed fee" rates as specified
for Tract Maps and Parcel Maps:
Tract Maps $ 525 base fee plus $ 0 per lot (including both lettered and
numbered lots)
Parcel Maps $ Sys base fee plus $_g_ per parcel (including both lettered and
numbered lots)
Lot Line Adjustment $ 300 base fee plus $ g_ fee per line adjusted
This rate shall be compensation for up to three (3) map checks. Payment for additional
map checks after the third check shall be made at the rates listed in the Schedule of
Billing Rates attached herewith for the actual hours Submitted in conformance with
Section 2.2 of the Agreement. An estimate of hours to complete the map check (after
the third check) shall be made in writing to the Contract Officer for approval as
specified in Section 1.6 - Additional Services of the Agreement.
Compensation for the first three map checks shall be distributed at the following
schedule:
First Map Check 65% of the Total Map Check Fee;
Second Map Check 20% of the Total Map Check Fee;
Third Map Check 15% of the Total Map Check Fee:
The Consultant shall be compensated upon the completion of each map check as
indicated in the above schedule and in conformance with Section 2.2 of the
Agreement. If a project is suspended, either definitely or indefinitely, the Consultant
shall be compensated based on the last completed map check. If the map check
process is completed prior to the third map check, 1000% of the map check fee will be
paid upon completion of the final map check.
Consultant may be requested to provide additional map checks after the third check.` tiJ�i
Consultant receives no additional compensation for delivery or postage fees necessary to
transmit or receive plans from City.
Consultant also may be requested to provide supplemental map checking or general map
consulting services for specific development related engineering projects for the City as
applicable.
Payment shall be made in full at an hourly rate of:
$ 125 per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Plan Check Compensation
Plan check payment shall be made in full at a "fixed fee" rate of:
$ 525 per sheet (submittals with 1-5 sheets in quantity)
$ 525 per sheet (submittals with 6-15 sheets in quantity)
$ 525 per sheet (submittals with 16 or more sheets in quantity)
Sheet counts are based on the number of sheets submitted for plan check. Sheets may
include title and detail sheets, street plans, storm drain plans, traffic plans, meandering
sidewalk and parkway grading plans, rough & precise grading plans at 30,40 or 50 feet per
inch scale.
Consultant receives no additional compensation for review of supporting documents
including, but not limited to hydrology and hydraulic calculation reports, soils reports &
engineer's cost estimates, conditions of approval, tentative tract and parcel maps.
Consultant receives no additional compensation for delivery or postage fees necessary to
transmit or receive plans from City.
This rate shall be compensation for up to three (3) plan checks. Supplemental payment for
additional plan checks after the third check or for special engineering reports including
LAQMP Dust Control Plans, Storm Water Pollution Prevention Plans and Traffic Reports,
shall be in made at the rates listed in the Schedule of Billing Rates attached herewith for
the actual hours submitted in conformance with Section 2.2 of the Agreement. An estimate
of hours to complete the plan check (after the third plan check) or for special reports shall
be made in writing to the Contract Officer for approval as specified in Section 1.6 -
Additional Services of the Agreement.
Compensation for the first three plan checks shall be distributed at the following schedule:
First Plan Check 65% of the Total Plan Check Fee
Second Plan Check 20% of the Total Plan Check Fee
Third Plan Check 15% of the Total Plan Check Fee
The Consultant shall be compensated upon the completion of each plan check as
indicated in the above schedule and in conformance with Section 2.2 of the Agreement. If
a project is suspended, either definitely or indefinitely, the Consultant shall be
compensated based on the last completed plan check. If the plan check process is
completed prior to the third plan check, 100% of the plan check fee will be paid upon �J
completion of the final plan check.
The Consultant shall separately invoice per plan and per plan check. No exceptions will
be allowed to the payment schedule.
Consultant also may be requested to provide general civil consulting services for specific
development related engineering projects for the City as applicable.
Payment shall be made in full at an hourly rate of:
$ 1 2 5 per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Prevailing Wage - In accordance with Section 1770 of the Labor Code, the City has ascertained
and does hereby specify that the prevailing wage rates shall be those provided in Article 1110-
20.0, WAGE RATES. The said rates shall include all employer payments that are required by
Section 1773.1 of the Labor Code. The City will furnish to the Contractor, upon request, a copy
of such prevailing rates. It shall be the duty of the Contractor to post a copy of such prevailing
wages at the job site.
CONSULTANT:
By Date: tb•►—►'Olo
Name: Noel owcl ay -
Owner
n
12 '
Exhibit C
Special Requirements
None.
PROFESSIONAL SERVICES AGREEMENT Attachment 6
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into
by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and
RASA ("Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to on -call engineering map check services, as
specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by
this reference (the "services" or "work"). Consultant warrants that all services will be
performed in a competent, professional and satisfactory manner in accordance with the
standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of
La Quinta and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Except as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable
penalties and interest, which may be imposed by law and arise from or are necessary for the
performance of the services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it
has thoroughly investigated and considered the work to be performed, (b) it has investigated the
site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully
considered how the work should be performed, and (d) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this Agreement. Should
Consultant discover any latent or unknown conditions materially differing from those inherent in
the work or as represented by City, Consultant shall immediately inform City of such fact and
shall not proceed except at Consultant's risk until written instructions are received from the
Contract Officer (as defined in Section 4.2 hereof).
1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the
equipment, materials, papers and other components thereof to prevent losses or damages, and
shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation to correct
any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies
are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to
perform any additional services without compensation. Any addition in compensation iLbT)g
exceeding five percent (5%) of the Contract Sum may be approved by the Contract Officer.
Any greater increase must be approved by the City Council.
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in Exhibit "C" (the "Special Requirements"). In the
event of a conflict between the provisions of the Special Requirements and any other provisions
of this Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation &
Performance"), except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion, payment in
accordance with the percentage of completion of the services, payment for time and materials
based upon Consultant's rate schedule, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and similar
costs and expenses when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the
form approved by City's Finance Director, an invoice for services rendered prior to the date of
the invoice. Such invoice shall (1) describe in detail the services provided, including time and
materials, and (2) specify each staff member who has provided services and the number of
hours assigned to each such staff member. Such invoice shall contain a certification by a
principal member of Consultant specifying that the payment requested is for work performed in
accordance with the terms of this Agreement. City will pay Consultant for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working
day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "B" (the "Schedule of
Compensation & Performance"). Extensions to the time period specified in the Schedule of
Performance may be approved in writing by the Contract Officer.
3.3 Force Majeure. The time period specified in the Schedule of Performance for
performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence
of Consultant, including, but not restricted to, acts of God or of the public enemy, fires,
earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of
any governmental agency other than City, and unusually severe weather, if Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing
of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
delay, and extend the time for performing the services for the period of the forced delay when
nW
and if in his or her judgment such delay is justified, and the Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement.
3.4 Term. The term of this agreement shall commence on January, 1, 2007 and
terminate on December 31, 2008. Unless earlier terminated in accordance with Sections 7.7 or
7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of
the services, except as otherwise provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
a. It is expressly understood that the experience, knowledge, capability, and reputation
of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be Timothy R. Jonasson or such other
person as may be designated by the City Manager of City. It shall be Consultant's responsibility
to assure that the Contract Officer is kept informed of the progress of the performance of the
services and Consultant shall refer any decisions, which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Consultant, its principals and employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the
services required herein, except as otherwise set forth. Consultant shall perform all services
required herein as an independent contractor of City and shall remain at all times as to City a
wholly independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City.
4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to services to be performed hereunder
which are reasonably available to Consultant only from or through action by City. /F/�a j
.. d hA
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, Consultant shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, personal and public liability and property
damage insurance against all claims for injuries against persons or damages to property resulting
from Consultant's acts or omissions rising out of or related to Consultant's performance under
this Agreement. The insurance policy shall contain a severability of interest clause providing
that the coverage shall be primary for losses arising out of Consultant's performance hereunder
and neither City nor its insurers shall be required to contribute to any such loss. A certificate
evidencing the foregoing and naming City and its officers and employees as additional insured
shall be delivered to and approved by City prior to commencement of the services hereunder.
The amount of insurance required hereunder shall be $250,000 per individual; $500,000 per
occurrence for Personal Injury/Property Damage Coverage.
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all
claims for injuries against persons or damages to property arising out of the use of any
automobile by Consultant, its officers, any person directly or indirectly employed by Consultant,
any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly
or indirectly out of or related to Consultant's performance under this Agreement. If Consultant
or Consultant's employees will use personal autos in any way on this project, Consultant shall
provide evidence of personal auto liability coverage for each such person. The term
"automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed
for travel on public roads. The automobile insurance policy shall contain a severability of
interest clause providing that coverage shall be primary for losses arising out of Consultant's
performance hereunder and neither City nor its insurers shall be required to contribute to such
loss. A certificate evidencing the foregoing and naming City and its officers and employees as
additional insured shall be delivered to and approved by City prior to commencement of the
services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws with employer's liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $1,000,000
per claim and in the aggregate. The policy must "pay on behalf of" the insured and must
include a provision establishing the insurer's duty to defend. The policy retroactive date shall be
on or before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted
carriers in the State of California and with an A.M. Bests rating of "A" or better and a minimum
financial size VII.
All insurance required by this Section shall be kept in effect during the term of this Agreement
and shall not be cancelable without thirty (30) days written notice to City of proposed
^f
cancellation. The procuring of such insurance or the delivery of policies or certificates
evidencing the same shall not be construed as a limitation of Consultant's obligation to
indemnify City, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification.
a. Indemnification for Professional Liability. When the law establishes a professional
standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend and hold harmless City and any and all of its officials,
employees and agents ("Indemnified Parties") from and against any and all losses, liabilities,
damages, costs and expenses, including attorney's fees and costs to the extent same are cause
in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers,
agents, employees or subconsultants (or any entity or individual that Consultant shall bear the
legal liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Consultant shall not be liable for any injuries
or property damage resulting from the reuse of the design at a location other than that specified
in Exhibit C without the written consent of the Consultant.
b. Indemnification for Other Than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall indemnify,
defend and hold harmless City, and any and all of its employees, officials and agents from and
against any liability (including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest,
defense costs, and expert witness fees), where the same arise our of, are a consequence of, or
are in any way attributable to, in whole or in part, the performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable, including but not
limited to officers, agents, employees or subconsultants of Consultant.
C. General Indemnification Provisions. Consultant agrees to obtain executed indemnity
agreements with provisions identical to those set forth here in this section from each and every
subconsultant or any other person or entity involved by, for with or on behalf of Consultant in
the performance of this agreement. In the event Consultant fails to obtain such indemnity
obligations from others as required here, Consultant agrees to be fully responsible according to
the terms of this section. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns or heirs of Consultant and shall survive -the termination of this agreement or
this section.
d. Indemnity Provisions for Contracts Related to Construction. Without affecting the
rights of City under any provision of this agreement, Consultant shall not be required to
indemnify and hold harmless City for liability attributable to the active negligence of City,
provided such active negligence is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage of the
liability involved, the obligation of Consultant will be for that entire portion or percentage of
liability not attributable to the active negligence of City.
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Consultant's failure to
maintain or secure appropriate policies or endorsements. Nothing herein contained shall be
construed as limiting in any way the extent to which Consultant may be held responsible for
payments of damages to persons or property resulting from Consultant's or its subcontractors'
performance of work under this Agreement.
5.4 General Conditions pertaining to provisions of insurance coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds City, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees
to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to
a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability
of any insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to
this agreement are intended to apply to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the application of
such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has riot been first submitted to City and
approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Consultant shall not make any
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery
period) that may affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured endorsement to
Consultant's general liability policy, shall be delivered to City at or prior to the execution of this
Agreement. In the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is provided, City has
the right , but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by City shall
be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City
option.
8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail written
notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to
being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply first and on a
primary, non-contributing basis in relation to any other insurance or self insurance available to
City.
10. Consultant agrees to ensure that subcontractors, and any other party involved with
the project who is brought onto or involved in the project by Consultant, provide the same
minimum insurance coverage required of Consultant. Consultant agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the project will be submitted to City for
review.
11. Consultant agrees not to self -insure or to use any self -insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project contemplated by this agreement to self -
insure its obligations to City, If Consultant's existing coverage includes a deductible or self -
insured retention, the deductible or self -insured retention must be declared to the City. At that
time the City shall review options with the Consultant, which may include reduction or
elimination of the deductible or self -insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased benefit
to City.
13. For purposes of applying insurance coverage only, this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be deemed to
be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part of
City to inform Consultant of non-compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any other
regard.
15. Consultant will renew the required coverage annually as long as City, or its employees
or agents face an exposure from operations of any type pursuant to this agreement. This
obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that
effect.
16. Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing at least
the same coverage. Proof that such coverage has been ordered shall be submitted prior to
expiration. A coverage binder or letter from Consultant's insurance agent to this effect is
acceptable. A certificate of insurance and/or additional insured endorsement as required in
these specifications applicable to the renewing or new coverage must be provided to City within
five (5) days of the expiration of coverages.
17. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials and
agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Consultant for the cost
of additional insurance coverage required by this agreement. Any such provisions are to be
deleted with reference to City. It is not the intent of City to reimburse any third party for the
cost of complying with these requirements. There shall be no recourse against City for payment
of premiums or other amounts with respect thereto.
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Consultant agrees to provide immediate notice to City of any claim or loss against Consultant
arising out of the work performed under this agreement. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of any such claim or
claims if they are likely to involve City.
6.0 RECORDS AND REPORTS.
6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning Consultant's performance of the services required by this Agreement as the
Contract Officer shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to
perform the services required by this Agreement and enable the Contract Officer to evaluate the
cost and the performance of such services. Books and records pertaining to costs shall be kept
and prepared in accordance with generally accepted accounting principals. The Contract Officer
shall have full and free access to such books and records at. all reasonable times, including the
right to inspect, copy, audit, and make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by
Consultant, its employees, subcontractors and agents in the performance of this Agreement,
shall be the property of City and shall be delivered to City upon termination of this Agreement or
upon the earlier request of the Contract Officer, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full rights of
ownership of the documents and materials hereunder. Consultant shall cause all subcontractors
to assign to City any documents or materials prepared by them, and in the event Consultant
fails to secure such assignment, Consultant shall indemnify City for all damages suffered
thereby.
In the event City or any person, firm or corporation authorized by City reuses said
documents and materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes, any changes or alterations in said
documents and materials, City hereby releases, discharges, and exonerates Consultant from
liability resulting from said change. The provisions of this clause shall survive the completion of
this Contract and shall thereafter remain in full force and effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents
and other materials prepared by Consultant in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Contract Officer or as
required by law. Consultant shall not disclose to any other entity or person any information
regarding the activities of City, except as required by law or as authorized by City.
7.0 ENFORCEMENT OF AGREEMENT.
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Consultant covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party in writing of its contentions by submitting a claim therefore. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes
the cure of such default within forty-five (45) days after service of the notice, or such longer
period as may be permitted by the Contract Officer; provided that if the default is an immediate
danger to the health, safety and general welfare, City may take such immediate action as City
deems warranted. Compliance with the provisions of this section shall be a condition precedent
to termination of this Agreement for cause and to any legal action, and such compliance shall
not be a waiver of any party's right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's right to terminate this Agreement without
cause pursuant to Section 7.8.
7.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City due to the default of Consultant in the performance of the
services required by this Agreement.
7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non
defaulting party on any default shall impair such right or remedy or be construed as a waiver.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City's consent to or approval of any subsequent
act of Consultant. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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.
7.6 Legal Action. In addition to any other rights or remedies, either party may take legal
action, at law or at equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination
of this Agreement, except as specifically provided in the following Section 7.8 for termination
for cause. City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of
termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Consultant shall be entitled to compensation for
all services rendered prior to receipt of the notice of termination and for any services authorized
n � H
by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as
may be approved by the Contract Officer, except as provided in Section 7.3.
7.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over work and prosecute the same to completion by contract or
otherwise, and Consultant shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that City shall
use reasonable efforts to mitigate such damages), and City may withhold any payments to
Consultant for the purpose of setoff or partial payment of the amounts owed City as previously
stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES• NONDISCRIMINATION.
8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or any default 'or
breach by City or for any amount which may become due to Consultant or to its successor, or
for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which affects his or her personal interest or the interest of
any corporation, partnership or association in which she or he is, directly or indirectly,
interested, in violation of any State statute or regulation. Consultant warrants that it has not
paid or given and will not pay or give any third party any money or general consideration for
obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its
heirs, executors, 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 race,
color, creed, religion, sex, marital status, national origin or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, consent, approval, communication either
party desires or is required to give the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if
mailed as provided in this section.
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To City:
CITY OF LA QUINTA
Attention: Thomas P. Genovese
City Manager
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92247-1504
To Consultant:
RASA
Attention: Eric A. Nelson, PLS
Principal
534 Rancho Terrace
Escondido, California 92026
9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties
and all previous understanding, negotiations and agreements are integrated into and superseded
by this Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent
of the parties by an instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable
by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs,
or sections of this Agreement which are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder.
9.5 Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and
that by so executing this Agreement the parties hereto are formally bound to the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA QUINTA a California municipal corporation
Thomas P. Genovese, City Manager Date
ATTEST:
Veronica J. Montecino, CMC, City Clerk
APPROVED AS TO FORM:
M. Katherine Jenson, City Attorney
CONSULTANT:
By:
Name:
Title:
Date:
Exhibit A
Scope of Services
Consultant shall provide on -call professional engineering map check services to the
City.
Exhibit B
Schedule of Compensation & Performance
Consultants Project Schedule is attached and made a part of this agreement.
Consultant shall complete services presented within the scope of work contained
within Exhibit "A" in accordance with the attached project schedule.
CXF/7011 tnp
Service Term, Schedule & Cost Proposal
Consultant RKA Consulting Group shall provide
services for a term of twenty-four (24) months beginning January 1, 2007 and terminating
on December 31, 2008.
OFFICE HOURS
The Consultant shall maintain normal office hours between 8:00 a.m. and 5:00 p.m.,
Monday through Friday. The Consultant shall be available to meet with City Staff during
normal working hours with 48 hours advance notice.
SCHEDULE
The Consultant shall adhere to the following plan check schedule:
Map Submittal
Map
Check Turn -Around (From Receipt from City Staff)
15 Plate n Check
10
Working Days
2"d Plan Check
10
Working Days
3`d Plan Check
�5
Working Days
Plan Submittal
Plan Check Turn -Around (From Receipt from City Staff)
15 Plate n Check
/0
Working Days
2"d Plan Check
/D
Working Days
3`d Plan Check
5
Working Days
For larger, more complex projects such as golf course developments, one (1) additional
week for the 151 and 2"d plan check shall be provided, if necessary to complete a thorough
plan check. The consultant shall advise the Contract Officer, in writing, if additional time is
needed.
Normal plan check operations will be conducted as follows:
151 Submittal
Upon completing the 15' review, the Consultant shall submit the "red lined" plans and a
copy of the applicable Plan Check List to the City. The City will provide supplemental
comment as necessary and forward "red lined" plans to the applicant.
2"d and Subse uent Submittals
Upon receipt of the 2 no round plan check submittal from the applicant and upon completing
the 2"d review, the Consultant shall submit "red lined" plans and a copy of the applicable 2nd
review Plan Check List to the City. The City will provide supplemental comment as
applicable and forward 2"d review "red lined" plans to the applicant. The process of "
applicant correction, Consultant review followed by City review and "red lined" plan return
to applicant shall continue until approvable plans are generated and a plan approval letter
is submitted to the City by the Consultant.
If necessary, the Consultant shall be available to meet with City staff and/or the applicant
to review the plan check comments. The Consultant will communicate directly with the
applicant regarding plan check issues and clarifications. The: City desires an average of no
more than 3 plan check rounds before final plan approval. ,_
273
The Consultant shall also maintain a plan check log as follows to track the plan check
status. The plan check log shall include the following information:
1) Receipt Date
2) Transmittal Dates
3) Who is Receiving the Information
4) Status of Plan Check
5) Project Description and City Plan Check Number
6) Plan Check Fees
The Consultant shall maintain all files for a period of three years. Copies of requested files
will be furnished to the City upon request.
Map Check Compensation
Map check payment shall be made in full at the following "fixed fee" rates as specified
for Tract Maps and Parcel Maps:
Tract Maps $ 2,250 base fee plus $ 35 per lot (including both lettered and
numbered lots)
Parcel Maps $ 2,256 base fee plus $ er per parcel (including both lettered and
numbered lots)
Lot Line Adjustment $ -450 base fee plus $_Pal fee per line adjusted
This rate shall be compensation for up to three (3) map checks. Payment for additional
map checks after the third check shall be made at the rates listed in the Schedule of
Billing Rates attached herewith for the actual hours submitted in conformance with
Section 2.2 of the Agreement. An estimate of hours to complete the map check (after
the third check) shall be made in writing to the Contract Officer for approval as
specified in Section 1.6 — Additional Services of the Agreement.
Compensation for the first three map checks shall be distributed at the following
schedule:
First Map Check
65% of the Total Map Check Fee
Second, Map Check
20% of the Total Map Check Fee
Third Map Check
15% of the Total Map Check Fee
The Consultant shall be compensated upon the completion of each map check as
indicated in the above schedule and in conformance with Section 2.2 of the
Agreement. If a project is suspended, either definitely or indefinitely, the Consultant
shall be compensated based on the last completed map check. If the map check
process is completed prior to the third map check, 100% of the map check fee will be
paid upon completion of the final map check.
Consultant may be requested to provide additional map checks after the third check.
Consultant receives no additional compensation for delivenr or postage fees necessary tor -
transmit or receive plans from City.
Consultant also may be requested to provide supplemental map checking or general map
consulting services for specific development related engineering projects for the City as
applicable.
Payment shall be made in full at an hourly rate of:
$ HO per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule:.
Plan Check Compensation
Plan check payment shall be made in full at a "fixed fee" rate of:
$ (306 per sheet (submittals with 1-5 sheets in quantity)
$ 275 per sheet (submittals with 6-15 sheets in quantity)
$ 250 per sheet (submittals with 16 or more sheets in quantity)
Sheet counts are based on the number of sheets submitted for plan check. Sheets may
include title and detail sheets, street plans, storm drain plans, traffic plans, meandering
sidewalk and parkway grading plans, rough & precise grading plans at 30, 40 or 50 feet per
inch scale.
Consultant receives no additional compensation for review of supporting documents
including, but not limited to hydrology and hydraulic calculation reports, soils reports &
engineer's cost estimates, conditions of approval, tentative tract and parcel maps.
Consultant receives no additional compensation for delivery or postage fees necessary to
transmit or receive plans from City.
This rate shall be compensation for up to three (3) plan checks. Supplemental payment for
additional plan checks after the third check or for special engineering reports including
IAQMP Dust Control Plans, Storm Water Pollution Prevention Plans and Traffic Reports,
shall be in made at the rates listed in the Schedule of Billing Rates attached herewith for
the actual hours submitted in conformance with Section 2.2 of the Agreement. An estimate
of hours to complete the plan check (after the third plan check) or for special reports shall
be made in writing to the Contract Officer for approval as specified in Section 1.6 -
Additional Services of the Agreement.
Compensation for the first three plan checks shall be distributed at the following schedule:
First Plan Check
65% of the Total Plan Check Fee
Second Plan Check
20% of the Total Plan Check Fee
Third Plan Check
15% of the Total Plan Check Fee
The Consultant shall be compensated upon the completion of each plan check as
indicated in the above schedule and in conformance with Section 2.2 of the Agreement. If
a project is suspended, either definitely or indefinitely, the Consultant shall be
compensated based on the last completed plan check. If the plan check process is
completed prior to the third plan check, 100% of the plan check fee will be paid upon
completion of the final plan check.
The Consultant shall separately invoice per plan and per plan check. No exceptions will
be allowed to the payment schedule.
Consultant also may be requested to provide general civil consulting services for specific
development related engineering projects for the City as applicable.
Payment shall be made in full at an hourly rate of:
$ /I/0 per hour —no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Prevailing Wage - In accordance with Section 1770 of the Labor Code, the City has ascertained
and does hereby specify that the prevailing wage. rates shall be those provided in Article 1 1 10-
20.0, WAGE RATES. The said rates shall include all employer payments that are required by
Section 1773.1 of the Labor Code. The City will furnish to the Contractor, upon request, a copy
of such prevailing rates. It shall be the duty of the Contractor to post a copy of such prevailing
wages at the job site.
CONSULTANT:
koa__
By: ✓/ Date: 10/17/06
Name: David Gilbertson
Title: Vice President
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Exhibit C
Special Requirements
None.
I1 w 11
M.. J
PROFESSIONAL SERVICES AGREEMENT Attachment 7
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into
by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and RKA
("Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to on -call engineering plan check services, as
specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by
this reference (the "services" or "work"). Consultant warrants that all services will be
performed in a competent, professional and satisfactory manner in accordance with the
standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of
La Quinta and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses Permits, Fees and Assessments. Excerpt as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable
penalties and interest, which may be imposed by law and arise from or are necessary for the
performance of the services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it
has thoroughly investigated and considered the work to be performed, (b) it has investigated the
site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully
considered how the work should be performed, and (d) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this Agreement. Should
Consultant discover any latent or unknown conditions materially differing from those inherent in
the work or as represented by City, Consultant shall immediately inform City of such fact and
shall not proceed except at Consultant's risk until written instructions are received from the
Contract Officer (as defined in Section 4.2 hereof).
1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the
equipment, materials, papers and other components thereof to prevent losses or damages, and
shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence. The
performance of services by Consultant shall not relieve Consultant from any obligation to correct
any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies
are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to
perform any additional services without compensation. Any addition in compensation not
w -�
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation &
Performance"), except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion, payment in
accordance with the percentage of completion of the services, payment for time and materials
based upon Consultant's rate schedule, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and similar
costs and expenses when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the
form approved by City's Finance Director, an invoice for services rendered prior to the date of
the invoice. Such invoice shall (1) describe in detail the services provided, including time and
materials, and (2) specify each staff member who has provided services and the number of
hours assigned to each such staff member. Such invoice: shall contain a certification by a
principal member of Consultant specifying that the payment requested is for work performed in
accordance with the terms of this Agreement. City will pay Consultant for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working
day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "B" (the "Schedule of
Compensation & Performance"). Extensions to the time period specified in the Schedule of
Performance may be approved in writing by the Contract Officer.
3.3 Force Maieure. The time period specified in the Schedule of Performance for
performance of the services rendered pursuant to this Agreement shall be extended because of
any delays due to unforeseeable causes beyond the control and without the fault or negligence
of Consultant, including, but not restricted to, acts of God or of the public enemy, fires,
earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of
any governmental agency other than City, and unusually severe weather, if Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing
of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
delay, and extend the time for performing the services for the period of the forced delay when
and if in his or her judgment such delay is justified, and the Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement.
3.4 Term. The term of this agreement shall commence on January, 1, 2007 and
terminate on December 31, 2008. Unless earlier terminated in accordance with Sections 7.7 or
7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of
the services, except as otherwise provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection therewith:
a. It is expressly understood that the experience, knowledge, capability, and reputation
of the foregoing principals were a substantial inducement for City to enter into this Agreement.
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Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of
City.
4.2 Contract Officer. The Contract Officer shall be Timothy R. Jonasson or such other
person as may be designated by the City Manager of City. 11 shall be Consultant's responsibility
to assure that the Contract Officer is kept informed of the progress of the performance of the
services and Consultant shall refer any decisions, which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Consultant, its principals and employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the
services required herein, except as otherwise set forth. Consultant shall perform all services
required herein as an independent contractor of City and shall remain at all times as to City a
wholly independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City.
4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to services to be performed hereunder
which are reasonably available to Consultant only from or through action by City.
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the duration of the Work
performed under this Agreement, Consultant shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, personal and public liability and property
damage insurance against all claims for injuries against persons or damages to property
resulting from Consultant's acts or omissions rising out of or related to Consultant's
performance under this Agreement. The insurance policy shall contain a severability of interest
clause providing that the coverage shall be primary for losses arising out of Consultant's
performance hereunder and neither City nor its insurers shall be required to contribute to any
such loss. A certificate evidencing the foregoing and naming City and its officers and
employees as additional insured shall be delivered to and approved by City prior to
commencement of the services hereunder.
The amount of insurance required hereunder shall be $250,000 per individual; $500,000 per
occurrence for Personal Injury/Property Damage Coverage.
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all
claims for injuries against persons or damages to property arising out of the use of any
automobile by Consultant, its officers, any person directly or indirectly employed by Consultant,
any subcontractor or agent, or anyone for whose acts any of them may be liable, arising
directly or indirectly out of or related to Consultant's performance under this Agreement. If
Consultant or Consultant's employees will use personal autos in any way on this project,
Consultant shall provide evidence of personal auto liability coverage for each such person. The
term "automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer
designed for travel on public roads. The automobile insurance policy shall contain a severability
of interest clause providing that coverage shall be primary for losses arising out of Consultant's
performance hereunder and neither City nor its insurers shall be required to contribute to such
loss. A certificate evidencing the foregoing and naming City and its officers and employees as
additional insured shall be delivered to and approved by City prior to commencement of the
services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws with employer's liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than
$1,000,000 per claim and in the aggregate. The policy must "pay on behalf of" the insured
and must include a provision establishing the insurer's duty to defend. The policy retroactive
date shall be on or before the effective date of this agreement.
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the State of California and with an A.M. Bests rating of "A" or better and a
minimum financial size VII.
All insurance required by this Section shall be kept in effect: during the term of this Agreement
and shall not be cancelable without thirty (30) days written notice to City of proposed
cancellation. The procuring of such insurance or the delivery of policies or certificates
evidencing the same shall not be construed as a limitation of Consultant's obligation to
indemnify City, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification.
a. Indemnification for Professional Liability. When the law establishes a professional
standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend and hold harmless City and any and all of its officials,
employees and agents ("Indemnified Parties") from and against any and all losses, liabilities,
damages, costs and expenses, including attorney's fees and costs to the extent same are cause
in whole or in part by any negligent or wrongful act, error or omission of Consultant, its
officers, agents, employees or subconsultants (or any entity or individual that Consultant shall
bear the legal liability thereof) in the performance of professional services under this agreement.
With respect to the design of public improvements, the Consultant shall not be liable for any
injuries or property damage resulting from the reuse of the design at a location other than that
specified in Exhibit C without the written consent of the Consultant.
b. Indemnification for Other Than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall indemnify,
defend and hold harmless City, and any and all of its employees, officials and agents from and
against any liability (including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest,
defense costs, and expert witness fees), where the same arise our of, are a consequence of, or
are in any way attributable to, in whole or in part, the performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable, including but not
limited to officers, agents, employees or subconsultants of Consultant.
C. General Indemnification Provisions. Consultant agrees to obtain executed indemnity
agreements with provisions identical to those set forth here in this section from each and every
subconsultant or any other person or entity involved by, for with or on behalf of Consultant in
the performance of this agreement. In the event Consultant fails to obtain such indemnity
obligations from others as required here, Consultant agrees to be fully responsible according to
the terms of this section. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns or heirs of Consultant and shall survive the termination of this agreement or
this section.
d. Indemnity Provisions for Contracts Related to Construction. Without affecting the
rights of City under any provision of this agreement, Consultant shall not be required to
indemnify and hold harmless City for liability attributable to the active negligence of City,
provided such active negligence is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage of the
liability involved, the obligation of Consultant will be for that entire portion or percentage of
liability not attributable to the active negligence of City.
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Consultant's failure to
maintain or secure appropriate policies or endorsements. Nothing herein contained shall be
construed as limiting in any way the extent to which Consultant may be held responsible for
payments of damages to persons or property resulting from Consultant's or its subcontractors'
performance of work under this Agreement.
5.4 General Conditions pertaining to provisions of insurance coverage uv �UII UUIU
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds City, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees
to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit
Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to
a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability
of any insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to
this agreement are intended to apply to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the application of
such insurance coverage. �. 47�
4S
4. None of the coverages required herein will be in compliance with these requirements
if they include any limiting endorsement of any kind that has not been first submitted to City
and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Consultant shall not make any
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery
period) that may affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and an additional insured endorsement to
Consultant's general liability policy, shall be delivered to City at or prior to the execution of this
Agreement. In the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is provided, City has
the right , but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by City shall
be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City
option.
8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to City
of any cancellation of coverage. Consultant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to mail written
notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to
being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Consultant or any subcontractor„ is intended to apply first and on a
primary, non-contributing basis in relation to any other insurance or self insurance available to
City.
10. Consultant agrees to ensure that subcontractors, and any other party involved with
the project who is brought onto or involved in the project by Consultant, provide the same
minimum insurance coverage required of Consultant. Consultant agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the project will be submitted to City for
review.
11. Consultant agrees not to self -insure or to use any self -insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project contemplated by this agreement to self -
insure its obligations to City, If Consultant's existing coverage includes a deductible or self -
insured retention, the deductible or self -insured retention must be declared to the City. At that
time the City shall review options with the Consultant, which may include reduction or
elimination of the deductible or self -insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the: term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased benefit
to City.
13. For purposes of applying insurance coverage only, this Agreement will be deemed to
have been executed immediately upon any party hereto taking any steps that can be deemed to
be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part of
City to inform Consultant of non-compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any other
regard.
15. Consultant will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this agreement.
This obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until City executes a written statement to that
effect.
16. Consultant shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other policies providing
at least the same coverage. Proof that such coverage has been ordered shall be submitted prior
to expiration. A coverage binder or letter from Consultant's insurance agent to this effect is
acceptable. A certificate of insurance and/or additional insured endorsement as required in
these specifications applicable to the renewing or new coverage must be provided to City within
five (5) days of the expiration of coverages.
17. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials and
agents.
18. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any
coverage normally provided by any given policy. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct from any other
provision in this agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Consultant for the cost
of additional insurance coverage required by this agreement. Any such provisions are to be
deleted with reference to City. It is not the intent of City to reimburse any third party for the
cost of complying with these requirements. There shall be no recourse against City for
payment of premiums or other amounts with respect thereto.
Consultant agrees to provide immediate notice to City of any claim or loss against Consultant
arising out of the work performed under this agreement. City assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of any such claim or
claims if they are likely to involve City.
6.0 RECORDS AND REPORTS. «.J0•
6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer
such reports concerning Consultant's performance of the services required by this Agreement
as the Contract Officer shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to
perform the services required by this Agreement and enable the Contract Officer to evaluate the
cost and the performance of such services. Books and records pertaining to costs shall be kept
and prepared in accordance with generally accepted accounting principals. The Contract Officer
shall have full and free access to such books and records at all reasonable times, including the
right to inspect, copy, audit, and make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by
Consultant, its employees, subcontractors and agents in the performance of this Agreement,
shall be the property of City and shall be delivered to City upon termination of this Agreement
or upon the earlier request of the Contract Officer, and Consultant shall have no claim for
further employment or additional compensation as a result of the exercise by City of its full
rights of ownership of the documents and materials hereunder. Consultant shall cause all
subcontractors to assign to City any documents or materials prepared by them, and in the event
Consultant fails to secure such assignment, Consultant shall indemnify City for all damages
suffered thereby.
In the event City or any person, firm or corporation authorized by City reuses said
documents and materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes any changes or alterations in said
documents and materials, City hereby releases, discharges, and exonerates Consultant from
liability resulting from said change. The provisions of this clause shall survive the completion of
this Contract and shall thereafter remain in full force and effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents
and other materials prepared by Consultant in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Contract Officer or as
required by law. Consultant shall not disclose to any other entity or person any information
regarding the activities of City, except as required by law or as authorized by City.
7.0 ENFORCEMENT OF AGREEMENT.
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Consultant covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the injuring party in writing of its contentions by submitting a claim therefore. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes
the cure of such default within forty-five (45) days after service of the notice, or such longer
period as may be permitted by the Contract Officer; provided that if the default is an immediate
danger to the health, safety and general welfare, City may take such immediate action as City
deems warranted. Compliance with the provisions of this section shall be a condition precedent
to termination of this Agreement for cause and to any legal action, and such compliance shall
not be a waiver of any party's right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's right to terminate this Agreement without
cause pursuant to Section 7.8. ti �'
7.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City due to the default of Consultant in the performance of the
services required by this Agreement.
7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non
defaulting party on any default shall impair such right or rernedy or be construed as a waiver.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City's consent to or approval of any subsequent
act of Consultant. Any waiver by either party of any default must be in writing and shall not be
a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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.
7.6 Legal Action. In addition to any other rights or remedies, either party may take legal
action, at law or at equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination
of this Agreement, except as specifically provided in the following Section 7.8 for termination
for cause. City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of
termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Consultant shall be entitled to compensation for
all services rendered prior to receipt of the notice of termination and for any services authorized
by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as
may be approved by the Contract Officer, except as provided in Section 7.3.
7.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over work and prosecute the; same to completion by contract or
otherwise, and Consultant shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that City shall
use reasonable efforts to mitigate such damages), and City may withhold any payments to
Consultant for the purpose of setoff or partial payment of the amounts owed City as previously
stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or any default or
breach by City or for any amount which may become due to Consultant or to its successor, or
for breach of any obligation of the terms of this Agreement.
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,. j J
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which affects his or her personal interest or the interest of
any corporation, partnership or association in which she: or he is, directly or indirectly,
interested, in violation of any State statute or regulation. Consultant warrants that it has not
paid or given and will not pay or give any third party any money or general consideration for
obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its
heirs, executors, 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 race,
color, creed, religion, sex, marital status, national origin or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, consent, approval, communication either
party desires or is required to give the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if
mailed as provided in this section.
To City: To Consultant:
CITY OF LA QUINTA RKA
Attention: Thomas P. Genovese Attention: David Gilbertson
City Manager Vice President
78-495 Calle Tampico 398 Lemon Creek Drive, Suite E
P.O. Box 1504 Walnut, California 91789-2649
La Quinta, California 92247-1504
9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties
and all previous understanding, negotiations and agreements are integrated into and superseded
by this Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent
of the parties by ar instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall [)a declared invalid or unenforceable
by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs,
or sections of this Agreement which are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder.
^39
9.5 Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and
that by so executing this Agreement the parties hereto are Formally bound to the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA QUINTA a California municipal corporation
Thomas P. Genovese, City Manager
ATTEST:
Veronica J. Montecino, CMC, City Clerk
APPROVED AS TO FORM:
M. Katherine Jenson, City Attorney
CONSULTANT:
As
Name: ^ �',
Title:
Date:
��1
Exhibit A
Scope of Services
Consultant shall provide on -call professional engineering plan check services to the
City.
Exhibit B
Schedule of Compensation & Performance
Consultants Project Schedule is attached and made a part of this agreement.
Consultant shall complete services presented within the scope of work contained
within Exhibit "A" in accordance with the attached project schedule.
93
_ CXt V11 j,5
Service Term, Schedule & Cost Proposal
Consultant RRA consulting croup shall provide
services for a term of twenty-four (24) months beginning January 1, 2007 and terminating
on December 31, 2008.
OFFICE HOURS
The Consultant shall maintain normal office hours between 8:00 a.m. and 5:00 p.m.,
Monday through Friday. The Consultant shall be available to meet with City Staff during
normal working hours with 48 hours advance notice.
SCHEDULE
The Consultant shall adhere to the following plan check schedule:
Ma Sp ubmittal
Map
Check Turn-Ari
15 Plan Check
10
Working Days
2"d Plan Check
10
Working Days
3`d Plan Check
5
Working Days
Plan Submittal Plan Check Turn -Around (From Recent from City Staff)
1PlaT n Check 10 Working Days
2nd Plan Check %0 Working Days
P Plan Check .5 Working Days
For larger, more complex projects such as golf course developments, one (1) additional
week for the 1 stand 2nd plan check shall be provided, if necessary to complete a thorough
plan check. The consultant shall advise the Contract Officer, in writing, if additional time is
needed.
Normal plan check operations will be conducted as follows:
Vt Submittal
Upon completing the 15t review, the Consultant shall submit the 'red lined" plans and a
copy of the applicable Plan Check List to the City. The City will provide supplemental
comment as necessary and forward "red lined" plans to the applicant.
2"d and Subsequent Submittals
Upon receipt of the 22" round plan check submittal from the applicant and upon completing
the 2"d review, the Consultant shall submit "red lined" plans and a copy of the applicable 2"
review Plan Check List to the City. The City will provide supplemental comment as
applicable and forward 2"d review 'red lined" plans to the applicant. The process of
applicant correction, Consultant review followed by City review and 'red lined" plan return
to applicant shall continue until approvable plans are generated and a plan approval letter
is submitted to the City by the Consultant.
If necessary, the Consultant shall be available to meet with City staff and/or the applicant
to review the plan check comments. The Consultant will communicate directly with the
applicant regarding plan check issues and clarifications. The City desires an average of no
more than 3 plan check rounds before final plan approval.
�3�
The Consultant shall also maintain a plan check log as follows to track the plan check
status. The plan check log shall include the following information:
1) Receipt Date
2) Transmittal Dates
3) Who is Receiving the Information
4) Status of Plan Check
5) Project Description and City Plan Check Number
6) Plan Check Fees
The Consultant shall maintain all files for a period of three years. Copies of requested files
will be furnished to the City upon request.
Map Check Compensation
Map check payment shall be made in full at the following "fixed fee" rates as specified
for Tract Maps and Parcel Maps:
Tract Maps $ 2,250 base fee plus $ 35 per lot (including both lettered and
numbered lots)
Parcel Maps $ 2,250 base fee plus $ ff per parcel (including both lettered and
numbered lots)
Lot Line Adjustment $ -450 base fee plus $ 0 fee per line adjusted
This rate shall be compensation for up to three (3) map checks. Payment for additional
map checks after the third check shall be made at the rates listed in the Schedule of
Billing Rates attached herewith for the actual hours submitted in conformance with
Section 2.2 of the Agreement. An estimate of hours to complete the map check (after
the third check) shall be made in writing to the Contract Officer for approval as
specified in Section 1.6 - Additional Services of the Agreement.
Compensation for the first three map checks shall be distributed at the following
schedule:
First Map Check 65% of the Total Map Check Fee
Second Map Check 20% of the Total Map Check Fee
Third Map Check 15% of the Total Map Check Fee
The Consultant shall be compensated upon the completion of each map check as
indicated in the above schedule and in conformance with Section 2.2 of the
Agreement. If a project is suspended, either definitely or indefinitely, the Consultant
shall be compensated based on the last completed map, check. If the map check
process is completed prior to the third map check, 100% of the map check fee will be
paid upon completion of the final map check.
Consultant may be requested to provide additional map checks after the third check.
Consultant receives no additional compensation for delivery or postage fees necessary to w J
transmit or receive plans from City.
Consultant also may be requested to provide supplemental map checking or general map
consulting services for specific development related engineering projects for the City as
applicable.
Payment shall be made in full at an hourly rate of:
$ M per hour— no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Plan Check Compensation
Plan check payment shall be made in full at a "fixed fee' rate: of:
$ 306 per sheet (submittals with 1-5 sheets in quantity)
$ 27.5 per sheet (submittals with 6-15 sheets in quantity)
$ 250 per sheet (submittals with 16 or more sheets in quantity)
Sheet counts are based on the number of sheets submitted for plan check. Sheets may
include title and detail sheets, street plans, storm drain plans, traffic plans, meandering
sidewalk and parkway grading plans, rough & precise grading plans at 30,40 or 50 feet per
inch scale.
Consultant receives no additional compensation for review of supporting documents
including, but not limited to hydrology and hydraulic calculation reports, soils reports &
engineer's cost estimates, conditions of approval, tentative tract and parcel maps.
Consultant receives no additional compensation for delivery or postage fees necessaryto
transmit or receive plans from City.
This rate shall be compensation for up to three (3) plan checks. Supplemental paymentfor
additional plan checks after the third check or for special engineering reports including
LAQMP Dust Control Plans, Storm Water Pollution Prevention Plans and Traffic Reports,
shall be in made at the rates listed in the Schedule of Billing Rates attached herewith for
the actual hours submitted in conformance with Section 2.2 of the Agreement. An estimate
of hours to complete the plan check (after the third plan check) or for special reports shall
be made in writing to the Contract Officer for approval as specified in Section 1.6 -
Additional Services of the Agreement.
Compensation for the first three plan checks shall be distributed at the following schedule:
First Plan Check
65% of the Total Plan Check Fee
Second Plan Check
20% of the Total Plan Check Fee
Third Plan Check
15% of the Total Plan Check Fee
The Consultant shall be compensated upon the completion of each plan check as
indicated in the above schedule and in conformance with Section 2.2 of the Agreement. If
a project is suspended, either definitely or indefinitely, the Consultant shall be
compensated based on the last completed plan check. If the plan check process is
completed prior to the third plan check, 100% of the plan check fee will be paid upon_
completion of the final plan check. w J C
The Consultant shall separately invoice per plan and per plan check. No exceptions will
be allowed to the payment schedule.
Consultant also may be requested to provide general civil consulting services for speck
development related engineering projects for the City as applicable.
Payment shall be made in full at an hourly rate of:
$ /90 per hour — no overtime, travel time, expenses or other administrative charges will
be allowable over and above the stated hourly rate schedule.
Prevailing Wage - In accordance with Section 1770 of the Labor Code, the City has ascertained
and does hereby specify that the prevailing wage rates shall be those provided in Article 1110-
20.0, WAGE RATES. The said rates shall include all employer payments that are required by
Section 1773.1 of the Labor Code. The City will furnish to the Contractor, upon request, a copy
of such prevailing rates. It shall be the duty of the Contractor to post a copy of such prevailing
wages at the job site. .
CONSULTANT: /
By: 6 ✓-( kJ41L;: Date: 10/17/06
Name: David Gilbertson
Title: Vice President
2w 7
Exhibit C
Special Requirements
None.
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AGENDA CATEGORY:
COUNCIL/RDA MEETING DATE: December 5, 2006 BUSINESS SESSION: _
ITEM TITLE: Approval of New Job Descriptions: CONSENT CALENDAR:
Assistant City Manager — Development Services and
Assistant City Manager — Management Services STUDY SESSION:
PUBLIC HEARING:
RECOMMENDATION:
Approve new job descriptions for the positions of Assistant City Manager.
FISCAL IMPLICATIONS:
The cost for one of the positions has been incorporated into the current Fiscal Year
2006/07 budget. The proposed additional Assistant City Manager position will be
incorporated into the current budget at Range 94 ($10,778-$13,101 per month). The
salaries for both positions are currently under review.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Staff has reviewed the current position description and has determined that it would
be beneficial to divide the duties of the position and create two separate Assistant City
Manager positions.
The first position of Assistant City Manager would have a primary assignment in the
areas of economic development and Redevelopment Agency operations, and would be
titled "Assistant City Manager — Development Services" (Attachment 1). The primary
areas of responsibility would be in the areas of oversight and management of all
economic development projects, including SilverRock Resort, as well as most of the
issues that come before the Redevelopment Agency for discussion and review. The
position would also be responsible for other general operational activities, and would
assist with Management Services issues, as needed.
The second position of Assistant City Manager would be responsible for operational
and organizational management activities, and would be titled "Assistant City Manager
- Management Services" (Attachment 2). The primary areas of responsibility would
be in the areas of: Personnel/Risk Management, Public Information, Solid Waste, Cable
Television, and Grants Administration. The position would also be involved with
oversight of general operational activities and would assist with economic development
and Redevelopment Agency issues, as needed. Both positions would report directly to
the City Manager.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Approve the job descriptions for the Assistant City Manager; or
2. Do not approve the job descriptions for the Assistant City Manager; or
3. Provide staff with alternative direction.
Respectfully submitted,
Jon uiz, Perso el/ ' c Manager
Approved for submission by:
TT oma�ovese City Manager
r
Attachments: 1. Assistant City Manager (Development Services)
2. Assistant City Manager (Management Services)
20�
ATTACHMEN'
THE CITY OF LA QUINTA
ASSISTANT CITY MANAGER - DEVELOPMENT SERVICES
GENERAL STATEMENT OF JOB
Under executive direction, assists the City Manager in planning, organizing and
directing the activities of all City departments; coordinates activities among and
with other departments; provides highly complex staff assistance to the City
Manager and City Council; provides assistance, centralized leadership and
coordination for City redevelopment and economic development programs and
projects; provides centralized leadership of activities and programs for existing and
prospective commercial and industrial businesses desiring to relocate and/or expand
in the City of La Quinta; assists in directing the activities of the Redevelopment
Agency on behalf of the City Manager; coordinates activities with outside agencies
and organizations; may assist in directing the administrative activities of the City.
REPORTS TO: City Manager.
ESSENTIAL FUNCTIONS
The following duties are normal for this position. These are not to be
construed as exclusive or all-inclusive. Other duties may be required and
assigned.
• Coordinate and perform administrative and professional duties
necessary to achieve program objectives in the areas of economic
development, business assistance and business financing; coordinate
and promote revitalization projects, commercial and light industrial
development, retail, hotels, and similar programs;
• Oversee complicated negotiations with developers and property
owners relative to the acquisition and disposition of property and
improvements.
• Oversee and manage effectively all aspects of economic development
and a complex and multi -faceted Redevelopment Agency;
• Participates in the development and implementation of goals,
objectives, policies and procedures for the City and Redevelopment
Agency;
• Directs, oversees and/or prepares complex analysis relating to project
proposals, sale and purchase of land, municipal financing, disposition
and development agreements, owner participation agreements, joint
powers agreements and other documents necessary for conducting
operations in municipal government;
• Assists in the budget preparation process;
• Assists in the administration of all activities of the Redevelopment
Agency;
• Conducts activities and discussions with other governmental entities
regarding regional issues;
• Supervises assigned staff, including instructing, recruiting, selecting,
and allocating employees, reviewing and planning work, maintaining
standards, coordinating activities, and transferring or promoting
employees; recommends salary increases and discipline; writes
performance appraisals;
• May conduct investigations into the affairs of the City and any
department or division thereof and any contract or proper performance
of any of the obligations of the City; and further, investigates all
complaints in relation to matters concerning the administration of the
city government and in regard to the services maintained by public
utilities in the City;
• Represents the City at meetings, organizations, clubs and may speak
on behalf of the City at these meetings as requested;
• Assists the City Manager in the contract administration of the City,
which includes the development of new contracts as well as the
ongoing renewal process of existing contract services;
• Selects, supervises and evaluates professional consultant services;
prepares requests for proposals; coordinates and monitors activities
and services; provides technical assistance;
• Assists in managing, overseeing and participating in the preparation,
development, and evaluation of highly technical studies and analyses
related to the Redevelopment Agency and City;
• Maintains effective relationships with subordinates, other
management/administrative personnel and elected officials;
• Formulates and recommends policies, procedures and systems
pertaining to the management of the City and Redevelopment Agency;
• Participates in the preparation, coordination and presentation of the
City's annual budget, capital improvement budget, annual financial
management review, and resource allocation plan and other financial
forecasts, including review of expenditures and revenue;
• Assists with the formulation of economic development goals,
objectives and policies to enhance the fiscal position of the City,
implement the economic development policies of the City and
coordinate and strategize these efforts with all City departments and
Redevelopment Agency; coordinate City efforts with regional
economic development activities;
• Assists, as needed, with the City's personnel management functions,
including recruitment, affirmative action, collective bargaining,
classification, compensation, training and development, benefits
administration and records maintenance;
• Assists, as needed, in developing, planning, implementing and
administering City-wide goals and objectives as well as policies and
procedures necessary to provide City services; may recommend new
or modified programs, systems, policies and procedures, as requested,
and may coordinate inter -departmental activities, as well as City
activities, with outside agencies and organizations;
• Provides staff assistance to the City Manager, City Council and
Redevelopment Agency; prepares and presents staff reports and other
necessary correspondence;
• Serve as Acting City Manager as required;
• Performs various related essential duties as required.
MINIMUM TRAINING AND EXPERIENCE
A Bachelors degree with major course work in public administration, business
administration or a closely related field; a Masters degree is desirable.
At least 5 years of increasingly responsible municipal experience including
significant financial and redevelopment management responsibilities; or any
equivalent combination of training and experience which provides the required
skills, knowledge and abilities.
KNOWLEDGE AND ABILITIES
REQUIRED TO PERFORM ESSENTIAL JOB FUNCTIONS
Knowledge of.•
• principles and practices related to municipal Redevelopment and
Economic Development programs and projects;
• principles and practices of public agency administration;
• principles and practices of local government Redevelopment
administration, including employee supervision, training, and appraisal;
budget preparation and control; contract administration; legal
procedures; redevelopment procedures; negotiation of disposition and
development agreements;
• methods and techniques of public administration research, analysis
and report preparation;
• modern and highly complex principles and practices of public agency
accounting and finance;
• Redevelopment Law.
Physical Requirements:
• Ability to operate a variety of automated office machines including an
adding machine, copier, personal computer, and fax machine;
• Ability to coordinate eyes, hands and fingers in performing semi -skilled
tasks including word processing and data entry;
• Ability to exert negligible physical effort in sedentary to light work
involving sitting most of the time, but may involve walking or moving
from one area of the office to another, and standing for brief periods
of time;
• Ability to exert a negligible amount of force frequently to lift, carry,
push, pull, or otherwise move objects.
Supervisory Responsibilities:
• Ability to assign, review, plan and coordinate the work of other
employees;
• Ability to provide instruction and guidance to staff; and promote staff
development and motivation; analyze problems that arise in the areas
under supervision and recommend solutions;
• Ability to recommend the discipline or discharge of staff, approve
transfer or promotions of employees;
• Ability to access the work of employees and write performance
appraisals.
Mathematical Ability:
• Ability to compute and apply descriptive statistics and formulas
involving variables.
Judgment and Situational Reasoning Ability:
• Ability to apply common sense understanding to perform semi -
repetitive tasks such as word processing;
• Ability to apply principles of logical functions in budgeting
• Ability to use independent judgment in periodically non -routine
situations, such as determining appropriate financial information
needed for complex financial analysis.
Language Ability and Interpersonal Communication:
• Ability to comprehend and correctly use a variety of informational
documents including development proposals, audited financials, pro
formas and financial analyses, and special studies and reports;
• Ability to prepare letters of correspondence, agenda items, and
financial analysis using prescribed format and conforming to all rules
of punctuation, grammar, diction and style;
• Ability to comprehend a variety of reference books and manuals
including financial statements, code books and ordinances, policy
manuals, budget documents, maps, and professional publications;
• Ability to communicate verbally and in writing and maintain effective
working relationships with public officials, attorneys, consultants,
developers, coworkers, supervisors, members of the public, and other
City personnel;
• Ability to prepare and present accurate, concise reports to
Commissions, Boards, City Council and Redevelopment Agency.
Environmental Adaptability:
e Ability to work in an office environment.
The City of La Quinta is an Equal Opportunity Employer. In compliance with the
Americans With Disabilities Act, La Quinta will provide reasonable accommodations to
qualified individuals with disabilities and encourages both prospective employees and
incumbents to discuss potential accommodations with the employer.
November 2006
ATTACHMENT
THE CITY OF LA QDINTA
ASSISTANT CITY MANAGER - MANAGEMENT SERVICES
GENERAL STATEMENT OF JOB
Under executive direction, assists the City Manager in planning, organizing and
directing the activities of all City departments; coordinates activities among and
with other departments; provides highly complex staff assistance to the City
Manager and City Council; assists in directing the administrative activities of the
City on behalf of the City Manager; participates in the development,
implementation, and administration of administrative policies, procedures, and
programs; coordinates activities with outside agencies and organizations; may
assist with some economic development and Redevelopment Agency activities.
REPORTS TO: City Manager.
ESSENTIAL FUNCTIONS
The following duties are normal for this position. These are not to be
construed as exclusive or all-inclusive. Other duties may be required and
assigned.
• Participates in the development and implementation of goals,
objectives, policies and procedures for the City and, when needed, the
Redevelopment Agency;
• Directs, oversees and/or prepares complex analysis relating to project
proposals, joint powers agreements and other documents necessary
for conducting operations in municipal government;
• Assists in the budget preparation process;
• Conducts activities and discussions with other governmental entities
regarding regional issues;
• Supervises assigned staff, including instructing, recruiting, selecting,
and allocating employees, reviewing and planning work, maintaining
standards, coordinating activities, and transferring or promoting
employees; recommends salary increases and discipline; writes
performance appraisals;
• May conduct investigations into the affairs of the City and any
department or division thereof and any contract or proper performance
of any of the obligations of the City; and further, investigates all
complaints in relation to matters concerning the administration of the
city government and in regard to the services maintained by public
utilities in the City;
• Responds to and resolves difficult and sensitive complaints and
inquiries from the public; prepare draft responses; review with City
Manager as appropriate;
e Represents the City at meetings, organizations, clubs and may speak
on behalf of the City at these meetings as requested;
• Assists the City Manager in the contract administration of the City,
which includes the development of new contracts as well as the
ongoing renewal process of existing contract services;
• Selects, supervises and evaluates professional consultant services;
prepares requests for proposals; coordinates and monitors activities
and services; provides technical assistance;
• Formulates and recommends policies, procedures and systems
pertaining to the management of the City;
• Oversees the City's personnel management functions, including
recruitment, affirmative action, collective bargaining, classification,
compensation, training and development, benefits administration and
records maintenance;
• Resolves a wide variety of difficult administrative and technical
problems; maintains effective relationships with subordinates, other
management/administrative personnel and elected officials;
• Supervises the conduct of studies, surveys, and the collection of
information on difficult operational and administrative problems;
analyzes findings and prepares reports of practical solutions for
review;
e Oversees/conducts review and analysis of legislation impacting the
City;
• Assist in developing, planning, implementing and administering City-
wide goals and objectives as well as policies and procedures
necessary to provide City services; recommends new or modified
programs, systems, policies and procedures and coordinates inter-
departmental activities, as well as City activities, with outside
agencies and organizations;
• Provides staff assistance to the City Manager and City Council;
prepares and presents staff reports and other necessary
correspondence;
• Oversees risk management;
• Acts as the City's Public Information Officer and Employee Relations
Officer;
• Oversees all activities involving Cable TV, solid waste, and grants
administration;
• Serve as Acting City Manager as required;
• Performs various related essential duties as required.
MINIMUM TRAINING AND EXPERIENCE
A Bachelors degree with major course work in public administration, business
administration or a closely related field; a Masters degree is desirable.
At least 5 years of increasingly responsible municipal experience including
significant financial management and human resources responsibilities; or any
equivalent combination of training and experience which provides the required
skills, knowledge and abilities.
KNOWLEDGE AND ABILITIES
REQUIRED TO PERFORM ESSENTIAL JOB FUNCTIONS
Knowledge of.•
• principles and practices of public agency administration;
• methods and techniques of public administration research, analysis
and report preparation;
• public relations techniques;
• principles and practices of labor negotiations;
• principles of grant application and proposal preparation and grant
monitoring and reporting techniques;
• modern and highly complex principles and practices of public agency
accounting and finance;
• principles of human resources.
Physical Requirements:
• Ability to operate a variety of automated office machines including an
adding machine, copier, personal computer, and fax machine;
• Ability to coordinate eyes, hands and fingers in performing semi -skilled
tasks including word processing and data entry;
• Ability to exert negligible physical effort in sedentary to light work
involving sitting most of the time, but may involve walking or moving
from one area of the office to another, and standing for brief periods
of time;
• Ability to exert a negligible amount of force frequently to lift, carry,
push, pull, or otherwise move objects.
Supervisory Responsibilities:
• Ability to assign, review, plan and coordinate the work of other
employees;
• Ability to provide instruction and guidance to staff; promote staff
development and motivation; analyze problems that arise in the areas
under supervision and recommend solutions;
• Ability to recommend the discipline or discharge of staff, approve
transfer or promotions of employees;
• Ability to access the work of employees and write performance
appraisals.
Mathematical Ability:
• Ability to compute and apply descriptive statistics and formulas
involving variables.
Judgment and Situational Reasoning Ability:
• Ability to apply common sense understanding to perform semi -
repetitive tasks such as word processing;
• Ability to apply principles of logical functions in budgeting;
• Ability to use independent judgment in periodically non -routine
situations, such as determining appropriate financial information
needed for complex financial analysis.
Language Ability and Interpersonal Communication:
• Ability to comprehend and correctly use a variety of informational
documents including development proposals, audited financials, pro
formas and financial analyses, and special studies and reports;
• Ability to prepare letters of correspondence, agenda items, and
financial analysis using prescribed format and conforming to all rules
of punctuation, grammar, diction and style;
• Ability to comprehend a variety of reference books and manuals
including financial statements, code books and ordinances, policy
manuals, budget documents, maps, and professional publications;
• Ability to communicate verbally and in writing and maintain effective
working relationships with public officials, attorneys, consultants,
developers, coworkers, supervisors, members of the public, and other
City personnel;
• Ability to prepare and present accurate, concise reports to
Commissions and City Council.
Environmental Adaptability:
• Ability to work in an office environment.
The City of La Quinta is an Equal Opportunity Employer. In compliance with the
Americans With Disabilities Act, La Quinta will provide reasonable accommodations to
qualified individuals with disabilities and encourages both prospective employees and
incumbents to discuss potential accommodations with the employer.
November 2006
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Approval of a Supplemental Agreement
with Riverside County for the Use of Community
Development Block Grant (CDBG) Funds for
Reconstruction of the Village Round -About and
Public Service Funds for the Boys and Girls Club - La
Quinta Unit, Fee Waiver/Reduction Program
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION: _n
CONSENT CALENDAR: 8
STUDY SESSION:
PUBLIC HEARING:
Approval of a Supplemental Agreement with Riverside County for the Use of
Community Development Block Grant (CDBG) Funds for the Reconstruction of the
Village Round -About, and Public Service Funds for the Boys and Girls Club - La
Quinta Unit, Fee Waiver/Reduction Program.
FISCAL IMPLICATIONS
The City will receive reimbursement of $190,911 in CDBG Entitlement Funds for
the improvements on Calle Tampico ($160,911), and public service funds for the
Boys and Girls Club - La Quinta Unit, Fee Waiver/Reduction Program ($30,000).
CHARTER CITY IMPLICATIONS
None.
BACKGROUND AND OVERVIEW
The purpose of this Supplemental Agreement, between the City and Riverside
County, is to authorize the use of CDBG funds for Fiscal Year 2006-2007 in the
amount of $190,911 in accordance with the Housing and Community Development
Act of 1974. This allocation reflects a proportional share of the Riverside County's
entitlement allocation and a 10% across-the-board cut in grant funds by H.U.D.
The City submitted CDBG applications to the County for the projects in January,
2006 for $202,600 which included $172,600 for the reconstruction of the Village
Round -About and $30,000 for the Boys and Girls Club - La Quinta Unit Fee
Waiver/Reduction Program. The applications were subsequently approved, as
submitted, by the Board of Supervisors.
J ,
This Supplemental Agreement is for projects which have been approved by the City
Council on January 17, 2006 under Resolution 2006-009 and are available with the
beginning of the new Federal Fiscal Year which begins October 1, 2006. Monies
become available for reimbursement to the City upon approval of this Agreement by
the City and the Riverside County Board of Supervisors.
For the past 22 years, the City of La Quinta has been participating in the Urban
Counties CDBG program with Riverside County. Entitlement Funds for CDBG prior
Program Years have been expended for projects such as: Senior Center
construction, La Fonda Street construction and public service funds for the Boys
and Girls Club - La Quinta Unit. The City has previously entered into Supplemental
Agreements with the County for the use of CDBG funds.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Approve the Supplemental Agreement and authorize the Mayor to sign the
Agreement to utilize the sum of $ 190,911 in CDBG Entitlement Funds for
the reconstruction of the Village Round -About ($160,911), and public service
funds for the Boys and Girls Club - La Quinta Unit, Fee Waiver/Reduction
Program ($30,000); or
2. Do not Approve the Supplemental Agreement and authorize the Mayor to
sign the Agreement to utilize the sum of $190,911 in CDBG Entitlement
Funds for the reconstruction of the Village Round -About ($160,911), and
public service funds for the Boys and Girls Club — La Quinta Unit, Fee
Waiver/Reduction Program ($30,000); or
3. Provide staff with alternative direction.
Respectfully submitted,
Douglas R vans
Commun ty Development Director
Approved for submission by:
Thomas P. Genovese, City Manager
Attachment : 1. CDBG Agreement
ATTACHMENT #1
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File: 4.LQ036 — 4.LQ037
SUPPLEMENTAL AGREEMENT FOR THE USE OF
COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS
The COUNTY OF RIVERSIDE of the State of California, herein called, "COUNTY,"
and the CITY OF LA QUINTA, herein called "CITY," mutually agree as follows:
1. GENERAL. COUNTY and CITY have executed a Cooperation Agreement dated
July 12, 2005, whereby CITY elected to participate with COUNTY, which has qualified as an
"Urban County" for purposes of receiving Community Development Block Grant (CDBG)
funds, and to assist and undertake essential community development and housing assistance
activities pursuant to the Housing and Community Development Act of 1974, as amended,
hereinafter referred to as "Act". Said Cooperation Agreement dated July 12, 2005, is
incorporated herein by reference and made a part of this Agreement as if each and every
provision was set forth herein.
2. PURPOSE. CITY promises and agrees to undertake and assist with the
community development activities, within its jurisdiction, by utilizing the sum of $190,911,
CDBG Entitlement Funds, as specifically identified in Exhibits A and B are attached hereto and
by this reference are incorporated herein, for the projects:
4 LQ036 Round -A -Bout Intersection Reconstruction, $160,911.
4 LQ037 Membershiv Fees Waiver/Reduction Pro¢ram, $30,000.
3. TERM OF AGREEMENT. The term of this Agreement for the projects shall be
for a period of one (1) year from July 1, 2006 to June 30, 2007, and proceed consistent with the
completion schedule set forth in Exhibits A and B. In the event that the projects are not
substantially completed by the time set forth in the completion schedule due to unforeseen or
uncontrollable causes, the COUNTY may consider extending the schedule for the completion of
the project. Times of performance for other activities may also be extended in writing by
COUNTY. If substantial progress toward completion in conformance with the completion
schedule, as determined by COUNTY, of the projects are not made during the term of the
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upplemental Agreement, COUNTY may suspend or terminate this agreement by the procedures
,t forth in the Section titled "Termination", of this agreement and the entitlement funds
ssociated with the projects may be reprogrammed by COUNTY after appropriate notice is
,iven.
4. DISPOSITION OF FUNDS. COUNTY's Board of Supervisors shall determine
he final disposition and distribution of all funds received by COUNTY under the Act consistent
vith the provisions of Paragraphs 2 and 3 of this Agreement. COUNTY, through its Economic
Development Agency, shall: (1) Make payment of the grant funds to CITY as designated in
Exhibits A and B; (2) It is the CITY's responsibility to monitor all project activities of Exhibits
A and B to ensure compliance with applicable federal regulations and the terms of this
Agreement. CITY shall comply with timely drawdown of funds by submitting monthly requests
for reimbursement. All disbursements of grant funds will be on a reimbursement basis and made
within thirty (30) days after the CITY has submitted its letter identifying payments and
documentation which supports expenditures.
All authorized obligations incurred in the performance of the Agreement for projects
eligible under the following regulations must be reported to COUNTY no later than by June 5,
2007:
a. Public Services [24 CFR 570.201 (e)]
b. Acquisition [24 CFR 570.201 (a)]
C. Clearance Activities [24 CFR 570.201 (d)]
d. Interim Assistance [24 CFR 570.201 (f)]
e. Code Enforcement [24 CFR 570.202 (c)]
All other eligible activities under this Agreement must be implemented, completed, and
obligations reported by the CITY no later than the completion schedules set forth in the Exhibits
to this Agreement.
5. COOPERATION WITH HOUSING ACTIVITIES. CITY shall cooperate with
COUNTY in undertaking essential community development and housing assistance activities,
specifically urban renewal and public assistance housing, and shall assist COUNTY in carrying
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)ut its Strategic Plan of the Consolidated Plan and other requirements of the Community
development Block Grant Program.
6. LEAD AGENCY FOR COMPLIANCE WITH THE CALIFORNIA
'NVIRONMENTAL QUALITY ACT (CEOA). Pursuant to Section 15051(d) of Title 14 of the
California Administrative Code, CITY is designated as the lead agency for the projects that are
[he subject matter of this Agreement.
7. HOLD HARMLESS AND INDEMNIFICATION. CITY shall comply with all
applicable laws, rules and regulations, and shall indemnify, save and hold harmless COUNTY
and its agency members and their respective agents, servants and employees of and from any and
all liabilities, claims, debt, damages, demands, suits, actions and causes of action of whatsoever
kind, nature or sort including, but not by way of limitation, wrongful death, expenses of the
defense of said parties, and the payment of attorney's fees, arising out of or in any manner
connected with the performance by CITY under this Agreement.
8. RECORDS AND INSPECTIONS.
a. CITY shall establish and maintain records in accordance with 24 CFR Part
570, Part 85, OMB Circular A-87, and 24 CFR 91.105, as applicable, and as they relate to the
acceptance and use of federal funds under this Agreement.
b. CITY shall maintain a separate account for CDBG Entitlement funds
f received as set forth in Exhibits (A and B).
C. CITY shall, during the normal business hours, make available to
COUNTY, the U.S. Department of Housing and Urban Development (HUD), or other authorized
representative, for the examination and copying all of its records and other materials with
respect to matters covered by this Agreement.
d. CITY shall not retain any program income as defined in Section 570.500
of Title 24 of the Federal Code of Regulations. Said program income shall be used only for the
activities that are the subject of this Agreement. Further, all provisions of this Agreement shall
apply to such activities.
e. The CITY shall ensure that at least fifty-one percent (51%) of the persons
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enefiting from all CDBG-funded activities or projects designated as serving limited clientele
570.208(a)(2)(i)]are of low and moderate income and meet the program income guidelines
Lttached as Exhibits (A and B). The CITY must provide the required direct benefit
locumentation.
9. FEDERAL REQUIREMENTS. CITY shall comply with all applicable federal,
,tate and local laws, regulations and ordinances and any amendments thereto and the federal
:egulations and guidelines now or hereafter enacted pursuant to the Act. More particularly,
CITY is to comply with those regulations found in Part 85 and Part 570 of Title 24 of the Code
of Federal Regulations. CITY is to comply with OMB Circular A-87, or any subsequent
replacement. CITY is to abide by the provisions of the Community Development Block Grant
Manual, prepared by COUNTY and cited in the above -mentioned Cooperation Agreement.
CITY will comply with Section 3 of the Housing & Urban Development Act of 1968, as
amended, attached hereto as Exhibit "S". CITY will comply with the provisions of 24 CFR Part
570.200 6), attached as Exhibit "R," pertaining to inherently religious activities.
10. INDEPENDENT CONTRACTOR. CITY and its agents, servants and employees
shall act at all times in an independent capacity during the term of this Agreement, and shall not
act as, shall not be, nor shall they in any manner be construed to be agents, officers or employees
of the COUNTY.
11. TERMINATION.
a. CITY. CITY may not terminate this Agreement except upon express
written consent of COUNTY.
b. COUNTY. Notwithstanding the provisions of Paragraph I Ia, COUNTY
may suspend or terminate this Agreement upon written notice to CITY of action being taken and
the reason for such action:
(1) In the event CITY fails to perform the covenants herein contained
at such times and in such manner as provided in this Agreement; and
(2) In the event there is a conflict with any federal, state or local law,
ordinance, regulation or rule rendering any of the provisions of this Agreement invalid or
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ntenable; or
(3) In the event the funding from the Department of Housing and
Jrban Development referred to in Paragraphs 1 and 2 above is terminated or otherwise becomes
navailable.
C. Upon suspension of this Agreement, CITY agrees to return any
mencumbered funds which it has been provided by COUNTY. In accepting said funds,
OUNTY does not waive any claim or cause of action it may have against CITY for breach of
his Agreement.
d. Upon suspension of this Agreement, CITY agrees not to incur any
additional cost with regard to the projects that are cited in the written notice as necessitating the
suspensions.
12. NONDISCRIMINATION. CITY shall abide by Sections 570.601 and 570.602 of
Title 24 of the Federal Code of Regulations which requires that no person in the United States
shall on the grounds of race, color, national origin, or sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity funded in
whole or in part with Community Development funds.
13. PROHIBITION AGAINST CONFLICTS OF INTEREST
a. CITY and its assigns, employees, agents, consultants, officers and elected
and appointed officials shall become familiar with and shall comply with the CDBG regulations
prohibiting conflicts of interest contained in 24 CFR 570.611, attached hereto as Exhibit "Cl"
and by this reference incorporated herein.
b. CITY and its assigns, employees, agents, consultants, officers, and elected
and appointed officials shall become familiar with and shall comply with Section A-11 of the
County's CDBG Policy manual, attached hereto as Exhibit "Cl" and by this reference
incorporated herein.
C. CITY understands and agrees that no waiver of exception can be granted
to the prohibition against conflict of interest except upon written approval of HUD pursuant to
24 CFR 570.611 (d). Any request by CITY for an exception shall first be reviewed by
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;OUNTY to determine whether such request is appropriate for submission to HUD. In
letermining whether such request is appropriate for submission to HUD, COUNTY will consider
he factors listed in 24 CFR 570.611 (e).
d. Prior to any funding under this Agreement, CITY shall provide COUNTY
with a list of all employees, agents, consultants, officers and elected and appointed officials who
ire in a position to participate in a decision making process, exercise any functions or
-esponsibilities, or gain inside information with respect to the CDBG activities funded under this
Agreement. CITY shall also promptly disclose to COUNTY any potential conflict, including
-ven the appearance of conflict, that may arise with respect to the CDBG activities funded under
this Agreement.
e. Any violation of this section shall be deemed a material breach of this
Agreement, and the Agreement shall be immediately terminated by the COUNTY.
14. PROJECT ELIGIBILITY. As to CITY or its claimants, COUNTY shall bear no
liability for any later determination by the United States Government, the Department of
Housing and Urban Development or any other person or entity that CITY is or is not eligible
under 24 CFR Part 570 to receive CDBG funds.
15. USE OF PROPERTY. Whenever federal CDBG funds or program income are
used, in whole or in part, for the purchase of equipment or personal property, the property shall
not be transferred from its originally funded use, by CITY or subrecipient, for a period of five (5)
years from the close-out date of the grant from which CDBG assistance was provided. The
CITY shall maintain a current inventory for COUNTY monitoring and review.
16. EMPLOYMENT OPPORTUNITIES TO BE CAUSED BY PROJECT. CITY
agrees to notify and to require any lessee or assignee to notify Riverside County Workforce
Development Center of any and all job openings that are caused by this project.
17. PUBLICITY. Any publicity generated by CITY for the project funded pursuant
to this Agreement, during the term of this Agreement, will make reference to the Contribution of
the County of Riverside, the Economic Development Agency, and the Community Development
Block Grant Program in making the project possible.
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18. PROGRAM MONITORING AND EVALUATION. CITY and its subrecipients
hall be monitored and evaluated in terms of its effectiveness and timely compliance with the
irovisions of this Agreement and the effective and efficient achievement of the Program
)bjectives. Quarterly reports shall be due on the last day of the month immediately following
he end of the quarter being reported. The quarterly written reports shall include, but shall not be
imited to, the following data elements:
a. Title of program, listing of components, description of
activities/operations.
b. The projected goals, indicated numerically, and also the goals achieved
(for each report period). In addition, identify by percentage and description, the progress
achieved towards meeting the specified goals and identify any problems encountered in meeting
goals.
C. If the CDBG-funded Activity meets a National Objective under 24 CFR
570.208 (a)(2)(i), CITYwill report the following:
household incomes at:
1) Total number of direct beneficiaries (clientele served) with
• Above 80% MHI
• Between 50% and 80% MHI (Low -Income)
• Between 30% and 50% MHI (Very Low -Income)
• Less than 30% MHI (Extremely Low -Income)
2) Total number and percent (%) of the clientele served that have
`household incomes at or below 80% MHI
3) Racial ethnicity of clientele
4) Number of Female -Headed Households
CITY and its subrecipients shall report beneficiary statistics monthly to EDA on the pre -
approved Direct Benefit Form and Self -Certification Form (certifying income, family size, and
racial ethnicity) as required by HUD. Updated forms are to be provided to CITY by EDA should
HUD implement changes during the term of this agreement.
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CITY and subrecipients will collect and provide all necessary data required by HUD
iertaining to the Specific Outcome Indicators as identified in the CPD Outcome Performance
vleasurement System.
19. ENTIRE AGREEMENT. It is expressly agreed that this Agreement together with
he cooperation Agreement between the parties, embodies the entire agreement of the parties in
-elation to the subject matter thereof, and that no other Agreement or understanding, verbal or
)therwise, relative to this subject matter, exists between the parties at the time of execution.
20. MINISTERIAL ACTS. The Assistant County Executive Officer/EDA or
designee(s) are authorized to take such ministerial actions as may be necessary or appropriate to
implement the terms, provisions, and conditions of this Agreement as it may be amended from
time to time by COUNTY.
21. PRIOR AUTHORIZATION. CITY shall obtain COUNTY's written approval
from the Economic Development Agency prior to implementing the following "high risk"
activities funded with CDBG assistance:
a. Construction of public facilities (project plans and specifications);
b. Acquisition of real property;
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C. Historic Preservation;
d. Relocation; and
e. Economic Development
22. MODIFICATION OF AGREEMENT. This Agreement may be modified or
amended only by a writing signed by the duly authorized and empowered representative of
COUNTY and CITY respectively.
I DATED:
I COUNTY OF RIVERSIDE
I Bv:
Deputy Director
SH:JT:MT:sj
CITY OF LA QUINTA
By:
Mayor
S TDBGWb 7 CDBG Mnw TrukengTity -U Qumh\SuppietnenWi Ageement u Quin. mind dm
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Prohibition Against Conflicts of Interest
EXHIBIT CI , page 1 of 4
41 Conflict of interest.
Applicability.
(1) In the procurement of supplies, equipment, construction, and services by recipients, and by
ipients (including those specified at § 570.204(c)), the conflict of interest provisions in 24 CFR 85.36 and
--ircular A 110, respectively, shall apply.
(2) In all cases not governed by 24 CFR 85.36 and OMB Circular A-110, the provisions of thi:
i shall apply. Such cases include the acquisition and disposition of real property and the provision o:
nce by the recipient, by its subrecipients, or to individuals, businesses and other private entities unde
e activities which authorize such assistance (e.g., rehabilitation, preservation, and other improvements o
properties or facilities pursuant to § 570.202, or grants, loans and other assistance to businesses
duals and other private entities pursuant to § 570-203, § 570.204 or § 570.455).
Conflicts prohibited. Except for the use of CDBG funds to pay salaries and other related administrativ
sonnel costs, the general rule is that no persons described in paragraph (c) of this section who exercise c
-xercised any functions or responsibilities with respect to CDBG activities assisted under this part or wh
a position to participate in a decision making process or gain inside information with regard to suc
ties, may obtain a personal or financial interest or benefit from a CDBG assisted activity, or have a
st in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either fr
>elves or those with whom they have family or business ties, during their tenure or for one year thereafte
ie UDAG program, the above restrictions shall apply to all activities that are a part of the UDAG projec
hall cover any such interest or benefit during, or at any time after, such person's tenure.
Persons covered. The conflict of interest provisions of paragraph (b) of this section apply to any pers(
is an employee, agent, consultant, officer, or elected official or appointed official of the recipient, or of ar
;Hated public agencies, or subrecipients which are receiving funds under this part.
Exceptions: threshold requirements. Upon the written request of the recipient, HUD may grant
ption to the provisions of paragraph (b) of this section on a case -by -case basis when it determines that sw
xception will serve to further the purposes of the Act and the effective and efficient administration of t
)ient's program or project. An exception may be considered only after the recipient has provided t
swing:
(1) A disclosure of the nature of the conflict, accompanied by an assurance that there has be
iic disclosure of the conflict and a description of how the public disclosure was made; and
(2) An opinion of the recipient's attorney that the interest for which the exception is sought woul(
Violate State or local law.
Prohibition Against Conflicts of Interes
EXHIBIT Cl, page 2 of I
Factors to be considered for exceptions. In determining whether to grant a requested exception after th(
;nt has satisfactorily met the requirements of paragraph (d) of this section, HUD shall consider th(
ative effect of the following factors, where applicable:
(1) Whether the exception would provide a significant cost benefit or an essential degree o
:ise to the program or project which would otherwise not be available;
(2) Whether an opportunity was provided for open competitive bidding or negotiation;
(3) Whether the person affected is a member of a group or class of low or moderate incom
as intended to be the beneficiaries of the assisted activity, and the exception will permit such person t
,e generally the same interests or benefits as are being made available or provided to the group or class;
(4) Whether the affected person has withdrawn from his or her functions or responsibilities, or th
ion making process with respect to the specific assisted activity in question;
(5) Whether the interest or benefit was present before the affected person was in a position a
ibed in paragraph (b) of this section;
(6) Whether undue hardship will result either to the recipient or the person affected when weighe
st the public interest served by avoiding the prohibited conflict; and
(7) Any other relevant considerations.
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Prohibition Against Conflicts of Interesl
Exhibit Cl, page 3 of 4
CONFLICT OF INTEREST CODED
RIVERSIDE COUNTY
ECONOMIC DEVELOPMENT AGENCY
October 1989
Conflict of Interest Code is written to comply with Federal Regulations (24 CFR Part 85). Then
ations. Administrative Requirements for Grants and Cooperative Agreements to State, Local an(
ally Recognized Indian Tribal Governments" require that grantees and sub -grantees will maintain ;
n code of standards of conduct governing the performance of their employees engaged in the award am
rstration of contracts.
No employee, officer or agent of the grantee shall participate in the selection, in the award or in th
castration of a contract supported by Federal Funds if a conflict of interest, real or apparent, would b
ved.
Such a conflict will arise when:
i) The employee, officer or agent;
ii) Any member of the immediate family;
iii) His/Her partners, or;
iv) An organization which employs, or is about to employ any of the above has a financial or oth(
interest in the firm's selection for award.
The grantee's or sub -grantee's officers, employees or agents will neither solicit nor accept gratuitie
rs or anything of monetary value from contractors or parties to sub -agreements except as noted in Sectic
A grantee's or sub -grantee's officers, employees or agents will be presumed to have a financial intere
business if their financial interest exceeds the following:
i) Any business entity in which the official has a direct or indirect investment worth one thousand
dollars ($1,000) or more.
ii) Any real property in which the official has a direct or indirect interest worth one thousand
dollars ($1,000) or more.
Prohibition Against Conflicts of Interes
Exhibit Cl, page 4 of �
CONFLICT OF INTEREST CODE
RIVERSIDE COUNTY
ECONOMIC DEVELOPMENT AGENCY
October 1989
iii) Any source of income, other than gifts and other than loans by a commercial lending institutio:
in the regular course of business on terms available to the public without regard to offick
status, aggregating two hundred fifty dollars ($250) or more in value provided to, received by c
promised to the official within 12 months prior to the time when the decision is made.
iv) Any business entity in which the official is a director, officer, partner, trustee, employee, (
holds any position of management.
v) Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating M
hundred fifty dollars ($250) or more in value provided to, received by, or promised to tt
official within 12 months prior to the time when the decision is made.
For purposes of Section 4, indirect investment or interest means any investment or interest owned 1
pouse or dependent child of an official, by an agent on behalf of an official, or by a business entity or tru
rhich the official, the official's agents, spouse, and dependent children own directly, indirectly,
ficially a 10-percent interest or more.
EXHIBIT 'B
CONSTITUTIONAL PROHIBITIO.
Page 1 of
accordance with First Amendment Church/State Principles, as a general rule, CDBG/ESG assistance
ay not be used for religious activities or provided to primarily religious entities for any activities,
.eluding secular activities. The following restrictions and limitations therefore apply to the use of
DBG/ESG funds.
(1) CDBG/ESG funds may not be used for the acquisition of property or the construction or
;habilitation (including historic preservation and removal of architectural barriers) of structures to be
sed for religious purposes or which will otherwise promote religious interests. This limitation includes
ie acquisition of property for ownership by primarily religious entities and the construction or
-habilitation (including historic preservation and removal of architectural barriers) of structures owned
y such entities (except as permitted under paragraph 6) (2) of this section with respect to rehabilitation
nd under paragraph 0) (4) of this section with respect to repairs undertaken in connection with public
ervices) regardless of the use to be made of the property or structure. Property owned by primarily
eligious entities may be acquired with CDBG/ESG funds at no more than fair market value for a non-
eligious use.
(2) CDBG/ESG funds may be used to rehabilitate buildings owned by primarily religious
;ntities to be used for a wholly secular purpose under the following conditions:
(i) The building (or portion thereof) that is to be improved with the CDBG/ESG
issistance has been leased to an existing or newly -established wholly secular entity (which may be an
-ntity established by the religious entity);
(ii) The CDBG/ESG assistance is provided to the lessee (and not the lessor) to make
the improvements;
(iii) The leased premises will be used exclusively for secular purposes available to
persons regardless of religion;
(iv) The lease payments do not exceed the fair market rent of the premises as they
were before the improvements are made;
(v) The portion of the cost of any improvements that also serve a non -leased part of
the building will be allocated to and paid for by the lessor;
(vi) The lessor enters into a binding agreement that unless the lessee, or a qualified
successor lessee, retains the use of the leased premises for a wholly secular purpose for at least the
useful life of the improvements, the lessor will pay to the lessee an amount equal to the residual value of
the improvements;
(vii) The lessee must remit the amount received from the lessor under subparagrapl
(2)(vi) of this section to the recipient or subrecipient from which the CDBG/ESG funds were derived.
EXHIBIT "R
CONSTITUTIONAL PROHIBITIOl
Page 2 of
ie lessee can also enter into a management contract authorizing the lessor religious entity to use the
iilding for its intended secular purpose, e.g., homeless shelter, provision of public services. In such
ise, the religious entity must agree in the management contract to carry out the secular purpose in a
,anner free form religious influences in accordance with the principles set forth in paragraph 0)(3) of
its section.
(3) As a general rule, CDBG/ESG funds may be used for eligible public services to be
rovided through a primarily religious entity, where the religious entity enters into an agreement with
to recipient or subrecipient from which the CDBG/ESG funds are derived that, in connection with the
rovision of such services:
(i) It will not discriminate against any employee or applicant for employment on the
,asis of religion and will not limit employment or give preference in employment to persons on the basis
if religion.
(ii) It will not discriminate against any person applying for such public services on
he basis of religion and will not limit such services or give preference to persons on the basis of
cligion;
(iii) It will provide no religious instruction or counseling, conduct no religious
worship or services, engage in no religious proselytizing, and exert no other religious influence in the
provision of such public services;
(iv) The portion of a facility used to provide the public services shall contain no
religious symbols or decorations, other than those permanently affixed to or part of the structure.
(4) Where the public services provided under paragraph 6)(3) of this section are carried out
on property owned by the primarily religious entity, CDBG/ESG funds may also be used for minor
repairs to such property which are directly related to carrying out the public services where the cost
constitutes in dollar terms only an incidental portion of the CDBG/ESG expenditure for the public
services.
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EXHIBIT "S", page 1 of I
onomic Opportunities for Section 3 Residents and Section 3 Business Concerns
c. 135.38 Section 3 clause.
a section 3 covered contracts shall include the following clause (referred to as the section 3 clause):
The work to be performed under this contract is subject to the requirements of section 3 of the
ousing and Urban Development Act of 1968, as amended, 12 U.S.C. 170lu (section 3). The purpose of
oction 3 is to ensure that employment and other economic opportunities generated by HUD assistance
: HUD -assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low -
id very low-income persons, particularly persons who are recipients of HUD assistance for housing.
The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which
nplement section 3. As evidenced by their execution of this contract, the parties to this contract certify
iat they are under no contractual or other impediment that would prevent them from complying with
ie part 135 regulations.
The contractor agrees to send to each labor organization or representative of workers with which
he contractor has a collective bargaining agreement or other understanding, if any, a notice advising the
abor organization or workers' representative of the contractor's commitments under this section 3
Jause, and will post copies of the notice in conspicuous places at the work site where both employees
and applicants for training and employment positions can see the notice. The notice shall describe the
>ection 3 preference, shall set forth minimum number and job titles subject to hire, availability of
apprenticeship and training positions, the qualifications for each; and the name and location of the
person(s) taking applications for each of the positions; and the anticipated date the work shall begin.
D. The contractor agrees to include this section 3 clause in every subcontract subject to compliance
with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable
provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in
violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any
subcontractor where the contractor has notice or knowledge that the subcontractor has been found in
violation of the regulations in 24 CFR part 135.
E. The contractor will certify that any vacant employment positions, including training positions,
that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons
other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be
directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135.
F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination
of this contract for default, and debarment or suspension from future HUD assisted contracts.
G. With respect to work performed in connection with section 3 covered Indian housing assistance
section 7(b) of the Indian Self -Determination and Education Assistance Act (25 U.S.C. 450e) alsc
applies to the work to be performed under this contract. Section 7(b) requires that to the greatest exten
feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii
preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian
owned Economic Enterprises. Parties to this contract that are subject to the provisions of section 3 am
section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation o
compliance with section 7(b).
EXHIBIT A
Page 1 of 6
4.LQ036
CDBG SUPPLEMENTAL AGREEMENT
SCOPE OF WORK (NON-PUBLIC SERVICE)
I. GENERAL INFORMATION
CITY NAME: City of La Quinta
ADDRESS: PO Box 1504
La Quinta,CA 92247
PROGRAM CONTACTS: Fred Baker, Community Development Director
PHONE: (760) 777-7065 FAX:
E-MAIL:
PROJECT NAME: xo rn A Bout intersection Reconstructs on 9 L0036
PROJECT LOCATION: Avenida Montezuna & Avenida Navarro
LEVEL OF ENVIRONMENTAL CLEARANCE: Categorical Exclusion 58.35 (a)(I)
CDBG ELIGIBILITY CODE: 570.201 (c) Public Facilities 03K
PROJECT FUNDING SUMMARY
1ST District $0 4 h District $0
2nd District $0 5 h District $0
3rd District $0 City Funding $162,274
Project to be administered by County (EDA) on behalf of City: YES ❑ NO 0
II. SCOPE OF SERVICE
A. Activities
City will be responsible for administering a 2006-2007 Community Development Block Grant
for the Round -A -Bout Intersection Reconstruction in a manner satisfactory to the County of
Riverside and consistent with any standards required as a condition of providing these funds.
Such program will include the following activities eligible under the Community Development
Block Grant program:
Activity 41 The City will use CDBG funds for the engineering and design of street
improvements to improve traffic flow and pedestrian safety at the intersection of
Avendia Montezuma and Avenida Navarro.
EXHIBIT A
Page 2 of 6
4.LQ036
B. National Objective
All activities funded with CDBG funds must comply with one of more of the CDBG program's
National Objective Criteria as required under 24 CFR 570.200(a)(2). City certifies that the
activity(ies) carried out under this Agreement will meet the following National Objective:
National Objective Criteria: Low Mod Area
CFR Reference: 570 208(b)(1) —
C. Levels of Accomplishment — Goals and Performance Measures
The City agrees to implement and complete the following activity (ies):
Activity #1 Design and engineering of street improvements. To improve traffic flow and
pedestrian safety.
CPD OUTCOME PERFORMANCE MEASUREMENT
Objectives (select one): O Creating Suitable Living Environments
❑ Providing Decent Affordable Housing
❑ Creating Economic Opportunities
Outcome (select one): ❑ Availability/Accessibility
❑ Affordability
O Sustainability (promoting livable or viable communities)
D. City Capacity
By executing this Supplemental Agreement, the City certifies that it has the appropriate number of
trained and knowledgeable staff, adequate facilities, proper equipment, required licensing and
permitting, and sufficient amount of financial resources necessary to implement and carry out the
activities funded with CDBG funds.
City will immediately notify County of any significant changes in organizational management,
assigned staff, change in facilities, loss or change in matching funds, or any other event that could
potentially impact the City or subrecipient's performance under this Agreement.
Any changes in the above items are subject to the prior approval of the County
EXHIBIT A
Page 3 of 6
4.LQ036
E. Performance Monitoring
The County of Riverside will monitor the performance of the City and its subrecipients against
goals and performance standards as stated above. Substandard performance as determined by the
County will constitute noncompliance with this Agreement. If action to correct such substandard
performance is not taken by the City within a reasonable period of time after being notified by
the County, contract suspension or termination procedures will be initiated.
F. Program Budget
It is expressly agreed and understood that the total amount to be paid by the County under this
Agreement shall not exceed $162,274. Drawdowns for the payment of eligible expenses shall be
made against the line item budgets specified in this Section and in accordance with performance.
Payments may be contingent upon certification of the Subrecipient's financial management
system in accordance with the standards specified in 24 CFR 84.21.
The County may require a more detailed budget breakdown than the one contained herein, and
the City shall provide such supplementary budget information in a timely fashion in the form and
content prescribed by the County. Any amendments to the budget must be approved in writing
by both the County and City.
Line Item Amount:
Design/Engineering Costs $162,274
Project Administration Costs
Construction Costs
Acquisition Costs
Relocation Costs
Capital Equipment Costs
Code Enforcement
Clearance
Interim Assistance
Other
TOTAL CDBG BUDGET
EXHIBIT A
Page 4 of 6
4.LQ036
III. ADMINISTRATIVE REQUIREMENTS
A. Accounting Standards
The City agrees to comply with 24 CFR 84 or 85 as applicable and agrees to adhere to the
accounting principles and procedures required therein, utilize adequate internal controls,
and maintain necessary source documentation for all costs incurred.
B. Cost Principles
The City shall administer its program in conformance with OMB Circulars A-122, "Cost
Principles for Non -Profit Organizations," A-21, "Cost Principles for Educational
Institutions," or OMB Circular A-87, "Cost Principles for State, Local and Indian Tribal
Governments as applicable. These principles shall be applied for all costs incurred
whether charged on a direct or indirect basis
C. Documentation and Record Keeping
Records to be Maintained
The Subrecipient shall maintain all records required by the Federal regulations specified
in 24 CFR 570.506, that are pertinent to the activities to be funded under this Agreement.
Such records shall include but not be limited to:
i Records providing a full description of each activity undertaken;
ii. Records demonstrating that each activity undertaken meets one of
the National Objectives of the CDBG program;
iii. Records required to determine the eligibility of activities;
iv. Records required to document the acquisition, improvement, use or
disposition of real property acquired or improved with CDBG
assistance;
V. Records documenting compliance with the fair housing and equal
opportunity components of the CDBG program;
vi. Financial records as required by 24 CFR 570.502, and 24 CFR
84.21-28; and
vii. Other records necessary to document compliance with Subpart K
of 24 CFR Part 570.
2. Records Retention
The City shall retain all financial records, supporting documents, statistical records, and
all other records pertinent to the Agreement for a period of five (5) years. The retention
period begins on the date of the submission of the County's annual performance and
evaluation report to HUD in which the activities assisted under the Agreement are
reported on for the final time. Notwithstanding the above, if there is litigation, claims,
EXHIBIT A
Page 5 of 6
4.LQ036
audits, negotiations or other actions that involve any of the records cited and that have
started before the expiration of the five-year period, then such records must be retained
until completion of the actions and resolution of all issues, or the expiration of the five-
year period, whichever occurs later.
3. Client Data
The City shall maintain client data demonstrating client eligibility for services provided.
Such data shall include, but not be limited to, client name, address, income level or other
basis for determining eligibility, and description of service provided. Such information
shall be made available to County monitors or their designees for review upon request.
4. Disclosure
The City understands that client information collected under this contract is private and
the use or disclosure of such information, when not directly connected with the
administration of the County's or City's responsibilities with respect to services provided
under this contract, is prohibited by applicable federal and State law unless written
consent is obtained from such person receiving service and, in the case of a minor, that of
a responsible parent/guardian.
5. Close-outs
The City's obligation to the County shall not end until all close-out requirements are
completed. Activities during this close-out period shall include, but are not limited to:
making final payments, disposing of program assets (including the return of all unused
materials, equipment, unspent cash advances, program income balances, and accounts
receivable to the County), and determining the custodianship of records. Not
withstanding the foregoing, the terms of this Agreement shall remain in effect during any
period that the City has control over CDBG funds, including program income.
6. Audits & Insnections
All City records with respect to any matters covered by this Agreement shall be made
available to the County, HUD, and the Comptroller General of the United States or any of
their authorized representatives, at any time during normal business hours, as often as
deemed necessary, to audit, examine, and make excerpts or transcripts of all relevant
data. Any deficiencies noted in audit reports must be fully cleared by the City within 30
days after receipt by the City. Failure of the City to comply with the above audit
requirements will constitute a violation of this contract and may result in the withholding
of future payments. The City hereby agrees to have an annual agency audit conducted in
accordance with current County policy concerning subrecipient audits and OMB Circular
A-133.
nnr
EXHIBIT A
Page 6 of 6
4.LQ036
IV. PROJECT IMPLEMENTATION AND SCHEDULE
Unless pre -approved by County, City will perform and complete the activities described
in Section II in conformance with the schedule of tasks and milestones listed below:
Tasks / Milestone Start Date Completion Date
Implement Project Activities
Execute Supplemental Agreement
& Notice to Incur Cost
Submit Quarterly Performance
Reports to County
County Monitoring of City
Program/Performance
City Submits Reimbursement
Requests
Monthly Submittal ❑
Other Schedule
CDBG-funded Project Complete
Upon Notification from EDA
November 2006
October 15, 2006
November 2006
April 30, 2008
To be determined by Program Manager
TBD
V. SPECIAL CONDITIONS /PERFORMANCE REQUIREMENTS
May 15.2008
EXHIBIT B
Page I of 6
4.LQ037
SUPPLEMENTAL AGREEMENT
SCOPE OF WORK — PUBLIC SERVICE
I. GENERAL INFORMATION
CITYNAME: City of La Quinta
ADDRESS: PO Box 1504
La Quinta,CA 92247
CITY PROGRAM CONTACTS: Fred Baker, Community Development
SUBRECIPIENTNAME: Boys & Girls Club of Coachella Valley -
La Quinta Unit
ADDRESS: 49 995 Park Avenue La Quinta CA 92253
PROGRAM CONTACT: Jim Ducatte, (760) 836-1160
PHONE: (760) 777-7065 FAX:
E-MAIL:
PROJECT NAME: Membership Fees Waiver/Reduction Program, 4.LQ037
PROJECT LOCATION: 49-995 Park Ave., La Quinta, CA 92253
LEVEL OF ENVIRONMENTAL CLEARANCE: EXEMPT [24 CFR 58.34 (a)(4)]
CDBG ELIGIBILITY CODE: 24 CFR 570.201(e) Public Services
PROJECT FUNDING SUMMARY:
1ST District $0 4s' District $0
2nd District $0 5 h District $0
3rdDistrict $0 City Funding $28,637
Project to be administered by County (EDA) on behalf of CITY: YES ❑ NO IT
II. SCOPE OF SERVICE
A. Activities
City will be responsible for administering a 2006-2007 Community Development Block Grant
for the Membership Fee Waiver/Reduction Program in a manner satisfactory to the County of
Riverside and consistent with any standards required as a condition of providing these fupds. ,
Such program will include the following activities eligible under the Community Development
Block Grant program:
EXHIBIT B
Page 2 of 6
4.LQ037
Activity #1 Sponsor will utilize CDBG funds to provide financial assistance to families that
are low/ mod income to lower the cost for their child to attend and participate in
Boys and Girls Club events and facilities.
B. National Objective
All activities funded with CDBG funds must comply with one of more of the CDBG program's
National Objective Criteria as required under 24 CFR 570.200(a)(2). CITY certifies that the
activity (ies) carried out under this Agreement will meet the following National Objective:
National Objective Criteria: Low Mod Limited Clinetele Income Certification
CFR Reference: 570.208 (a)(2)(i)(B)
C. Levels of Accomplishment — Goals and Performance Measures
The City agrees to provide the following levels of program services:
Activity Units Total Total
per Month Units/Year Unduplicated Persons
Activity #1 75 75
Unit of Service is defined as: Number of Children enrolled in the Boys and Girls Club program
using the Fee waiver.
CPD OUTCOME PERFORMANCE MEASUREMENT
Objectives (select one): O Creating Suitable Living Environments
❑ Providing Decent Affordable Housing
❑ Creating Economic Opportunities
Outcome (select one): ❑ Availability/Accessibility
x❑Affordability
❑ Sustainability (promoting livable or viable communities)
D. City Capacity
By executing this Supplemental Agreement, the City certifies that it and its subrecipients have the
appropriate number of trained and knowledgeable staff, adequate facilities, proper equipment,
required licensing and permitting, and sufficient amount of financial resources necessary to
implement and carry out the activities funded with CDBG funds.
City will immediately notify County of any significant changes in organizational management,
assigned staff, change in facilities, loss or change in matching funds, or any other event that could
potentially impact City's performance under this Agreement.
Any changes in the above items are subject to the prior approval of the County. a
EXHIBIT B
Page 3 of 6
4.LQ037
E. Performance Monitoring
The County of Riverside will monitor the performance of the City and its subrecipients against
goals and performance standards as stated above. Substandard performance as determined by the
County will constitute noncompliance with this Agreement. If action to correct such substandard
performance is not taken by the City within a reasonable period of time after being notified by
the County, contract suspension or termination procedures will be initiated.
F. Program Budget
It is expressly agreed and understood that the total amount to be paid by the County under this
Agreement shall not exceed $28,637. Drawdowns for the payment of eligible expenses shall be
made against the line item budgets specified in this Section and in accordance with performance.
Payments may be contingent upon certification of the Subrecipient's financial management
system in accordance with the standards specified in 24 CFR 84.21.
The County may require a more detailed budget breakdown than the one contained herein, and
the City shall provide such supplementary budget information in a timely fashion in the form and
content prescribed by the County. Any amendments to the budget must be approved in writing
by both the County and City.
Line Item Amount:
Direct Program Expenses
Salaries $
Fringe
Office Space (Program only)
Utilities
Communications
Reproduction/Printing
Supplies and Materials
Mileage
Equipment (Program Only)
Audit
Transportation
Other (Fee Waivers) 28,637
Total Direct Program Costs
Indirect Costs (Specify)*
Total Indirect Costs
TOTAL CDBG BUDGET
All indirect costs must be pre -approved by the County. City must submit an
Indirect Cost Allocation Plan to County, in a form specified by County,
demonstrating the appropriate share of general and administrative costs.
EXHIBIT B
Page 4 of 6
4.LQ037
III. ADMINISTRATIVE REQUIREMENTS
A. Accounting Standards
The City agrees to comply with 24 CFR 84 or 85 as applicable and agrees to adhere to the
accounting principles and procedures required therein, utilize adequate internal controls,
and maintain necessary source documentation for all costs incurred.
B. Cost Principles
The City shall administer its program in conformance with OMB Circulars A-122, "Cost
Principles for Non -Profit Organizations," A-21, "Cost Principles for Educational
Institutions," or OMB Circular A-87, "Cost Principles for State, Local and Indian Tribal
Governments as applicable. These principles shall be applied for all costs incurred
whether charged on a direct or indirect basis
C. Documentation and Record Keeping
I. Records to be Maintained
The City and its subrecipients will maintain all records required by the Federal
regulations specified in 24 CFR 570.506, that are pertinent to the activities to be funded
under this Agreement. Such records shall include but not be limited to:
i Records providing a full description of each activity undertaken;
ii. Records demonstrating that each activity undertaken meets one of
the National Objectives of the CDBG program;
Records required to determine the eligibility of activities;
iv. Records required to document the acquisition, improvement, use or
disposition of real property acquired or improved with CDBG
assistance;
V. Records documenting compliance with the fair housing and equal
opportunity components of the CDBG program;
vi. Financial records as required by 24 CFR 570.502, and 24 CFR
84.21-28; and
vii. Other records necessary to document compliance with Subpart K
of 24 CFR Part 570.
2. Records Retention
The City shall retain all financial records, supporting documents, statistical records, and
all other records pertinent to the Agreement for a period of five (5) years. The retentigiz
period begins on the date of the submission of the County's annual performance and
evaluation report to HUD in which the activities assisted under the Agreement are
reported on for the final time. Notwithstanding the above, if there is litigation, claims,
audits, negotiations or other actions that involve any of the records cited and that have
started before the expiration of the five-year period, then such records must be retained
until completion of the actions and resolution of all issues, or the expiration of the five-
year period, whichever occurs later.
EXHIBIT B
Page 5 of 6
4.LQ037
Client Data
The City shall maintain client data demonstrating client eligibility for services provided.
Such data shall include, but not be limited to, client name, address, income level or other
basis for determining eligibility, and description of service provided. Such information
shall be made available to County monitors or their designees for review upon request.
4. Disclosure
The City understands that client information collected under this contract is private and
the use or disclosure of such information, when not directly connected with the
administration of the County's or City's responsibilities with respect to services provided
under this contract, is prohibited by applicable federal and State law unless written
consent is obtained from such person receiving service and, in the case of a minor, that of
a responsible parent/guardian.
5. Close-outs
The City's obligation to the County shall not end until all close-out requirements are
completed. Activities during this close-out period shall include, but are not limited to:
making final payments, disposing of program assets (including the return of all unused
materials, equipment, unspent cash advances, program income balances, and accounts
receivable to the County), and determining the custodianship of records. Not
withstanding the foregoing, the terms of this Agreement shall remain in effect during any
period that the City has control over CDBG funds, including program income.
6. Audits & Insnections
All City records with respect to any matters covered by this Agreement shall be made
available to the County, HUD, and the Comptroller General of the United States or any of
their authorized representatives, at any time during normal business hours, as often as
deemed necessary, to audit, examine, and make excerpts or transcripts of all relevant
data. Any deficiencies noted in audit reports must be fully cleared by the City within 30
days after receipt by the City. Failure of the City to comply with the above audit
requirements will constitute a violation of this contract and may result in the withholding
of future payments. The City hereby agrees to have an annual agency audit conducted in
accordance with current County policy concerning subrecipient audits and OMB Circular
A-133.
EXHIBIT B
Page 6 of 6
4.LQ037
IV. PROJECT IMPLEMENTATION AND SCHEDULE
Unless pre -approved by County, CITY will perform and complete the activities described in
Section II in conformance with the schedule of tasks and milestones listed below:
Tasks / Milestone Start Date Completion Date
Execute Subrecipient Agreements July 1, 2006 ---
(EDA must approve)
Implement Program Activities July 1, 2006 TBD
Execute Supplemental Agreement November 2006 November 2006
& Notice to Incur Cost
City Submit Quarterly October 15, 2006 July 31, 2007
Performance Reports to County
County Monitoring of City Ongoing Ongoing
Performance
City submit Monthly September 2006 July 2007
Direct Benefit Reports
City Submits Reimbursement
Requests
Monthly Submittal ® September 2006 May 15, 2007
Other Schedule ❑
CDBG Program Services Complete
V. SPECIAL CONDITIONS /PERFORMANCE REQUIREMENTS
June 30, 2007
Sponsor must provide monthly requests for reimbursement and submit direct benefit reports.
a `u"dQ
0``
cFM OF T1'�
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Approval of a Housing Relocation Plan
for 46-150 Dune Palms Road and 46-130 Dune
Palms Road
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
/9
Approve the Relocation Plan for 46-150 Dune Palms Road and 46-130 Dune Palms
Road and authorize the City Manager to begin the 30-day review period.
FISCAL IMPACT:
Implementing the Relocation Plan will result in the expenditure of up to $150,000
for resident relocation costs. Funds are available from the Unreserved Fund
Balances in Low- and Moderate -Income Fund Project Area 2.
BACKGROUND AND OVERVIEW:
In September 2005, the Agency Board directed staff to contact property owners in
the Dune Palms Road corridor (north of the Whitewater River and south of
Westward Ho Drive) to ascertain their interest in selling their property to the
Agency Board. The Agency Board would like to assemble six parcels located along
the Dune Palms Road corridor so that the properties may be assembled to
accommodate an affordable housing development. Four of the property owners
contacted by staff initially expressed interest in selling their property. To date,
staff has successfully negotiated purchase agreements with two owner -occupied
single-family residences. The Relocation Plan for the Dune Palms Road Project
approved by the City Council on March 21, 2006, was used to successfully
relocate the two owner -occupied single-family residents. Attachment 1 is a map
illustrating the properties staff has acquired to date and properties that need to be
acquired'.
The County of Riverside Assessor's Office changed parcel map book number 649-04 to 600-03
beginning in fiscal year,2006-07 to accommodate for an increase of parcel numbers in that area.
The owners of Assessor Parcel Number 600-030-002 and 600-030-003 have also
expressed interest in relocating. Prior to considering property purchase agreements
with these parties, the California Community Redevelopment Law and the California
Relocation and Real Property Acquisition Guidelines require the Agency to prepare
and submit a Relocation Plan for City Council review and approval. Attachment 2
is the Relocation Plan for 46-130 and 46-150 Dune Palms Road for Council
consideration.
The Relocation Plan presents:
o Household demographic characteristics and relocation needs based on
personal interview survey data
o An assessment of the availability of comparable replacement housing within
the City of La Quinta and the surrounding community
o The steps and procedures the Agency will follow to ensure a fair and
equitable relocation program
o An estimate of the potential relocation costs.
The data presented in the Relocation Plan was compiled by interviews conducted in
October and November of 2006. When interviewed, the household at 46-130
expressed a desire to relocate along California State Highway 74 south of Palm
Desert. The owner -occupied household is a very low—income family, consisting of
three adults and one child, and is English speaking. The household at 46-150 is
occupied by owner occupants, consisting of two adults and one child. The
household is a low-income family and is English speaking. When interviewed, the
household indicated a desire to relocate to another La Quinta property within the
Amelia Earhart School District.
The Relocation Plan also details the relocation assistance program and the scope of
the relocation benefits. The relocation assistance program generally entails:
o Informing residents of their relocation rights and the scope of the relocation
benefits;
o Determining each household's specific housing needs;
o Identifying and updating information on replacement housing opportunities;
e Identifying Federal, State and other governmental agency housing program
assistance;
o Assisting each person with completing relocation assistance applications;
o Assisting each displace with finding replacement housing opportunities;
o Providing relocation payments in accordance with all State standards;
o Establishing an appeal procedure with respect to disputes over relocation
benefits.
J'
The scope of relocation benefits needed for the household entails:
Providing moving expense payments based upon the actual cost of using a
professional mover or based upon a fixed payment schedule if residents elect
to move themselves;
A home purchase price differential payment based upon the difference
between the appraised value of the resident's home and the cost to purchase
a comparable replacement dwelling;
Incidental expense payments including legal, closing cost title and other
costs related to purchasing a comparable replacement dwelling.
The total relocation costs are estimated to range from $120,000 to $150,000.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Approve the Relocation Plan for 46-130 and 46-150 Dune Palms Road and
authorize the City Manager begin 30 day review period; or
2. Do not approve the Relocation Plan for 46-130 and 46-150 Dune Palms
Road; or
3. Provide staff with alternative direction.
Respectfully submitted,
-- fiOWW4"�!�
Doug as JVEvans
Community Development Director
Approved for submission,
Thomas P. Genovese, City Manager
Attachments: 1 . Dune Palms Road Corridor Acquisition Status Map
2. Relocation Plan
ATTACHMEW
Dune Palms Road Corridor Acquisition Status Map
Acquired Parcels
Acquisition & Relocation Initiated
® Presently Not Sought
Previously Acquired for Well Site
= Rejected Offers
J
ATTACHMEN
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA QUINTA REDEVELOPMENT AGENCY
RSG
INTELLIGENT COMMUNITY DEVELOPMEN
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA QUINTA REDEVELOPMENT AGENCY
CONTENTS OF THIS RELOCATION PLAN
i_ INTRODUCTION................................................................................................1
A.
ASSESSMENT OF NEEDS................................................................................1
B.
REPLACEMENT HOUSING RESOURCES........................................................2
C.
CONCURRENT RESIDENTIAL DISPLACEMENT.............................................3
D.
TEMPORARY HOUSING....................................................................................3
E.
PROGRAM ASSURANCES AND STANDARDS................................................3
F.
RELOCATION ASSISTANCE PROGRAM......................................................... 4
G.
CITIZEN PARTICIPATION/PLAN REVIEW........................................................4
H.
RELOCATION BENEFIT CATEGORIES............................................................4
I.
PAYMENT OF RELOCATION BENEFITS..........................................................6
J. APPEALS POLICY.............................................................................................6
K. PROJECTED DATES OF DISPLACEMENT....................................................... 7
L. ESTIMATED RELOCATION COSTS.................................................................. 7
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA QUINTA REDEVELOPMENT AGENCY
I. INTRODUCTION
The La Quinta Redevelopment Agency ("Agency') established Project Area No. 2 in May,
1989 to provide a mechanism to remove impediments to commercial and residential
development, to address public infrastructure and facility deficiencies, and to increase and
improve the community's supply of affordable housing. The properties along Dune Palms
Road ("Project Site") are within Project Area No. 2 and are being considered by the Agency
as a site for the development of affordable housing. This action may result in the purchase
and development of properties within the Project Site and as a result, two households will
have to be permanently displaced. The acquisition of the Project Site will be pursued
pursuant to negotiated acquisition by the property owners. The location of the housing,
which is the subject of this plan, is generally described as being located near the southeast
corner of Dune Palms Road and Westward Ho Drive and is more particularly described as
Assessor Parcel Number 600-030-002 and 600-030-003. The location is displayed on
Attachment I and 1b.
This Relocation Plan ("Plan") describes the affected buildings and occupants and discusses
the Relocation Assistance that will be made available to the occupants. Rosenow Spevacek
Group, Inc. ("RSG") has prepared and will administer the Plan under the direction of the
Agency and will act as the relocation consultant for this Plan. This Plan provides the results
of a needs assessment survey, a housing resource study, and details of the Agency's
proposed relocation assistance program. Furthermore, this Plan sets forth policies and
procedures necessary to conform with statutes and regulations established by the California
Relocation Assistance Law, California Government Code section 7260 et seq. ("CRAL") and
the California Relocation Assistance and Real Property Acquisition Guidelines, Title 25,
California Code of Regulations, chapter 6, section 6000 et seq. ("Guidelines").
No displacement activities will take place prior to the required reviews and approval of this
Plan.
A. ASSESSMENT OF NEEDS
To obtain information for the preparation of this Plan, personal interviews were conducted
with the households living in the Project Site. The inquiries made of the households
concerned household size and composition, income, length and type of occupancy,
ethnicity, home language, disabilities/health problems, and replacement housing
preferences. The interviews were conducted on -site during October and November of 2006.
The descriptive data in this Plan is based solely on the responses provided by the
households. No attempt was made to qualify income or other information provided by
residents.
occupancy/Overcrowding
There are two households encompassed in this Plan. One household is composed of three
residents residing in a two -bedroom home. The second household is composed of four
residents residing in a three -bedroom home.
))RSG
Page 1
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA QUINTA REDEVELOPMENT AGENCY
Income
Income information was provided by the households. According to income standards for the
County of Riverside (Attachment 2), adjusted for family size as published by the United
States Department of Housing and Urban Development ("HUD"), one household is
categorized as very low income and the other as low income.
Ethnicity/Language
The Project Site households identified themselves as Caucasian (6) and Hispanic (1). All
members of the households reported the primary language as English.
Senior/Handicapped Households
There are no seniors (62 years or older) and no handicapped individuals. None of the
households indicated that they require any special accommodations or have any specific
facility needs.
Table 1 shows some of the households' characteristics and needs.
Table 1: Housing Description
Occu nc
Houshold Size
Room Count
Ethnii
Lanqua a
Seniors
Income Levels
Owners Tenant
Adults Children
Bedrooms
Bath
Total
Caucasian
Hispanic
En lish S apish
Its n/a
3
3
2
7
4
0
4 0
Na
veryLow Income
Yes n/a
2 1
2
1
6
2
1
3 0
Na
I Low Income
Sou,ce Survey of propertyowners
The Project Site
The Project Site is situated on the southeast corner of Dune Palms Road and Westward Ho
Drive. La Quinta High School is directly in front of the Project Site and Amelia Earhart
Elementary School, and John Glen Middle School are within short driving distance. The
Project Site is located within close proximity to a community park, a Fire Station, shopping
centers, and grocery stores.
Preferred Relocation Areas and Location Needs
One Project Site household expressed a desire to remain in La Quinta within the Amelia
Earhart School District, and the other a desire to leave La Quinta and relocate along
California State Highway 74 south of Palm Desert. Both households are only interested in
home ownership. No other additional or special relocation needs (i.e. proximity to public
transportation, employment, medical facilities, public/social services and agencies,
recreational services, parks, community centers, and shopping) were expressed by the
households.
A. REPLACEMENT HOUSING RESOURCES
A resource survey was conducted in October and November of 2006 to identify available
comparable, decent, safe, and sanitary units available in close proximity to the Project Site.
One two -bedroom unit and one three -bedroom unit are required to adequately relocate the
Project Site households. Replacement property was identified in consultation with a local
realtor, through internet research, and MLS searches.
07RSG
Page 2
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA QUINTA REDEVELOPMENT AGENCY
The survey focused on confirming the availability of comparable, decent, safe, and sanitary
units, which contain the required minimum number of bedrooms, an area of adequate size
for the households, and an area comparable with respect to the number of rooms and
habitable living space. Attachment 3a provides a list of comparables (as defined in
Guideline section 6008) in La Quinta based on the results of the homeowner surveys. The
replacement houses have a similar lot size and living area to the homeowner's original
property.
B. CONCURRENT RESIDENTIAL DISPLACEMENT
There are no other known projects currently underway that will compete for similar
replacement housing in the City of La Quinta.
C. TEMPORARY HOUSING
There is no anticipated need for temporary housing because relocation will not occur until
the Agency has entered binding agreements to acquire the property from the owners and it
is expected that the owners shall acquire replacement housing prior to moving from the
Project Site. Should such a need arise, the Agency will respond appropriately and in
accordance with all applicable laws and requirements.
D. PROGRAM ASSURANCES AND STANDARDS
Adequate funds are and will be made available to accommodate the payment of all required
relocation benefits. Services will be provided to ensure that displacement does not result in
different or separate treatment of households based on race, nationality, color, religion,
national origin, sex, marital status, familial status, disability or any other basis protected by
the federal Fair Housing Amendments Act, the Americans with Disabilities Act, Title VI of the
Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, the California Fair
Employment & Housing Act, and the Unruh Act, as well as any other arbitrary or unlawful
discrimination.
No one will be displaced without 90 days notice and unless "comparable" replacement
housing can be located and is available. "Comparable" housing includes standards such as:
decent, safe, and sanitary (as defined in § 6008(d) of the Guidelines); comparable as to the
number of bedrooms, living space, and type and quality of construction of the acquired unit
but not lesser in rooms or living space than necessary to accommodate the displaced
households; in an area that does not have unreasonable environmental conditions; not
generally less desirable than the acquired unit with respect to location to schools,
employment, health and medical facilities, and other public and commercial facilities and
services; and within the financial means of the displaced households as defined in
section 6008, subdivision (c)(5) of the Guidelines. The relocation program to be
implemented by the Agency conforms to the standards and provisions set forth in
Government Code section 7260 et seq., the Guidelines, California Health and Safety Code
section 33410 et seq., if applicable, and all other applicable regulations and requirements.
*JRSG
Page 3
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA OUINTA REDEVELOPMENT AGENCY
E. RELOCATION ASSISTANCE PROGRAM
Staff is available to assist any displaced households with questions about relocation and/or
assistance in relocating. Jon McMillen, the Acquisition Coordinator, can be contacted at
(760) 212-2322 from 8:30 am to 5:00 pm, Monday through Friday. A comprehensive
relocation assistance program, with technical and advisory assistance, will be provided to
the households being displaced. Close contact will be maintained with the households.
Specific activities will include:
Distribution of an informational brochure. (see Attachment 4)
2. Timely referrals to at least three comparable replacement units as defined above and,
if necessary, transportation will be provided to inspect potential replacement units.
3. Assistance with completion and filing of relocation claims, loan applications, and
appeals forms, if necessary.
F. CITIZEN PARTICIPATION/PLAN REVIEW
This Plan will be provided to the households and will be made available to the public for the
mandatory thirty (30) day review period. Comments to this Plan will be included as a Plan
addendum prior to submission for approval before the Agency. A copy of the approved
Plan will be forwarded to the California Department of Housing and Community
Development ("HCD").
G. RELOCATION BENEFIT CATEGORIES
Relocation benefits will be provided in accordance with the CRAL, the Guidelines, and all
other applicable regulations and requirements. Benefits will be paid upon submission of
required claim forms and documentation in accordance with approved procedures. The
Agency will provide appropriate benefits for the displaced households as required by law.
Residential Moving Expense Payments
The subject households will be eligible to receive a payment for moving expenses.
Payments will be made based upon either a fixed room count schedule or an invoice for
actual reasonable moving expenses from a licensed professional mover. The method of
moving expense payments may be selected by the households.
1)p RSG
Fixed Payment - A fixed payment for moving expenses based on the number of rooms
containing furniture or other personal property to be moved. The fixed moving payment
will be based upon the most recent Federal Highway Administration schedules
maintained by the California Department of Transportation. (See Attachment 5)
Ima
Actual Reasonable Movino Expense Payments - The displaced households may elect to
have a licensed, professional mover perform the move; if so, the Agency will pay for the
�r
Page 4
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA OUINTA REDEVELOPMENT AGENCY
actual cost of the move up to 50 miles and all reasonable charges for packing,
unpacking, insurance, and utility connection charges. The payment will be made directly
to the mover or as reimbursement to the displaced households.
Assistance to Homeowners
It is anticipated that two homeowner households will be displaced.
Displaced homeowners will be eligible for relocation replacement housing payments if the
following conditions are met:
a. The households has owned and occupied their unit for not less than 180 days
prior to the "Initiation of Negotiations." and
b. The households purchases and occupies a replacement unit within one year
from: (i) the date that the households receives the final payment from the Agency
for all the costs of the acquired unit - or- (ii) the date that the households vacates
the acquired unit, whichever is later.
Displaced homeowner households will receive assistance in locating a "comparable
replacement" unit and will be eligible for the following benefits:
&�RSG
1. Purchase Price Differential:
The displaced households will be entitled to receive an amount equal to the difference
between the price paid for the acquired unit and the amount required to purchase a
"comparable replacement" unit. The Agency will utilize a Comparative Method (as
explained in section 6102 of the Guidelines) to calculate any price differential.
Comparative Method: On a case -by -case basis, the Agency will determine the
price of a "comparable replacement" unit, which is most representative of the
acquired unit, by selecting and considering the listing price of at least three
(whenever possible) "comparable replacement" units. (25 Cal. Code Regs. Sec.
6102 (c)(1)(A)(1).)
The Price Differential is the difference between the acquisition cost of the displacement
dwelling and the lesser of the following two amounts:
• The price the displaces actually paid for the replacement dwelling; or
The price of a comparable dwelling as determined by the Agency.
2. Other Payments:
Moreover, displaced homeowners will receive the following assistance:
(a) Payments to cover the cost between the difference of the household's current
debt or mortgage service and any increase in debt or mortgage costs necessary
to acquire a "comparable replacement" housing unit; and
Page 5
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA QUINTA REDEVELOPMENT AGENCY
(b) Incidental and reasonable one-time costs for acquiring a replacement unit,
such as escrow costs, and recording and credit reporting fees.
3. Rental Assistance Option:
If a displaced homeowner households, which has purchased and occupied its
current unit at least 180 days prior to the "initiation of negotiations," desires to rent
instead of purchase a replacement unit, the households is eligible for all the
benefits and assistance that is available to tenant households. However, such
replacement housing payments may not exceed the payments the households
would have been entitled to if it had elected to purchase a replacement unit.
4. Last Resort Housing Payments:
There is currently sufficient comparable replacement housing for homeowner
households and the Agency does not anticipate a lack of sufficient comparable
replacement housing in the near future. However, should such a situation arise, the
Agency will respond appropriately and in conformance with all applicable laws and
requirements.
H. PAYMENT OF RELOCATION BENEFITS
Relocation benefit payments will be made expeditiously. Claims and supporting
documentation for relocation benefits must be filed with the Acquisition Coordinator within
eighteen (18) months from: (i) the date the claimant moves from the acquired property; -or-
(ii) the date on which final payment for the acquisition of real property is made, whichever
is later. The Acquisition Coordinator will then submit the relocation benefit claim form to
the City Finance Department for review and payment, if appropriate. Failure to submit
claims within the 18 month period will prevent the Agency from paying such claims.
No households will be displaced until "comparable" housing is located as defined above
and in section 6008, subdivisions (c) and (d) of the Guidelines. Relocation staff will inspect
any replacement units to which referrals are made to verify that they meet all the standards
of decent, safe, and sanitary as defined in section 6008, subdivision (d) of the Guidelines.
However, no households will be denied benefits if it chooses to move to a replacement unit
which does not meet the standards of decent, safe, and sanitary housing.
1. APPEALS POLICY
The appeals policy will follow the standards described in section 6150 et seq. of the
Guidelines as supplemented by the Agency's approved Grievance Procedures (See
Attachment 6). Briefly stated, the displaced households will have the right to ask for a
review when there is a complaint regarding any of its rights to relocation and relocation
assistance, such as a determination as to eligibility, the amount of payment, or the failure to
provide a comparable replacement housing referral. The request for review must be made
within eighteen (18) months from: (i) the date the claimant moves from the acquired
property; -or- (ii) the date on which final payment for the acquisition of real property is made,
whichever is later. Failure to make a timely request for review will result in your request
being denied. ,
j)RSG
Page 6
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA QUINTA REDEVELOPMENT AGENCY
J. PROJECTED DATES OF DISPLACEMENT
Households will receive a 90 day notice to vacate before they are required to move. These
notices are expected to be issued on or about April 1, 2007.
Relocation is expected to be completed on or about July 1, 2007.
K. ESTIMATED RELOCATION COSTS
The Agency anticipates using the following funds for the Project:
Project Area No. 2, Low and Moderate Housing Funds
The following estimates are for budgeting purposes only. These figures should not be
interpreted as firm, "not to exceed" or actual entitlement costs. These figures are based on
the data obtained through occupant interviews, replacement site availability, market rate
research, and the judgment of the Agency staff. They do not include payments to
consultants or to contractors.
Any and all required financial assistance will be provided. The budget estimate is:
Table 2: Project Cost Estimate
Low Estimate High Estimate
$120,000 $150,000
R5G
Page 7
46130 & 46150 DUNE PALMS ROAD
RELOCATION PLAN
LA QUlNTA REDEVELOPMENT AGENCY
INDEX OF TABLES & ATTACHMENTS
TABLES
Table 1: Housing Description
Table 2: Estimated Relocation Costs
ATTACHMENTS
Attachment la: Regional Site Map
Attachment 1b: Project Site Map
Attachment 2: HUD Income Category Limits for Riverside County
Attachment 3: Housing Resource Survey — Two and Three Bedroom
Comparables
Attachment 4: Relocation Assistance To Displaced Homeowner Occupants
(Brochure)
Attachment 5: Fixed Payment Moving Schedule
Attachment 6: Grievance Process
R5G
Page 8
Attachment 1a: Regional Site Map
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Attachment 3: Housing Resource Survey
Two and Three Bedroom Comparables
Address
Type
Sales Price
Bedroom/Baths
79935 Independence Way, La Quinta
Sin le Famil
$364,900
3/2
45430 Sunn brook Lane, La Quinta
Single Family
$379,000
3/2
79956 Independence Way, La Quinta
Sin le Family
$395,500
3/2
Note Based on the assessed value of subject property, listings of comparable sales within the target price
range were comprised of three -bedrooms. Available two -bedroom dwelling did not meet square footage and
sales price criteria
))RSGe " . .1
Page 12
Attachment 4
City of La Quinta Redevelopment Agency
RELOCATION ASSISTANCE TO DISPLACED HOMEOWNER OCCUPANTS
Introduction
This booklet describes the relocation payments and other relocation assistance
provided under the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended ("URA") to most homeowners whose home is
acquired by the City of La Quinta Redevelopment Agency ("Agency'). To be eligible for
the assistance described in this booklet, you must have owned and occupied your home
for at least 180 days before the Agency offered to buy it.
If you are notified that your home will be acquired and you will be displaced, it is
important that you do not move before you learn what you must do to receive the
relocation payments and other assistance to which you are entitled.
This booklet may not answer all of your questions. If you have more questions, contact
the Agency. (Check the back of this booklet for the name of the person to contact at the
Agency.) Ask your questions before you move. Afterwards, it may be too late.
Summary of Relocation Assistance
As an eligible displaced homeowner occupant, you will be offered the following advisory
and financial assistance:
Advisory Services. This includes referrals to comparable replacement homes, the
inspection of replacement housing to ensure that it meets established standards, help in
preparing claim forms for relocation payments and other assistance to minimize the
impact of the move.
Payment for Moving Expenses. You may choose either a:
❖ Payment for Your Actual Reasonable Moving and Related Expenses, or
❖ A Fixed Moving Payment, or
❖ A combination of both, based on circumstances.
Replacement Housing Payment. To enable you to buy or, if you prefer, rent a
comparable replacement home, you may choose either:
❖ Purchase Assistance, or
*)RSG
Page 13
❖ Rental Assistance.
If you disagree with the Agency's decision as to the relocation assistance for which you
are eligible, you may appeal that decision as provided by the Agency's Grievance
Procedures and state HCD Grievance Guidelines.
General Questions
Will I Be Paid For My Property Before I Have To Move?
If you reach an agreement to sell your property to the Agency, you will not be required
to move before you receive the agreed purchase price. If the property is acquired
through an eminent domain proceeding, you cannot be required to move before the
estimated fair market value of the property has been deposited with the court. (You
should be able to withdraw this amount immediately, less any amounts necessary to
pay off any mortgage or other liens on the property and to resolve any special
ownership problems. Withdrawal of your share of the money will not affect your right to
seek additional compensation for your property.)
Will I Have To Pay Rent To The Agency Before I Move?
You may be required to pay a fair rent to the Agency for the period between the
acquisition of your property and the date that you move. The rent will not exceed that
charged for the use of comparable property.
How Will I Know I Am Eligible For Relocation Assistance?
You should receive a written notice explaining your eligibility for relocation assistance.
You will become eligible for relocation assistance on the date you receive the Agency's
written offer of "just compensation" to purchase your home. You should not move
before receiving that purchase offer. If you do, you may not receive relocation
assistance.
How Will The Agency Know How Much Help I Need?
You will be contacted at an early date and personally interviewed by a representative of
the Agency to determine your relocation needs and preferences for replacement
housing and advisory services. The interviewer will ask certain questions about you and
other members of your households. It is to your advantage to provide the information
so that the Agency can assist you in moving with a minimum of hardship. The
information you give will be kept in confidence.
How Soon Will I Have To Move?
9) RSG
Page 14
If possible, a mutually agreeable date for the move will be worked out. You will be given
enough time to make plans for moving. Unless there is a Ihealth or safety emergency,
you will not be required to move without at least 90 days advance written notice of (1) at
least one 'comparable replacement home" that is available to you and (2) the earliest
date by which you must move.
What Is A Comparable Replacement Home?
A comparable replacement home is:
• Decent, safe, and sanitary.
• Functionally equivalent to your present home.
• Actually available for you to buy.
• Affordable.
• Reasonably accessible to your place of employment.
• Generally as well located with respect to public and commercial facilities, such as
schools and shopping, as your present home.
• Not subject to unreasonable adverse environmental conditions.
• Available to all persons regardless of race, color, religion, sex, or national origin.
What is Decent, Safe, and Sanitary Housing?
Decent, safe, and sanitary housing is housing that:
Meets local housing and occupancy requirements.
Additionally, it is housing that:
• Is structurally sound, weather tight, and in good repair.
• Contains a safe, adequate electrical wiring system.
• Has adequate living space for the occupants.
• Has a kitchen with a sink, hot and cold running water, and connections for a stove
and refrigerator.
• Has a separate, complete bathroom with hot and cold running water and sewage
system.
• Has heating as required by climatic conditions.
• Has an unobstructed exit to safe, open space at ground) level.
• Is free of any barriers that would preclude your reasonable use of the unit, if you are
a person with a physical disability.
Will The Agency Help Me Find A Replacement Home?
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Page 15
Yes. You will be provided with referrals to comparable replacement housing. If
possible, you will be referred to at least three comparable replacement homes. The
maximum financial assistance for which you may qualify will be based on the cost of the
most representative comparable replacement home that is available to you. When the
Agency gives you its initial written purchase offer, it will typically inform you at that time,
or shortly thereafter, of your eligibility for relocation assistance, identifying the most
comparable replacement home and explain the maximum amount of relocation
assistance available to you.
Once the Agency representative has a clear understanding of your needs and
preferences, he or she will work with you to assure that you are given the best possible
choice of housing and offer you transportation to inspect these units.
If there is a mortgage on your present home, the Agency will refer you to lenders that
can provide mortgage financing for your new home. If the money paid for your old
home is applied to the purchase of your new home, there should not be any increase in
the number or amount of your monthly payments for mortgage interest and principal.
What If I Find My Own Replacement Housing?
You have every right to find your own replacement housing. However, before you buy
or rent, ask the Agency to inspect the unit to make sure that it is decent, safe, and
sanitary. If the housing unit is not decent, safe, and sanitary, you will not receive a
replacement housing payment.
What If I Encounter A Problem In Obtaining Housing Of My Choice?
If you encounter a problem in buying or renting housing of your choice, notify the
Agency immediately. The Agency will look into the matter and try to resolve it. You will
receive this help whether you were referred to the housing unit or found it yourself.
If you are unable to buy or rent a housing unit because of discriminatory practices on
the part of a real estate broker, rental agent, lender, or a property owner, the Agency
will help you file a formal housing discrimination complaint with the U.S. Department of
Housing and Urban Development or the appropriate State or local fair housing agency.
What Other Services Will I Receive?
In addition to help in obtaining a comparable replacement home, other assistance, as
necessary, will be provided in order to minimize the impact of your move. This
assistance may include referral to appropriate public and private agencies that provide
services concerning housing financing, employment, health, welfare, or legal assis-
tance. The range of services depends on the needs of the person being displaced.
You should ask the Agency representative to tell you about the specific services that will
be available to help you and your family.
6) RSG
Page 16
What Is a Payment For Actual Reasonable Moving And Related Expenses?
You are entitled to a relocation payment to cover the actual reasonable cost of your
move. If you choose a Payment For Actual Reasonable Moving And Related Expenses,
you may include in your claim the reasonable costs for:
Transportation for you and your family.
Packing, moving and unpacking your households goods.
Disconnecting and reconnecting households appliances and other personal property
(e.g., telephone and cable TV).
Storage of households goods, as may be necessary.
Insurance for the replacement value of your property during the move and necessary
storage.
The replacement value of property lost, stolen or damaged in the move (but not
through your neglect) if insurance is not reasonably available.
The Agency will explain all eligible moving costs, as well as those which are not eligible.
You must be able to account for any costs that you incur, so keep all your receipts.
Select your mover with care. The Agency can help you select a reliable and reputable
mover.
You may elect to pay your moving costs yourself and be repaid by the Agency or, if you
prefer, you may have the Agency pay the mover. In either case, let the Agency know
before you move.
What Is A Fixed Moving Payment?
If you choose a Fixed Moving Payment, you will receive a payment based on the
number of rooms of furniture you will be moving, as shown on the Fixed Residential
Moving Cost Schedule. The Agency has a copy of the schedule and will help you
decide whether choosing this payment is in your best interest.
If you do not have an unusually large amount of personal property to move and are
capable of moving yourself, this payment should be more advantageous to you. No
special documentation is required to support your claim. You need only move your
personal property and complete the appropriate claim form in order to receive your
payment.
I Want To Buy Another Home. How Much Purchase Assistance Will I Receive?
To help you buy a comparable replacement home, you will receive Purchase Assistance
equal to the sum of the following three costs:
Purchase Price Differential. If the cost of replacement housing exceeds the
amount the Agency pays for your present home, you may be eligible for a payment
to cover the difference. The Agency will inform you in writing of the location and
O) RSG
Page 17
cost of comparable replacement housing (and explain the basis of its determination)
so that you will know in advance how much assistance you may receive. That
information should help you decide how much you wish to pay for replacement
housing.
You are free to purchase any decent, safe and sanitary housing unit of your choice.
If the purchase price is less than the cost of a comparable replacement home, the
payment will be limited to the actual difference. If it exceeds the cost of a
comparable replacement home, the payment will be based on the cost of a
comparable home.
Examples: Let's say that the Agency pays $120,000 to purchase your home and
that a comparable replacement home costs $130,000.
❖ If you pay $129,000 for a replacement home, you would receive a $9,000
differential payment (the difference between the Agency's payment for the
acquisition of your home and the cost of your replacement home).
•S If you pay $132,000 for the replacement home, you would receive a $10,000
differential payment (the difference between the Agency's acquisition payment
and the cost of the comparable replacement home).
Mortgage Interest Differential Payment. This amount covers the "present value"
of the additional costs required to finance the purchase of a replacement home that
result if the interest rate you must pay for a new mortgage is higher than the interest
rate on the mortgage on your present home. It also covers other debt service costs.
The payment is based on the lesser of: the mortgage balance on your present home
or your new mortgage amount. To be eligible, the mortgage on your home must
have been a valid lien for at least 180 days before the Agency's initial written
purchase offer for your home.
You should provide the Agency with a copy of your mortgage(s) as soon as possible.
Based on that information and the prevailing terms and conditions of new mortgage
financing, the Agency will compute the approximate mortgage interest differential
payment for which you will be eligible, inform you of that amount and explain the
conditions on which it is based. The payment will be made available with the
purchase price differential in a timely manner to reduce the amount you must borrow
to buy your new home.
Incidental Expenses. This amount covers those extra costs typically charged when
one buys real property, such as the cost of preparing the deed and recording fees;
the cost of title insurance, revenue stamps and transfer taxes (not to exceed the cost
for comparable replacement housing); loan application, loan origination and
appraisal fees; the cost of a credit report; and for other costs such as certification of
structural soundness, home inspection and termite inspection. It does not cover
prepaid expenses, such as property taxes and insurance.
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Page 18
Remember, your total replacement housing payment is the sum of the purchase price
differential, mortgage interest differential, and incidental expenses.
To qualify for the payment, you must purchase and occupy a decent, safe and sanitary
replacement home within one year after the later of: the date you move or the date you
receive the final payment for the acquisition of your present home. However, the
Agency will extend this period for good cause.
If I Decide To Rent, Rather Than Buy, Another Home, How Much Assistance Will I
Receive?
If you decide to rent rather than buy a replacement home, you may be eligible to receive
Rental Assistance. The assistance covers a 42-month period and is computed in the
following manner.
The assistance needed for one month is based on the difference between the market
rent for your present home (including utilities), as determined by the agency, compared
to a comparable rental dwelling available on the market (including utilities). That
monthly need, if any, is multiplied by 42 to determine the total amount that you will
receive. This amount will be paid directly to you in monthly installments or other
periodic payments.
Examples: Let's say that the monthly "market rent" and average cost for utilities for
your present home are $250 and the monthly rent and estimated average utility costs
for a comparable replacement home are $350.
If you rent a replacement home for $360 per month, including estimated utility
charges, you will receive $4,200. That amount is 42 times $100 (the difference
between the market rent for your present home ($250) and the cost for a
comparable replacement home ($350)).
❖ If you rent a replacement home for $310, including estimated average monthly utility
charges, you will receive $2,520. That amount is 42 times $60 (the difference
between the "base monthly rent" for your present home ($250) and the actual cost of
your new home ($310)).
To qualify for rental assistance, you must rent and occupy a decent, safe, and sanitary
home within one year after the later of: the date you move or the date you receive the
final payment for the acquisition of your present home. However, the Agency will
extend this period for good cause. The amount of rental assistance cannot exceed the
computed purchase price differential.
Must I File A Claim To Obtain A Relocation Payment?
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Page 19
Yes. You must file a claim for each relocation payment. The Agency will provide you
with the required claim forms, help you to complete them, and explain the type of
documentation, if any, that you must submit in order to receive your relocation pay-
ments.
If you must pay any relocation expenses before you move (e.g., a deposit when you
contract for the purchase of a new home), discuss your financial needs with the Agency.
You will be able to obtain an advance payment to meet these costs. An advance
payment to purchase a home may be placed in "escrow." An advance payment for
moving expenses may be paid directly to the moving contractor to ensure that the move
will be completed on a timely basis.
You must file your claim within 18 months after the date you move or receive the final
payment for the acquisition of your present home. However, it is to your advantage to
file as soon as possible after you move. The sooner you submit your claim, the sooner
it can be processed and paid. If you are unable to file your claim within 18 months, ask
the Agency to extend this period; however the Agency is not obligated to extend this 18
month period..
Be careful not to confuse this 18-month period with the 12-month period within which
you must buy or rent and occupy a replacement dwelling in order to be eligible for a
replacement housing payment.
You will be paid promptly after you file an acceptable claim. If there is any question
regarding your right to a relocation payment or the amount of the payment, you will be
notified, in writing, of the problem and the action you may take to resolve the matter.
Do I Have To Pay Federal Income Taxes On My Relocation Payments?
No. Section 216 of the URA states that you need not report relocation payments as part
of your gross income for Federal tax purposes. For information on State or local income
taxes, you should check with the State or local income tax office in your area or with
your personal tax advisor.
What If I Don't Receive The Required Assistance. Can I Appeal?
If you disagree with the Agency's decision as to your right to relocation assistance or the
amount of a payment, or the adequacy of the housing to which you have been referred,
you may appeal the decision to the Agency. The appeal procedure is spelled out in the
HCD Grievance Procedure Guidelines and the Agency's Grievance Procedures. A copy
of the Agency's procedures has been attached to the Relocation Plan.
The Agency will inform you of its appeal procedures. Your appeal must be in writing.
However, if you need help, the Agency will assist you in preparing your appeal.
RSG
J
Page 20
If you are a low- or moderate -income person and are dissatisfied with the Agency's
determination on your appeal, you may have an additional right to request
administrative review of that decision (e.g., by HUD or the State). The Agency will
explain whether this option is available.
You can expect a fair decision on any appeal. However, if you are not satisfied with the
final administrative decision on your appeal, you may seek review of the matter by the
courts.
I Have More Questions. Who Will Answer Them?
If you have any questions after reading this booklet, contact the Agency and discuss
your concerns with an Agency representative.
Agency: City of La Quinta Redevelopment Agency
Address: 78-495 Calle Tampico
La Quinta, CA 92253
Office Hours: 8:30 AM through 5:00 PM; Monday through Friday
Telephone Number: (760) 212-2322
Person to Contact: Jon McMillen
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Page 21
J
Attachment 5: Fixed Moving Schedule
Schedule A
(Occupant Owns Furniture
Number of Rooms
Payments
1
$
625
2
$
800
3
$
1,000
4
$
1,175
5
$
1,425
6
$
1,650
7
$
1,900
8
$
2,150
Each additional room
$
225
Source: California Department of Transportation,
Federal Highway Administration Schedules
R)RSG
Page 22
Attachment 6
City of La Quinta Redevelopment Agency
GRIEVANCE PROCEDURES
Purpose: The purpose of the Grievance Procedures is to attempt to resolve disputes
between the claimant and the Agency at the lowest possible administrative level while affording
the claimant an opportunity to have a full and fair review of his/her case. Therefore, all relevant
evidence should be presented at the lowest level of these proceedings. In any case where such
evidence could have been presented at a lower level and the claimant failed to do so, the
relevant hearing body may, at its discretion, refer the matter back to the lower level for
consideration and determination prior to their considering such evidence. A failure to provide
evidence at a lower level of proceedings may prevent the issue or evidence from being further
reviewed, including, without limit, in judicial review for failure to exhaust remedies. These
procedures are supplemented by HCD Guidelines sections 6150-6176.
A. Right of Review
Initial Determination: Any displaced person or business who is not satisfied with a
determination as to eligibility, amount of payment, and failure by the Agency to provide
comparable permanent or adequate temporary replacement housing or the Agency's property
management practices, or not properly applying appropriate regulations, at his/her election, may
have his/her claim reviewed and reconsidered by the Agency's relocation consultant in
accordance with the following procedures.
To obtain an initial determination from the Agency's relocation consultant, claimant must
complete a Relocation Complaint form and submit it to the Agency's relocation consultant and
the City Clerk within (540) days from the date he/she moves from the acquired property or
receives final compensation for displacement from the property, whichever is later.
The Agency's relocation consultant shall provide the claimant with a full written explanation
of the determination and the basis therefore, which explanation shall be provided within three
weeks from the date of receipt of the request. The written explanation shall include a statement
of claimant's right to seek within ten (10) days further review of his/her claim by either formal or
informal review and an explanation of the steps the claimant must take to obtain this review.
The right to an informal oral presentation as provided in section B below or a formal
hearing as provided in section C below shall not be conditioned upon first obtaining an initial
determination from the Agency's relocation consultant.
B.Informal Oral Presentation
Agency Review: If the claimant feels that the written explanation provided in section A
above is incorrect or inadequate, or if the claimant desires to proceed directly to informal review,
he/she may request an informal hearing with the Community Development Director or Designee
("Director").
(1) To obtain an informal hearing before the Director the claimant must request in
writing that the Director schedule such a hearing. Such written request shall be
.J}R�`'�
SG
�� Page 23
made (i) within ten (10) days from the date of the written initial determination or, if
the claimant does not wish to request an initial determination, (ii) by submitting a
Relocation Complaint form within five hundred forty (540) days from the date
he/she moves from the acquired property or receives final compensation from the
property, whichever is later.
(a) Within fifteen (15) days from the date of receipt of claimant's Relocation
Complaint form for an informal hearing, he/she will be afforded an
opportunity to make an oral presentation, or to request a written review by
the Director of the relevant documents and written materials submitted by
the claimant.
(b) The claimant may be represented by an attorney or other person of his/her
choosing at the oral presentation hearing (at the cost of the claimant).
(c) The Director shall prepare a summary of the matters discussed and
determinations made during the informal hearing, or written review, and
serve a copy thereof upon the claimant.
(d) The Director shall review and reconsider the determination of the claimant's
case in light of:
- All material upon which the Agency based its original determination
including all applicable rules and regulations;
- The reasons given by the claimant for requesting review and
reconsideration of his/her claim;
- Whatever additional written material has been submitted by the
claimant; and
- Any further information which the Director may, in his/her discretion,
obtain by request, investigation or research, to ensure fair and full
review of the claim.
- The proceedings shall not be bound by any formal rules of evidence.
(2) The final determination on review by the Director shall include, but is not limited
to:
(a) The Agency relocation consultant's initial determination, if applicable;
(b) The factual and legal basis upon which the decision is based, including any
pertinent explanation or rationale; and
(c) A statement of claimant's right to seek within ten (10) days further review of
his/her claim by the City Manager and Assistant City Manager and an
explanation of the steps the claimant must take to obtain this review.
(3) The right to a formal hearing as provided in section C below shall not be
conditioned upon first obtaining an informal hearing by the Director.
�RSG
��" Page 24
C. Request for Formal Review
The City Manager and the Assistant City Manager Review: If the claimant feels that the
initial determination by the Agency's relocation consultant, the Director's determination following
the informal oral hearing, or written review by the Director is incorrect or inadequate, or if the
claimant desires to proceed directly to formal review, he/she may request a formal hearing
before the City Manager and the Assistant City Manager (or, if there is no Assistant City
Manager, such other person as the City Manager may designate), acting as the Appeals Board
("Appeals Board").
To obtain a formal hearing before the Appeals Board the claimant must request in writing
that the Director schedule such a hearing. Such request shall be made (i) within ten (10) days
from the date of the Agency relocation consultant's initial determination, the Director's
determination following the informal hearing or the Director written review or, if the claimant
does not wish to request an informal hearing (ii) within five hundred forty (540) days from the
date he/she moves fro the acquired property or receives final compensation from the property,
whichever is later.
(1) Within fifteen (15) days from the date of receipt of claimants written request, he/she
will be notified of the formal hearing date. If the claimant requests additional time to
prepare material for consideration and shows good cause therefore, the hearing date
shall be continued to another date.
(2) The Appeals Board shall, at the time it gives notice of the formal hearing date, notify
the claimant that he/she has the right to be represented by an attorney or others at
his/her own expense, to present his/her case by oral or documentary evidence; the
right to submit oral or documentary evidence; the right to submit rebuttal evidence to
conduct such cross-examination as may be required for full and true disclosure of
facts; and the right to seek judicial review after having exhausted all administrative
appeal remedies.
(3) The Appeals Board shall review and reconsider the initial determination and/or the
determination made at an informal hearing taking into consideration all material upon
which the challenged determination was made, all applicable rules and regulations, the
reasons given by the claimant for requesting review, any additional relevant evidence,
oral or documentary, submitted by either the claimant or the Agency's representatives.
No evidence may be relied upon by the Appeals Board where the claimant has been
improperly denied an opportunity to rebut evidence or cross-examine a witness. The
proceedings of the Appeals Board shall not be bound by any formal rules of evidence.
(4) The Appeals Board shall make its determination within six weeks from the date on
which the formal hearing is concluded or the date of receipt of the last material
submitted, whichever is later.
(5) The Appeals Board's determination shall be made in writing and shall contain its
decision, the factual and legal basis upon which the decision is made and a statement
informing the claimant of his/her right to appeal the decision to the Agency Board as
provided below.
� J
RSG
Page 26
(6) The claimant shall be promptly served with a copy of the Appeals Board's
determination.
Review by Redevelopment Agency. Any person who believes himself/herself to be
aggrieved by any final decision of the Appeals Board may, within five (5) days after that date on
the Appeal Board's notice of such ruling or act, appeal the Appeals Board's determination to the
Redevelopment Agency Board of Directors (the "Agency') by filing with the Community
Development Director a written statement of the rulings or acts complained of and the reasons
for taking such appeal. The Director shall thereupon refer such appeal to the Agency at its next
regular meeting and the Agency shall thereupon fix a time for the hearing of said matter, which
time shall be not less than thirty (30) days from the time said appeal is presented to the Agency
by the Director. On the date thus fixed, or on the date to which said hearing shall have been
continued, the Agency shall proceed to hear and consider the evidence relating to said matter
and shall make and enter on its minutes its final determination therein. The Agency may
confirm, modify or set aside the findings of the Appeals Board, and the Agency's determination
in the matter shall be final and conclusive. No proceeding or action shall lie against the City, the
Agency, the Community Development Director, the City Manager, the Assistant City Manager
(or such appointed designee) or any member of either thereof, nor against any officer, agent or
employee of the Agency or City to review or enjoin the enforcement of its determination or
orders of the Agency made pursuant hereto, or to recover damages for carrying out such orders
in a lawful and reasonable manner, unless such action is commenced within ninety days (90)
from and after service of notice of the findings and determination of the Agency. Notice of the
determination of the Agency shall be served by the Community Development Director upon the
person, or persons, taking the appeal. The effect of any order from which an appeal is taken as
herein provided shall be suspended and of no force or effect until such appeal is fully
determined.
The claimant shall be deemed to have exhausted his/her administrative remedies upon
filing timely appeals and the Agency taking action upon his/her complaint.
E.Time Limits
General: The Community Development Director may extend any of the time limits as
permitted by HCD Guidelines section 6162 upon a showing of good cause; provided, however,
that the time periods established by these Grievance Procedures within which to timely appeal a
decision from a lower body shall not be extended. Any refusal to waive a time limit may be
reviewed in accordance with the procedures set forth in Section C above; provided, however,
any request to review shall be made within thirty (30) days from the date of receipt by claimant
of written notice that the request to extend time has been denied.
F. Review of Files By Claimant
The claimant may inspect all files and records bearing upon his/her claim or the
prosecution of the claimant's grievance, except to the extent the confidentiality of the material
sought or the disclosure thereof is protected or prohibited by law.
G.Effect of Determination
I)p RSG
Page 26
Determinations made by the Agency Board pursuant to the paragraph entitled "Review by
Redevelopment Agency" in section C shall be applicable to all eligible persons in similar
situations regardless of whether any such eligible person seeks a review. All written
determinations shall be filed in the records of the Agency and available for public inspection.
H. Right to Counsel
Any claimant has the right to be represented by an attorney at his/her expense at any and
all stages of the proceedings set forth in this Article.
I. Stay of Displacement Pending Review
If claimant seeks to prevent displacement, the Agency shall not require the claimant to
move until at least 20 days after it has made a determination and the claimant has had an
opportunity to seek judicial review. In all cases the Agency shall notify the claimant in writing 20
days prior to the proposed new date of displacement.
J. Further Review
If the Agency denies the eligibility of a claimant for a payment, or disapproves the full
amount claimed, or refuses to consider the claim on its merits because of untimely filing, or any
other ground, the Agency's notification to the claimant of its determination shall inform the
claimant of its reasons therefore, and shall also inform the claimant of the applicable procedures
for obtaining further review of this determination.
These regulations prescribe the City of La Quinta procedures for granting administrative
relief to any person aggrieved by a determination as to eligibility for a payment authorized by the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and the State
of California Government Code Section 7260, et. seq., with regard to the obligation of the
Agency to refer such person to an adequate replacement dwelling or to any person aggrieved
by a determination as to eligibility for a payment authorized by the above legislation to provide
the opportunity for his/her application to be reviewed by the appropriate department responsible
for administering such payments.
O) RSG
Page 27
i
I I
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Acceptance of a Grant of Easement
for Emergency Ingress and Egress and Public Utility
Purposes from Rancho Santana Homeowners
Association, Inc. Associated with Tract Map No.
31202-1
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
OLD
CONSENT CALENDAR: C>
STUDY SESSION:
PUBLIC HEARING:
Accept a Grant of Easement for emergency ingress and egress and public utility
purposes from Rancho Santana Homeowners Association, Inc. associated with Tract
Map No. 31202-1.
FISCAL IMPLICATIONS:
None at this time.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
The Rancho Santana Development, Tract Map No. 31202-1 is located on the south
side of Avenue 52 and west of Monroe Street (Attachment 1).
A secondary emergency access was required by the Fire Department per the
Conditions of Approval for Tract Map No. 31202. Said emergency access originally
was dedicated on Tract Map No. 31202-2 over Lot E. However, subsequent
development on the west, Madison Club, required purchasing of lots and said
easement at the northwest corner of Tract Map No. 31202-2, and adjustment of the
emergency easement. Partial emergency access was finally dedicated on Parcel Map
No. 34653 but subsequent additional dedication is required over Lot J of Tract Map
No. 31202-1 to complete the access from Avenue 52 to Rancho Santana Drive.
J
The Rancho Santana Homeowners Association, Inc. desires at this time to dedicate, by
Grant of Easement (Attachment 2), the additional right-of-way to the City of La
Quinta.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Accept a Grant of Easement for emergency ingress and egress and public utility
purposes from Rancho Santana Homeowners Association, Inc. associated with
Tract Map No. 31202-1 and authorize the City Manager to sign the certificate
of acceptance for the same; or
2. Do not Accept a Grant of Easement for emergency ingress and egress and
public utility purposes from Rancho Santana Homeowners Association, Inc.
associated with Tract Map No. 31202-1 and do not authorize the City Manager
to sign the certificate of acceptance for the same; or
3. Provide staff with alternative direction.
Respectfully submitted,
Jublic
othy R. n ss
ereP. on E.
Work ct ity Engineer
Approved for submission by:
homas P. Genovese, City Manager
Attachments: 1. Vicinity Map
2. Grant of Easement
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ATTACHMENT
RECORDING REQUESTED
BY AND WHEN RECORDED
MAIL TO:
City of La Quints, City Clerk
P.O. Box 1504
La Quinta, CA 92247-1504
FOR RECORDER'S USE ONLY
GRANT OF EASEMENT
RW-D 2006-067
For valuable consideration, receipt of which is hereby acknowledged,
Rancho Santana Homeowners Association, Inc.,
hereby GRANTS to the City of La Quinta, an easement for emergency ingress and egress and
public utility purposes over, under, through and across the following described strip of land:
SEE ATTACHED "EXHIBIT A" LEGAL DESCRIPTION AND `°EXHIBIT B" PLAT
Rancho Santana Homeowners Association, Inc.
Dated: By:
Dated: By:
STATE OF CALIFORNIA _
COUNTY OF RIVERSIDE } S.S.
on before me,
A Notary Public in and for said County and State, personally appeared
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose names) islam subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
hiaftwdtheir authorized capadity(ies), and that by his/her/their signature(s) on
the instrument the petson(s), or the entity upon behalf of which the person(s)
acted, executed the instrument
WITNESS my hand and official =1
Signature
MM AaF.I FOR OFFICW.NOiA LSFAL)
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EXHIBIT "A"
GRANT OF EASEMENT
LEGAL DESCRIPTION
THE SOUTHERLY 30 FEET OF THE FOLLOWING DESCRIBED PROPERTY:
THE SOUTHERLY 165.075 FEET OF THAT PORTION OF THE SOUTH ONE-HALF OF
THE SOUTHWEST ONE -QUARTER OF THE SOUTHEAST ONE -QUARTER OF SECTION
8, TOWNSHIP 2 SOUTH, RANGE 5 EAST, SAN BERNARDINO BASE AND MERIDIAN,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE SOUTHEAST ONE -QUARTER OF
SAID SECTION 8: THENCE NORTH 0°29'35" WEST, 330.15 FEET; THENCE AT RIGHT
ANGLES WESTERLY A DISTANCE OF 275 FEET; THENCE SOUTH 0°23'20" EAST TO
THE POINT OF BEGINNING.
EXCEPT THE WESTERLY RECTANGULAR 30 FEET AS CONVEYED TO THE COUNTY
OF RIVERSIDE BY DEED RECORDED DECEMBER 28, 1959 IN BOOK 2606 PAGE 354,
OFFICIAL RECORDS, RIVERSIDE COUNTY.
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COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Consideration of Adoption of a Resolution
Certifying the Official Canvass of Election Returns for
the General Municipal Election held November 7, 2006
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt a resolution certifying the official canvass of election results for the General
Municipal Election held November 7, 2006.
FISCAL IMPLICATIONS:
None.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
At the May 6, 2006 meeting, the City Council adopted Resolution No. 2006-043,
giving notice of a General Municipal Election to be held on Tuesday, November 7,
2006, for the election of certain officers as required by the provisions of the laws of
the State of California. On July 5, 2006, the City Council adopted Resolution No.
2006-066, ordering the submission of a ballot measure validating, re-enacting and
approving the City's transient occupancy tax rate and the definition of group hotels to
the qualified electors of the City at the November 7, 2006 General Municipal Election.
The Certification of Election Results for the election of certain officers and the ballot
measure is anticipated to be provided by the Riverside County Registrar of Voters on
December 5, 2006 and will be included as Exhibit A to the resolution. (Certification of
Election Results will be distributed upon receipt from the County Registrar.)
„ ,7
FINDINGS AND ALTERNATIVES:
The Alternatives available to the City Council include:
1. Adopt a resolution certifying the official canvass of election returns for the
General Municipal Election held on November 7, 2006; or
2. Do not adopt a resolution certifying the official canvass of election returns for
the General Municipal Election held on November 7, 2006; or
3. Provide staff with alternative direction.
Respectfully submitted,
�i//%ij i � , %'�///
;:: -
City Clerk
Approved for submission by:
rlxzI 2a+"o�&�P�
Thomas P. Genovese, City Manager
RESOLUTION NO. 2006-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA, CALIFORNIA, RECITING THE FACT OF THE
GENERAL MUNICIPAL ELECTION HELD ON THE
SEVENTH DAY OF NOVEMBER, 2006, DECLARING THE
RESULTS AND SUCH OTHER MATTERS AS PROVIDED
BY LAW
WHEREAS, a General Municipal Election was held and conducted in the City
of La Quinta, California, on Tuesday, November 7, 2006, as require by law; and
WHEREAS, notice of election was given in time, form and manner as
provided by law/ candidates were nominated to fill the vacancy or vacancies as
provided by law; the election was held and conducted and the votes were cast,
received and canvassed and the returns made and declared in time, form and
manner as required by the provisions of the laws of the State of California relating
to General Law cities and the Charter of the City of La Quinta; and
WHEREAS, the Riverside County Registrar of Voters canvassed the returns
of the election and has certified the results to the City of La Quinta, and said
results are received, attached and made a part hereof as Exhibit "A"; and
WHEREAS, On July 5, 2006, the City Council adopted Resolution No.
2006-066, ordering the submission of a ballot measure validating, re-enacting and
approving the City's transient occupancy tax rate and the definition of group hotels
to the qualified electors of the City at the November 7, 2006 General Municipal
Election.
WHEREAS, said General Municipal election was held for the purpose of
electing the following officers and ballot measure of said City as required by the
laws relating to cities in the State of California, to wit:
One (1) Mayor of the City Council of said City for the full term of two years;
Two (2) Members of the City Council of said City for the full term of four
years;
Measure J: Shall Ordinance No. 428 be adopted to validate, re-enact, and
approve the existing transient occupancy tax rate of 11 % for group hotels and
10% for all other hotels, as such rates are established by the first sentence of
Municipal Code Section 3.24.030 and as group hotels are defined in Municipal
0
Resolution No. 2006-
November 7, 2006 Election Results
Adopted: December 5, 2006
Page 2
Code Section 3.24.020.1, which provisions were passed in September of 1992 in
Ordinance No. 211 ?
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La
Quinta, California, as follows:
SECTION 1 That the name of person voted for at said election for Mayor of
the City Council of said City is as follows:
DON ADOLPH
SECTION 2 That the names of persons voted for at said election for
Members of the City Council are as follows:
TERRY B. HENDERSON
TOM KIRK
KEN NAPPER
LARRY PUGHE
LARRY F. SYLK
SECTION 3 The City Council does declare and determine that Don Adolph
was elected as Mayor for the full term of two (2) years; and Terry B. Henderson
and Tom Kirk were elected as Members of the City Council for the full term of four
(4) years.
SECTION 4 That the City Clerk shall immediately make and deliver to each
of the persons so elected, a Certificate of Election signed by the City Clerk and
authenticated; that the City Clerk shall also administer to each person elected, the
Oath of Office prescribed in the Constitution of the State of California and shall
have them subscribe to it and file it in the Office of the City Clerk. Each and all of
the persons so elected shall then be inducted into the respective office to which
they have been elected.
SECTION 5 That the ballot measure voted for at said election is as follows:
Ivteasure j:
Shall Ordinance No. 428 be adopted to validate, re-enact, and
approve the existing transient occupancy tax rate of 11 % for YES
group hotels and 10% for all other hotels, as such rates are
established by the first sentence of Municipal Code Section
3.24.030 and as group hotels are defined in Municipal Code NO
Section 3.24.020.1, which provisions were passed in September
of 1992 in Ordinance No. 211 ?
�J
Resolution No. 2006-
November 7, 2006 Election Results
Adopted: December 5. 2006
Page 3
SECTION 6 That the City Council does declare that the Riverside County
Registrar of Voters has certified to the passage of Measure J and shall take effect
10 days after adoption of this resolution. The Mayor shall sign Ordinance No. 428
as provided therein.
SECTION 6 That the City Clerk shall immediately make and deliver to each
of the persons so elected, a Certificate of Election signed by the City Clerk and
authenticated; that the City Clerk shall also administer to each person elected, the
Oath of Office prescribed in the Constitution of the State of California and shall
have them subscribe to it and file it in the Office of the City Clerk. Each and all of
the persons so elected shall then be inducted into the respective office to which
they have been elected.
SECTION 7 That the City Clerk shall certify to the passage and adoption of
this resolution and enter it into the book of original resolutions.
SECTION 8 The City Clerk shall cause Ordinance No. 428 to be posted in at
least three public places designated by resolution of the City Council, shall certify
to the adoption and posting of this Ordinance, and shall cause Ordinance No. 428
and its certification, together with proof of posting to be entered into the BOOK of
ORDINANCES of the City of La Quinta.
PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta
City Council held on this 5`h day of December, 2006, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
DON ADOLPH, Mayor
City of La Quinta, California
383
Resolution No. 2006-
November 7, 2006 Election Results
Adopted: December 5, 2006
Page 4
ATTEST:
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
(SEAL)
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
.;94
grIo
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Consideration of City Council
Reorganization
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
That the City Council select a member to serve as Mayor Pro Tempore for a term as
provided by Resolution No. 98-109.
FISCAL IMPLICATIONS:
None.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
The provisions of Resolution No. 98-109 require the Council to meet on the Tuesday
after each general municipal election and choose one of its members as Mayor Pro
Tempore, in accordance with Government Code Section 36801. Each selection shall
be by three or more affirmative votes; a failure to achieve such total of affirmative
votes shall be deemed a selection of the incumbent to remain in office. Each person
so selected shall serve until a successor is chosen (at any time) by three or more
affirmative votes, provided that at the second regular meeting in November of each
odd numbered year, the office of Mayor Pro Tempore shall automatically be
reconsidered by the Council.
Due to the fact that the Riverside County Registrar of Voters provides the certified
results of the canvass for the November 7, 2006 General Election in early December,
the selection of Mayor Pro Tempore is being presented to the City Council at this time.
J �,
FINDINGS AND ALTERNATIVES:
The Alternatives available to the City Council include:
1. Select a Mayor Pro Tempore to serve a term as provided by Resolution No.
98-109; or
2. Provide staff with alternative direction.
Respectfully submitted,
Veronica i
ontecino, CIVIC
City Clerk
Approved for submission by:
r- �PALI�
Thomas P. Genovese, City Manager
J
C&tyof 4 4 a"
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Consideration of City Council Standing
Committee Appointments
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION: �7
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Select representatives of the City Council to serve on various committees for the year
2007.
FISCAL IMPLICATIONS:
None.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Each year the City Council selects Council Members to serve on a number of
committees which provide regional and local representation for the City of La Quinta.
Attachment 1 is a complete list of committees and the appointments made last year
for the Council's consideration.
At the November 21, 2006 meeting, the City Council appointed Mayor Don Adolph to
the Coachella Valley Association of Government's Homeless Task Force to represent
the Council at the December 6, 2006 Task Force meeting. The City Council requested
this item be brought back at the December 5, 2006 Council meeting for
reconsideration of appointment. The Task Force has been added to the list of Council
committee assignments as a standing committee.
330
FINDINGS AND ALTERNATIVES:
The Alternatives available to the City Council include:
1. Select representatives of the City Council to serve on various committees for
the year 2007; or
2. Do not select representatives of the City Council to serve on various
committees for the year 2007; or
3. Provide staff with alternative direction.
Respectfully submitted,
Veronica
City Clef
Approved for submission by:
Thomas P. Genovese, City Manager
Attachment: 1. List of Existing City Council Committee Assignments
� J13
ATTACHEMENT1
CITY OF LA QUINTA CITY COUNCIL APPOINTMENTS
COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS
41MAL CAMPUS COMMISSION:
Member: Terry Henderson, Council Member
Alternate: Lee Osborne, Council Member
Bets every other second Thursday at 9:30 a.m.
(ECUTIVE COMMITTEE:
Member: Don Adolph, Mayor
Alternate: Stanley Sniff, Mayor Pro Tem
Non -Voting Member: City Manager
eets last Monday of each month at 6:00 p.m.
NVIRONMENTAL AND ENERGY RESOURCES COMMITTEE:
Member: Stanley Sniff, Mayor Pro Tern
Alternate: Lee Osborne, Council Member
Staff Support: Community Development Director or Designee
Teets second Thursday of each month at 12:00 p.m.
ALLEY -WIDE HOMELESS TASK FORCE:
Member: Don Adolph, Mayor
Alternate:
Staff Support:
IUMAN AND COMMUNITY RESOURCES COMMITTEE:
Member: Lee Osborne, Council Member
Alternate: Tom Kirk, Council Member
Staff Support: Community Services Director
Meets fourth Wednesday of each month at 11:45 a.m.
Jpdated: March 8, 2006
IBLIC SAFETY COMMITTEE:
Member: Tom Kirk, Council Member
Alternate: Terry Henderson, Council Member
Staff Report: Building & Safety Dir. or Community Safety Mgr.
Bets second Monday of each month at 10.00 a.m.
3ANSPORTATION COMMITTEE:
Member: Tom Kirk, Council Member
Alternate: Terry Henderson, Council Member
Staff Support: Public Works Director/City Engineer
eets third Monday of each month at 12:00 p.m.
ECHNICAL ADVISORY COMMITTEE:
Member:
City Manager
leets second Friday of each month at 10:00 a.m.
ECHNICAL PLANNING SUB -COMMITTEE:
Member: Community Development Designee
Alternate: Community Development Director
Teets third Monday of each month at 8:30 a.m.
'RANSPORTATION TECHNICAL ADVISORY SUB -COMMITTEE:
Member: Public Works Director/City Engineer
Alternate: Senior Engineer
sleets fourth Thursday of each month at 1:30 p.m.
>M10 TECHNICAL WORKING GROUP:
Member: Community Development Director or Designee
Alternate: Associate Planner
Meets first Monday of each month at 1:30 p.m.
Jpdated: March 8, 2006
CALIFORNIA JOINT POWERS INSURANCE AUTHORITY:
Member: Lee Osborne, Council Member (Appointed 117103)
Alternate: Personnel/Risk Manager
CALIFORNIA STATE UNIVERSITY SAN BERNARDINO LIAISON:
Member:
Appointed by:
Authorized by Council:
Management Analyst
City Manager
October 1, 1996
CHAMBER OF COMMERCE WORKSHOP/INFORMATION EXCHANGE COMMITTEE
Member: Tom Kirk, Council Member (Rotated: September 2006)
Staff Support: Tom Genovese, City Manager
Staff Support: Doug Evans, Community Development Dir.
Staff Support: Maria Casillas, Management Analyst
Teets every other month / Rotate after 3 consecutive meetings
CIVIC CENTER ART PURCHASE COMMITTEE
Members: Terry Henderson, Council Member (appointed March 20(
Tom Kirk, Council Member (appointed March 2006)
otates Annually
COACHELLA VALLEY ECONOMIC PARTNERSHIP
Board Member: Don Adolph, Mayor
Alternate: Lee Osborne, Council Member
Staff Support: Management Analyst
COACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT
LQ Representative: Ron Perkins (Board Member)
Term: Four (4) Years
Term Expires: June 30, 2008
(Re -appointed: 712196; 5/18/00; 1/7/03; 5118104)
(Continuing to Serve: 317/06)
Staff Support: City Manager
Meets second Tuesday of each month at 7:00 p.m.
Jpdated: March 8, 2006
COACHELLA VALLEY MOUNTAINS CONSERVANCY
Ex. Board Member: Stanley Sniff, Mayor Pro Tern
Alternate: Terry Henderson, Council Member
Staff Support: Community Development Director
eets second Monday of every other month at 3:00 p.m.
JACQUELINE COCHRAN REGIONAL AIRPORT
Member: Lee Osborne, Council Member
Alternate: Terry Henderson, Council Member
Staff Support: Community Development Director
eets last Wednesday of each month at 4:00 p.m. at Thermal Airport
COACHELLA VALLEY WATER DISTRICT JOINT WATER POLICY COMMITTEE
Member: Don Adolph, Mayor
Alternate: Terry Henderson, Council Member
(Appointed. September 22, 2004)
IMPERIAL IRRIGATION DISTRICT - POWER CONSUMER ADVISORY COMMITTEE
Member: Vacant - No La Quinta Representative at Present
osition appointed by l.l.D. Board - City may present a nomination when vacancy occurs
LEAGUE OF CALIFORNIA CITIES - RIVERSIDE DIVISION
Delegate: Terry Henderson, Council Member
Alternate: Don Adolph, Mayor
(Appointed: December 16, 1997)
(Reappointed: January 7, 2003)
(Reappointed: January 6, 2004)
LIBRARY SERVICE ZONE ADVISORY BOARD
Member: Terry Henderson, Council Member (Appointed: 1011196
Alternate: Don Adolph, Mayor (Appointed: 1011196)
Jpdated: March 8, 2006
PALM SPRINGS DESERT RESORTS CONVENTION & VISITORS AUTHORITY
Ex. Board Member: Terry Henderson, Council Member
Alternate: Don Adolph, Mayor
Staff Support: City Manager
-ets third Tuesday of each month at 9:00 a.m. at Palm Desert City Hall
PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION
LQ Representative: Nancy Doria (79-448 Calle Prospero /Appointed: 917104)
Alternate: Michael Mastrogiuseppe (78-895 Via Trieste 1917104)
4-Year Term expires June 30, 2008
eets the first & third Wednesday of each month at 8:00 a.m.
RIVERSIDE COUNTY CHILD SAFETY COMMISSION
Member: Terry Henderson, Council Member
Alternate: Tom Kirk, Council Member
RIVERSIDE COUNTY FREE LIBRARY SYSTEM ADVISORY COMMITTEE
Member: Terry Henderson, Council Member
Term: Two-year Term
Expiration: February 1, 2006
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
Commission Member: Terry Henderson, Council Member
Commission Alternate: Don Adolph, Mayor
(Both Appointed: January 7, 2003 / no expiration date)
fleets second Wednesday of each month at 9:00 a.m, in Riverside
SANTA ROSA & SAN JACINTO NATIONAL MONUMENT ADVISORY COMMITTEE
Commission Member: Terry Henderson,, Council Member
(Appointment expires: March 16, 2007)
Meetings held ls` Saturday of every other month
�.3
Jpdated: March 8, 2006
JNLINE TRANSIT AGENCY
Board Member
Alternate:
Staff Support:
Don Adolph, Mayor
Lee Osborne, Council (Member
City Manager
=ets last Wednesday of each month at 12:00 p.m.
Member:
Member:
Member:
Member:
Member:
Member:
SCHOOL AD HOC COMMITTEE
Lee Osborne, Council Member
Stanley Sniff, Mayor Pro Tem
SILVERROCK RESORT SUB -COMMITTEE
Lee Osborne, Council Member
Don Adolph, Mayor
SPHERE OF INFLUENCE SUBCOMMITTEE
Tom Kirk, Council Member
Lee Osborne, Council Member
S' 4
Ipdated: March 8, 2006
AGENDA CATEGORY:
BUSINESS SESSION:
COUNCIL/RDA MEETING DATE: December 5, 2006 CONSENT CALENDAR: _
ITEM TITLE: Consideration of Options for the Highway STUDY SESSION:
1 1 1 /Washington Street Art Piece PUBLIC HEARING:
RECOMMENDATION:
Approve the relocation of the "Oasis 1 1 1 " (or "Gem of the Desert") art piece to the
front of the new maintenance facility at Fritz Burns Park and appropriate $65,900
from the General Fund to the Community Services Administration Special Projects
account and direct the City Attorney to prepare and the City Manager to sign an
addendum to the Art Purchase Agreement.
FISCAL IMPLICATIONS:
Unallocated funding for this project is available in the Art in Public Places Fund,
Account No. 270.0000.451.74-80.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
The art piece "Oasis 1 1 1 " (also known as "Gem of the Desert") ("Artwork") was
purchased through an Art Purchase Agreement on September 6, 1996 between the
City of La Quinta, and Washington/Adams, L.L.C., and artist Louis De Martino.
J�
On September 5, 2006, City Council directed staff to review the Art Purchase
Agreement for the Artwork and bring it back to Council to discuss possible removal
or relocation.
The City Attorney has reviewed the Art Purchase Agreement and has concluded
that the Artwork may be relocated with the consent of the Owner/Developer. The
Artwork may not be destroyed or defaced. If the City Council approves the
relocation of the art piece, the City Attorney would draft an addendum to the Art
Purchase Agreement to be signed by the City of La Quinta, and
Washington/Adams, L.L.C., and the Artist defining the terms of the relocation.
Staff contacted contractors for estimates on relocating the Artwork. The cost to
remove the Artwork from the corner of Washington and Highway 111 is
approximately $11,000. This would include the demolition of the concrete
foundation, which is not salvageable. This estimate does not include re-
landscaping the vacant pad. Landscaping of the pad will cost approximately
$3,400. The reinstallation of the Artwork in front of the new maintenance facility
at Fritz Burns Park is estimated to be $51,500, which includes the construction of
a new concrete foundation and installation of the top metal portion and lights.
Currently, staff is in the process of developing a Master Plan for the new
maintenance facility at Fritz Burns Park. If the relocation is approved, the new
location for the Artwork will be included in the Master Plan.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1 . Approve the relocation of the "Oasis 1 1 1 " (or "Gem of the Desert") art piece
to the front of the new maintenance facility at Fritz Burns Park and
appropriate $65,900 from the General Fund to the Community Services
Administration Special Projects account and direct the City Attorney to
prepare and the City Manager to sign an addendum to the Art Purchase
Agreement; or
2. Do not approve the relocation of the "Oasis 1 1 1 " (or "Gem of the Desert")
Artwork to the front of the new maintenance facility at Fritz Burns Park; or
3. Provide staff with alternative direction.
3J6
Respectfully submitted,
Edie A. Hy on, Community Services Director
Approved for submission by:
<
Thomas P. Genovese, City Manager
BUSINESS SESSION ITEM:
ORDINANCE NO. 431
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF LA QUINTA, CALIFORNIA, ADOPTING PRE -ZONING
DESIGNATIONS FOR CERTAIN LANDS PROPOSED FOR
ANNEXATION, AND CONSISTING OF 11.62 ACRES
LOCATED AT THE SOUTHEAST CORNER OF HIDDEN
RIVER ROAD AND WASHINGTON STREET, AND
IDENTIFIED AS ASSESSOR'S PARCEL NUMBERS 609-
040-005, 609-040-007 AND 609-040-023
WHEREAS, the Planning Commission, at its regularly scheduled
meeting of October 17, 2006, considered the request of the City of La Quinta for
pre -annexation zoning of 11.62 acres of land at the southeast corner of Hidden
River Road and Washington Street, and identified as assessor's parcel numbers
609-040-005, 609-040-007 and 609-040-023, to High Density Residential; and
WHEREAS, after consideration of all written and oral testimony
presented at the hearing, the Planning Commission recommended adoption of a
pre -zoning ordinance by the City Council; and
WHEREAS, the City Council, at its regularly scheduled meeting of
November 21, 2006, considered the Planning Commission's recommendation at a
public hearing, including all written and oral testimony; and
WHEREAS, after careful consideration, the City Council found that the
High Density Residential zoning district is consistent with the zoning designations
in place on surrounding lands, the goals and policies of the General Plan, and the
character of the area; and
WHEREAS, an Initial Study was prepared to consider the pre -zoning of
the properties, and the City determined that the proposed pre -annexation zoning
would not have a significant environmental impact as described in the California
Environmental Quality Act, and a Negative Declaration was prepared.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of
La Quinta does as follows:
SECTION 1. EFFECTIVE DATE: This Ordinance shall be in full force and effect
thirty (30) days after its adoption.
Ordinance No. 431
Annexation 18
Adopted: December 5, 2006
Page 2
SECTION 2. POSTING: The City Clerk shall cause this Ordinance to be posted in at
least three public places designated by resolution of the City Council, shall certify
to the adoption and posting of this Ordinance, and shall cause this Ordinance and
its certification, together with proof of posting to be entered into the Book of
Ordinances of the City of La Quinta.
SECTION 3: Certain property located at the southeast corner of Hidden River Road
and Washington Street, and identified as Annexation Number 18 is hereby zoned
according to Exhibit A, attached to this Ordinance.
PASSED, APPROVED and ADOPTED by the City Council of the City of
La Quinta at a regular meeting thereof held on the 51h day of December, 2006, by
the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN
DON ADOLPH, Mayor
City of La Quinta California
ATTEST:
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
(CITY SEAL)
Ordinance No. 431
Annexation 18
Adopted: December 5, 2006
Page 3
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
100
Ordinance No. 431
Annexation 18
Adopted: December 5, 2006
Page 4
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE ► ss.
CITY OF LA QUINTA 1
I, VERONICA J. MONTECINO, City Clerk of the City of La Quinta, California, do
hereby certify the foregoing to be a full, true, and correct copy of Ordinance No.
431 which was introduced at a regular meeting on the 21" day of November,
2006, and was adopted at a regular meeting held on the 5" day of December,
2006, not being less than 5 days after the date of introduction thereof.
I further certify that the foregoing Ordinance was posted in three places within the
City of La Quinta as specified in City Council Resolution 98-109.
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
DECLARATION OF POSTING
I, VERONICA J. MONTECINO, City Clerk of the City of La Quinta, California, do
hereby certify that the foregoing ordinance was posted on
pursuant to Council Resolution.
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
t
/ 1
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Consideration of Second Reading of an
Ordinance Amending Chapter 9, Section 9.140.080 -
Supplemental Regulations of the La Quinta Municipal
Code Regulating the Development and Usage of Future
Condominium Hotel Units in Tourist Commercial
Districts and Limiting the Conversion of Existing Hotels
to Condominium Hotels
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt Ordinance No. on second reading adding Section 9.140.080 -
Supplemental Regulations to the Municipal Code with the additional change.
FISCAL IMPLICATIONS:
Positive, but unquantifiable at this time, as it will be dependent on the number of
condominium hotels built in the future.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
Staff has incorporated the change to Section 9.140.080. I, as requested by Council at
the last meeting. The change is as follows:
" I. Conversions. An express purpose of these regulations is to preserve and enhance
the City of La Quinta's existing Hotel inventory. All existing Hotels are prohibited from
converting to Condominium Hotels from and after the Effective Date. Thereafter, no
other conversions to Condominium Hotels shall be allowed in any zone, except that
existing hotels with less than 20 units may apply to convert, provided that the Hotel
after conversion, would generate an equivalent, or greater amount of municipal
revenue, and provided that the City Council finds that such conversion is in the best
interest of the City." 40)
Per City Council discussion, staff will conduct a study of appropriate criteria for
defining a condominium hotel unit. Staff will initiate the study and report back to the
City Council after the first of the year.
In addition, if an informal or formal request is made for the conversion of a small hotel,
staff will utilize this Ordinance as the basis for project review relative to the
entitlement process and other Ordinance requirements noting that a small hotel may
not be able to comply with all operational criteria.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Adopt Ordinance No. on second reading adding Section 9.140.080 -
Supplemental Regulations to the Municipal Code with the additional change.
2. Do not adopt Ordinance No. on second reading adding Section 9.140.080
- Supplemental Regulations to the Municipal Code with the additional change.
3. Provide staff with alternative direction.
Respectfully submitted,
1po'tA
Douglas vans
Communi Development Director
Approved for submission by:
Thomas P. Genovese, City Manager
ORDINANCE NO. 432
A ZONING ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LA
QUINTA, CALIFORNIA, ADDING SECTION 9.140.080 TO THE LA
QUINTA MUNICIPAL CODE REGULATING CONDOMINIUM HOTEL
DEVELOPMENT AND USAGE AND PROHIBITING CONVERSION OF
EXISTING HOTELS INTO CONDOMINIUM HOTELS
ZONING TEXT AMENDMENT 2006-088
WHEREAS, the City of La Quinta has proposed this Condominium
Hotel Zoning Ordinance ("Condominium Hotel Zoning Ordinance" or this
"Ordinance") to add Section 9.140.080 to Chapter 9.140, Supplemental Special
Purpose Regulations, to establish regulations for the development and operation of
all future Condominium Hotel projects and to prevent the conversion of existing
hotels into Condominium Hotels; and
WHEREAS, the City Council has given careful consideration to the
staff report and all of the information, evidence and testimony presented at a public
hearing on the proposed Ordinance, which public hearing was held on November
21, 2006; and
WHEREAS, the City has vacant land zoned and with General Plan
designations which provide for the development of new hotels; and
WHEREAS, the current trend, both nationally and in California, in the
hotel industry is the development and construction of condominium hotels as well
as the conversion of existing hotels to condominium hotels, which conversion the
City wishes to prohibit; and
WHEREAS, with this Condominium Hotel Zoning Ordinance, the City
will establish minimum requirements pertaining to the development, operation and
usage standards for condominium hotels while at the same time preserving existing
hotels and safeguarding hotel worker jobs and protecting the City's tourism
economy; and
WHEREAS, the passage of the proposed Ordinance is not a project
because it addresses ownership structure and operational requirements, and does
not address physical structure or development, and thus it can be seen with
certainty that it will not have a significant effect on the environment. Therefore,
the proposed amendments are exempt from the provisions of the California
Environmental Quality Act ("CEQA"), and no further environmental review is
necessary.
G5
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 2
THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA,
DOES ORDAIN AS FOLLOWS:
SECTION 1. Section 9.140.080 is added to the La Quinta Municipal Code to
read as follows.
A. Purpose. The specific purposes of these regulations are to assure that
Condominium Hotel projects are conditioned at the time of development approval in
such a way as to ensure appropriate public health, safety, welfare and land use
classifications and standards; to mitigate potential impacts of Condominium Hotels
on traffic congestion, air quality, building design and safety, police, fire and
emergency services; to assure other adequate public facilities; to allow
Condominium Hotel development projects some financial flexibility subject to the
approval of the City Council; to prohibit conversion of existing hotels to
Condominium Hotels; and to provide the City with appropriate development and
operational controls over Condominium Hotels.
B. Definitions. The following definitions shall govern the construction and
interpretation of this Section.
1. Condominium Hotel. A "Condominium Hotel" shall mean a "Hotel" or
"Group Hotel" all or part of which constitutes a condominium project
in which one or more of the Units are individually owned, but are
intended to be available for "Transient" use (as those terms are
defined in Section 3.24.020 of the La Quinta Municipal Code), when
not being used by the Unit Owner.
2. Development Agreement. For purposes of this Section, the term
"Development Agreement" shall mean any of the following: (1) a
statutory development agreement entered into pursuant to
Government Code sections 65864 et seq.; (2) a disposition and
development agreement entered into between an applicant and the
City's Redevelopment Agency; or (3) an owner participation
agreement entered into between an applicant and the City's
Redevelopment Agency.
3. Effective Date. The "Effective Date" shall mean the date on which the
ordinance adopting this Section becomes effective.
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 3
4. First Class Condominium Hotel. A "First Class Condominium Hotel"
shall mean a Condominium Hotel where both of the following apply:
(1) the Condominium Hotel has a brand Operator or an independent
Operator that is experienced in the "Upscale Segment" or "Luxury
Segment" of the hospitality industry as defined by J.D. Power and
Associates; and (2) the Condominium Hotel satisfies the published
requirements that will be sufficient for a ranking of no fewer than
Three Stars in the most recent annual awards list published from time
to time by AAA Travel Guides or by the Mobil Travel Guide.
5. Operator. "Operator" shall mean the entity designated by the owner
of the Condominium Hotel or, if all of the common area of a
Condominium Hotel is owned by a condominium owners' association,
designated by such association, to manage the Condominium Hotel.
6. Personal Use. "Personal Use" shall mean the use or occupancy of a
Unit by an Owner or any non-paying guest of an Owner for whom the
Owner may, and does, reserve its Unit. Use of a Unit arising out of an
exchange program with an affiliated hotel property shall be considered
Personal Use by the Owner.
7. Unit. "Unit" shall mean a condominium unit, as shown on a recorded
condominium plan, which is located within a Condominium Hotel.
8. Unit Owner. "Unit Owner" or "Owner" shall mean an individual or
entity that acquires any ownership interest in, and holds title to, one
or more Units.
C. Condominium Hotel Regulations. No person or entity shall construct or operate
a Condominium Hotel within the City without first obtaining all necessary
entitlements pursuant to this Section and pursuant to other applicable provisions of
the La Quinta Municipal Code. All other provisions of the La Quinta Municipal
Code, including, without limitation, Title 8 (Buildings and Construction), Title 13
(Subdivisions), and Title 9 (Zoning Code) shall be applicable to the construction and
maintenance of Condominium Hotels; provided however, that the more specific
provisions contained in this Section shall prevail over any general provisions set
forth in the La Quinta Municipal Code. A Condominium Hotel shall be allowed as a
conditionally permitted use, subject to the terms of this Section, and only within
those zoning districts in which Hotels or similar tourist and vacation
accommodations are expressly permitted either conditionally or as of right,
pursuant to the terms of Title 9 (Zoning Code) and/or any applicable specific plan.
Each application for a Condominium Hotel will be reviewed by the City's Planning
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 4
Commission and City Council. If the Planning Commission recommends granting
approval of the application, the City Council shall set notice of a public hearing to
be held within forty five (45) days thereafter or such later date as may be set by
the City Council. Approval shall be subject to required conditions necessary to
carry out the provisions of this Section.
D. Application for Condominium Hotel. An application for a Condominium Hotel
shall include the following six (6) requirements, in addition to any other information
that the City may determine is necessary to review the application. No
Condominium Hotel may be approved without approval of all of the following
requirements:
1. Development Agreement. A proposed Development Agreement
application, which shall provide for enforcement of all conditions and
standards required by this Section. In addition to any other provisions
that may properly be included within the Development Agreement, the
parties may agree to terms and conditions that are different from, or in
addition to, and supersede, the provisions and requirements of this
Section. The City shall include such terms as it deems necessary to
ensure that the Condominium Hotel operates as the equivalent of a
traditional hotel. The Development Agreement shall also include a draft
Declaration of Covenants, Conditions and Restrictions pursuant to
paragraph G below.
2. Conditions, Covenants and Restrictions ("CC&R's"). The proposed
CC&R's for the Units.
3. Environmental Assessment. Information necessary for the City to
perform an environmental assessment of the proposed Condominium
Hotel project, pursuant to the California Environmental Quality Act (Public
Resources Code, § § 21080-21094 and its implementing regulations).
4. Subdivision Application. Each Condominium Hotel application shall be
accompanied by an application for a tentative or vesting tentative map
pursuant to Title 13 of the La Quinta Municipal Code.
5. Specific Plan. Each Condominium Hotel application shall be accompanied
by an application for a specific plan or be within an approved specific plan
area which permits such use, pursuant to Government Code
sections 65450 et seq.
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 5
6. Site Development Permit. Each Condominium Hotel application shall be
accompanied by an application for a site development permit pursuant to
Section 9.210 of the Zoning Code.
E. Development Standards. The Condominium Hotel shall comply with all the
development, use, area, parking and other applicable standards of the zone or
applicable specific plan in which the project is located.
F. Condominium Hotel Standards Conditions and Requirements. In addition to the
standards referenced in this Section, each Condominium Hotel is required to meet
the following additional standards, conditions and requirements:
1. No Unit may be used as a full-time or permanent residence, except as set
forth in the next paragraph.
2. No more than one (1) Unit in each Condominium Hotel may be used for
the full-time or permanent residential occupancy by a person or family
serving as the on -site manager of the Condominium Hotel. Such Unit
must be owned by the owner or operator of the Condominium Hotel or
the owners' association, and shall not be used for homestead purposes.
3. At its sole cost and expense, each individual Unit Owner may choose to
hire any rental agent of its selection, or the Operator or an affiliate, for
the purpose of advertising the rental availability of, and procuring
potential renters for, the Owner's Unit. Unit Owners may also rent their
Units themselves. When not being used for Personal Use, each Unit shall
be available for rental as a Hotel accommodation. The Operator shall
have the right, working through the Unit Owner or its designated rental
agent, to book any unbooked room to fulfill demand, and to charge a
reasonable booking fee for each such booking.
4. Hotel guests (whether Transient or Personal Use and not including any
on -site manager) are prohibited from occupying or remaining in any Unit
for more than twenty-nine (29) consecutive days, with a minimum seven
(7) day period intervening between each twenty-nine (29) consecutive
day use period.
5. Personal Use shall not exceed (i) thirty (30) days in the aggregate during
the period of November 1 through April 30; or (ii) sixty (60) days in any
calendar year, unless the owner engaging in such Personal Use satisfies
all requirements for such excess use as set forth in the Declaration.
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 6
6. All Units shall be completely furnished with furniture, fixtures and
equipment to the standards established by the owner or operator of the
Condominium Hotel. A furniture, fixtures and equipment reserve account
shall be established and maintained in order to maintain and, when
necessary, replace the furniture, fixtures and equipment within the Units
to maintain the facility in its First Class Condominium Hotel standard.
7. The proposed location, use, and design of the Condominium Hotel shall
be consistent with the City's general plan, zoning ordinances, and any
specific plan covering the area in question.
8. In accordance with the existing provisions of Chapter 3.24 of the La
Quinta Municipal Code, every Condominium Hotel shall be subject to the
City's transient occupancy tax requirements, as may be amended from
time to time. The Owner of a Condominium Hotel Unit shall receive golf
and other benefits which are available to residents of La Quinta on the
same terms, and subject to the same conditions, as are applicable to such
residents.
9. Any proposed Condominium Hotel that will not, as proposed, qualify as a
First Class Condominium Hotel shall not be eligible to operate as a
Condominium Hotel in the City of La Quinta.
G. Provisions for Declaration. The Development Agreement submitted with the
Condominium Hotel application shall include a draft Declaration of Covenants,
Conditions and Restrictions ("Declaration") (which shall be separate and apart from
the CC&Rs required to create the Units as condominiums pursuant to California
law) which must be approved by the Community Development Director and the
City Attorney prior to final approval of the Condominium Hotel application, and
thereafter recorded against the Condominium Hotel in the Riverside County
Recorder's Office. The Declaration shall include the following provisions:
1. The Declaration shall require the Units to be included within a Hotel, and
(other than the Unit occupied by an on -site manager) made available as a
Hotel accommodation when not being used for Personal Use.
2. The Declaration shall require that the Operator manage the Units for the
Unit Owners pursuant to the Operator's then -standard form of agreement,
and provide to the Condominium Hotel, the Property, and the Occupants
and Owners of the Units, on a seven (7) day a week basis, any or all "on
property" services commonly provided at First Class Condominium Hotels
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 7
and Resorts, including without limitation, such services as front desk
check -in and check-out services (including electronic keys), routine
housekeeping, laundry and dry cleaning, room service, catering and other
food and beverage services, spa services, concierge services, parking and
bellman services to the Unit Owner and the Unit Owner's guests. The
availability and right to use such services shall be conditioned upon
payment of such charges or fees as may be imposed generally on hotel
guests. As to the availability and right to use services such as front desk
check -in and use of resort pools, lobbies, recreational facilities, etc.,
which are not separately charged to Hotel guests, use will be conditioned
upon the payment of such fees as are determined by the Operator to be
appropriate to reflect the allocable costs of such services and facilities
attributable to each Unit within the Hotel. The Operator shall have the
exclusive right to restrict and control access to any and all shared
facilities within the Condominium Hotel, provided the same does not
restrict a Unit Owner's right of access to her, his or its Unit, except that
Unit access shall be subject to mandatory registration at the Hotel front
desk to obtain a key to the Unit, which key shall be an electronic key.
The Operator's management obligations shall also include upkeep and
repair of the interior of each Unit, and monitoring and managing repair
and replacement of furniture, fixtures and equipment, both at the Unit
Owner's sole cost and expense.
3. The Declaration shall require the Operator to provide a quarterly report to
the City that contains all of the following information on each Unit: (a)
the number of said Unit; (b► the name, address and telephone number of
the Owner of the Unit; (c) whether the Operator is and has been the
rental agent for said Unit during the immediately preceding calendar
quarter; (d) the Personal Use during the immediately preceding calendar
quarter; (a) the name and address of any occupant of the Unit (other than
the Owner) whose occupancy exceeded the twenty-nine (29) day
maximum; and (f) the TOT that has been collected by the Operator and
remitted to the City for use of said Unit during the immediately preceding
calendar quarter.
4. The Declaration shall require the Condominium Hotel owner or, if none,
the Condominium Hotel's owner's association to hire a qualified
professional Operator to manage, maintain and operate all portions of the
Condominium Hotel in a manner consistent with the First Class
Condominium Hotel Standard required by this Section. The Operator shall
have at least five (5) consecutive years of experience in the hotel
management business in hotels that meet the First Class Condominium
Ordinance No. 432
Usage I Condominium Hotel Units
Limiting Conversion I Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 8
Hotel standard and have no fewer than ten (10) other properties (each in
separate cities, or distinct and separate projects in any given city,
nationally or internationally) under current management. The
Condominium Hotel Owner or owner's association, as the case may be,
shall provide the City with appropriate documentation to demonstrate that
the proposed Operator meets the requirements of this Subsection, to be
approved by City staff prior to issuance of a certificate of occupancy for
the Condominium Hotel. Upon request by the applicant, the City
Manager may waive the experience standards required above upon
finding that the proposed Operator has comparable substitute experience
and qualifications. The Declaration shall include provisions regarding
proposed changes in the Operator.
5. The Declaration shall give the Condominium Hotel Owner, Operator, and
the City the right, power and obligation to enforce the First Class
Condominium Hotel standard including, without limitation, the right to
enter any portion of the Condominium Hotel, and any individual
Condominium Hotel Units, to cure, or cause the Unit Owner to cure, any
failure to meet the First Class Condominium Hotel standard; and shall
permit the enforcement by the City, in its discretion, of this Section and
the Declaration.
6. The Declaration shall provide that Hotel guests (whether Transient or
Personal Use and not including any on -site manager) are prohibited from
occupying or remaining in any Unit for more than twenty-nine (29)
consecutive days, with a minimum seven (7) day period intervening
between each twenty-nine (29) consecutive day use period.
7. The Declaration shall provide that Personal Use shall not exceed (i) thirty
(30) days in the aggregate during the period of November 1 through April
30; or (ii) sixty (60) days in any calendar year, unless provisions for such
excess use are provided for in the Development Agreement and are
complied with by the Unit Owner.
8. Subject to applicable California general law and Department of Real
Estate regulations, and unless otherwise provided in the Development
Agreement, the Declaration shall provide that the obligation too pay any
fees or changes provided for in the Development Agreement shall be
secured by a lien in favor of the City encumbering the Units for the
amount owed, including any permitted penalties or interest, and that the
City shall have the right, but not the duty, to foreclose on any such liens
through equitable or legal proceedings.
r
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 9
9. The Declaration shall provide that it shall not be amended without the
prior written consent of the City.
H. Reporting and Inspection. Upon request of the City Manager, each Owner, the
Condominium Hotel association and the Operator shall maintain, on -site, and
regularly make available to the City and its employees and agents such information,
books, records, and documentation, including all records relating to Personal Use
and Transient use of each Unit, and also shall allow reasonable access to individual
Units, as the City finds necessary to have or review in order to ensure that the City
may determine and enforce the Condominium Hotel's compliance with this Section
and other applicable City laws, regulations, the Condominium Hotel conditions, the
Development Agreement, and the Declaration. The original and, upon each change,
every subsequent Operator shall immediately advise the Community Development
Director of its name, qualifications, address, telephone number and the name of a
contact person.
I. Conversions. An express purpose of these regulations is to preserve and
enhance the City of La Quinta's existing Hotel inventory. All existing Hotels are
prohibited from converting to Condominium Hotels from and after the Effective
Date. Thereafter, no other conversions to Condominium Hotels shall be allowed in
any zone, except that existing hotels with less than 20 units may apply to convert,
provided that the Hotel, after conversion, would generate an equivalent, or greater
amount of municipal revenue, and provided that the City Council finds that such
conversion is in the best interest of the City."
J. Prohibited Units. No provision herein shall be deemed to permit a timeshare,
fractional or other vacation ownership unit if otherwise prohibited by the La Quinta
Municipal Code.
SECTION 2. SEVERABILITY. The provisions of this Ordinance shall be
severable, and if any clause, sentence, paragraph, subdivision, section, or part of
this Ordinance shall be adjudged by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair, or invalidate the remainder thereof
but shall be confined in its operation to the clause, sentence, paragraph,
subdivision, section, or part thereof directly involved in the controversy in which
such judgment shall have been rendered.
. �r
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 10
SECTION 3. LEGAL CONSTRUCTION. The provisions of this Ordinance
shall be construed as necessary to effectively carry out its purposes, which are
hereby found and declared to be in furtherance of the public health, safety and
welfare.
SECTION 4. All ordinances or parts of ordinances in conflict with the
provisions of this Condominium Hotel Zoning Ordinance are hereby superseded by
this Ordinance, to the extent they are inconsistent with this Ordinance.
SECTION 5. EFFECTIVE DATE. This Ordinance shall take full force and
effect and be in force 30 days after passage.
SECTION 6. PUBLICATION. The City Clerk is directed to publish this
Ordinance in the manner and in the time required by law.
PASSED, APPROVED, and ADOPTED at a regular meeting of the La
Quinta City Council held on this 5`n day of December, 2006, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
DON ADOLPH, Mayor
City of La Quinta, California
ATTEST:
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
„y
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 11
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
Ordinance No. 432
Usage / Condominium Hotel Units
Limiting Conversion / Hotels to Condominium Hotels
Zoning Text Amendment 2006-088
Page 12
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE 1 ss.
CITY OF LA QUINTA 1
I, VERONICA J. MONTECINO, City Clerk of the City of La Quinta, California, do hereby
certify the foregoing to be a full, true, and correct copy of Ordinance No. 432 which was
introduced at a regular meeting on the 21at day of November, 2006, and was adopted at a
regular meeting held on the 5th day of December, 2006, not being less than 5 days after
the date of introduction thereof.
I further certify that the foregoing Ordinance was posted in three places within the City of
La Quinta as specified in City Council Resolution 98-109.
VERONICA J. MONTECINO, CIVIC, City Clerk
City of La Quinta, California
DECLARATION OF POSTING
I, VERONICA J. MONTECINO, City Clerk of the City of La Quinta, California, do hereby
certify that the foregoing ordinance was posted on pursuant to
Council Resolution.
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
AGENDA CATEGORY:
COUNCIL/RDA MEETING DATE: December 5, 2006
BUSINESS SESSION:
ITEM TITLE: Consideration of Second Reading of
Ordinance Approving a Development Agreement by and CONSENT CALENDAR:
Between the City of La Quinta and LDD SilverRock, STUDY SESSION:
LLC.
PUBLIC HEARING:
RECOMMENDATION:
Adopt Ordinance Number _, on second reading approving Development Agreement
2006-012, as depicted in Exhibit A, with the additional changes.
FISCAL IMPLICATIONS:
In addition to the Transient Occupancy Tax (TOT) which the project will generate, the
Development Agreement establishes fees for condo hotels and fractional/timeshare
units.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
The City, at its November 21, 2006 meeting, conducted a public hearing on the
Development Agreement and introduced the Ordinance for first reading. During the
public hearing, the staff report identified a number of modifications that would be
incorporated into the Development Agreement. In addition, several final adjustments
were made to ensure the Development Agreement and proposed Disposition and
Development Agreement would be consistent.
FINDINGS AND ALTERNATIVES:
Findings necessary to approve the Development Agreement are included in the
attached ordinance.
411
The alternatives available to the City Council include:
1. Adopt Ordinance Number _, on second reading approving Development
Agreement 2006-012, as depicted in Exhibit A, with the additional changes;
or
2. Do not take up the Ordinance; or
3. Provide staff with alternative direction.
Respectfully submitted,
�u
Dougl R. vans
Community Development Director
Approved for submission by:
Thomas P. Genovese, City Manager
413
ORDINANCE NO. 433
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF LA QUINTA, CALIFORNIA, APPROVING A
DEVELOPMENT AGREEMENT BY AND BETWEEN THE
CITY OF LA QUINTA AND LDD SILVERROCK, LLC
DEVELOPMENT AGREEMENT 2006-012
WHEREAS, the Planning Commission, at its regularly scheduled
meeting of November 14, 2006, considered the request of the City of La Quinta to
enter into a Development Agreement with LDD SILVERROCK, LLC, establishing the
fees associated with Condo Hotel occupancy at the proposed hotels at SilverRock
Resort; and
WHEREAS, after consideration of all written and oral testimony
presented at the hearing, the Planning Commission recommended approval of the
Development Agreement by the City Council; and
WHEREAS, the City Council, at its regularly scheduled meeting of
November 21, 2006, considered the Planning Commission's recommendation at a
public hearing, including all written and oral testimony; and
WHEREAS, at said public hearing, upon hearing and considering all
testimony and arguments, if any, of all interested persons wanting to be heard,
said City Council did make the following mandatory findings recommending
approval of said Development Agreement:
1. The proposed Development Agreement is consistent with the objectives,
policies, general land uses and programs of the City of La Quinta General
Plan and Specific Plan 06-080.
2. The land uses authorized and regulations prescribed for the Development
Agreement are compatible with the zoning and its related regulations
applicable to the property.
3. The proposed Development Agreement conforms to public convenience and
the general welfare by providing for extensive public improvements and
conforms to good land use practice by encouraging a long-range,
comprehensive approach to the development of major hotel services and
commercial development.
Ordinance No. 433
LDD SilverRock / Development Agreement
Adopted: December 5, 2006
Page 2
4. Approval of this Development Agreement will not be detrimental to the
health, safety, and general welfare since adequate provisions has been made
in previous City approvals to provide for necessary and desirable
improvements which are incorporated herein.
5. Approval of this Development Agreement will not adversely affect the
orderly development of the subject or surrounding property nor the
preservation of area -wide property values, but rather will enhance them by
encouraging planned, phased growth.
6. Consideration of the Development Agreement has been accomplished
pursuant to California Government Code Section 65864 et seq. and the City
of La Quinta Municipal Code Section 9.250.030, which governs
Development Agreements.
WHEREAS, said Development Agreement has complied with the
requirements of "The Rules to Implement the California Environmental Quality Act
of 1970" as amended (Resolution 83-63) in that the La Quinta Community
Development Department has determined that the proposed Development
Agreement was previously reviewed as part of the Mitigated Negative Declaration
for the SilverRock Resort Specific Plan (EA No. 2002-453) and its Addendum,
approved by the City Council under Resolution No. 2066-082, and that conditions
have not changed, the project is in substantial conformance with the Specific Plan,
and no further environmental review is required (PRC Section 21166).
THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, DOES ORDAIN
AS FOLLOWS:
SECTION 1. FINDINGS AND APPROVAL: The above recitals are adopted as the
findings of the City Council and the City Council approves the Development
Agreement and authorizes the City Manager to execute the Agreement.
SECTION 2. EFFECTIVE DATE AND RECORDATION: This Ordinance shall be in full
force and effect thirty (30) days after its adoption. Within 10 days after the
effective date of this Ordinance, the City Clerk shall cause the fully executed
Development Agreement to be recorded in the office of the Riverside County
Recorder.
Ordinance No. 433
LDD SilverRock / Development Agreement
Adopted: December 5, 2006
Page 3
SECTION 3. POSTING: The City Clerk shall cause this Ordinance to be posted in at
least three public places designated by resolution of the City Council, shall certify
to the adoption and posting of this Ordinance, and shall cause this Ordinance and
its certification, together with proof of posting to be entered into the Book of
Ordinances of the City of La Quinta.
PASSED, APPROVED and ADOPTED, at a regular meeting of the La
Quinta City Council held this 5th day of December, 2006 by the following vote:
AYES: Council Members
NOES:
ABSENT:
ABSTAIN:
DON ADOLPH, Mayor
City of La Quinta, California
ATTEST:
VERONICA J. MONTECINO, CIVIC, City Clerk
City of La Quinta, California
(CITY SEAL)
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California w
Ordinance No. 433
LDD SilverRock / Development Agreement
Adopted: December 5, 2006
Page 4
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE) ss.
CITY OF LA QUINTA )
I, VERONICA J. MONTECINO, City Clerk of the City of La Quinta, California, do
hereby certify the foregoing to be a full, true, and correct copy of Ordinance No.
433 which was introduced at a regular meeting on the 215S day of November,
2006, and was adopted at a regular meeting held on the 5`h day of December,
2006, not being less than 5 days after the date of introduction thereof.
I further certify that the foregoing Ordinance was posted in three places within the
City of La Quinta as specified in City Council Resolution 98-109.
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
DECLARATION OF POSTING
I, VERONICA J. MONTECINO, City Clerk of the City of La Quinta, California, do
hereby certify that the foregoing ordinance was posted on
pursuant to Council Resolution.
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
422
RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
Space Above This Line for Recorder's Use
(Exempt from Recording Fee per Gov't Code § 6103 and 27383)
DEVELOPMENT AGREEMENT
by and between
CITY OF LA QUINTA
and
LDD SILVERROCK, LLC
423
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750537 08 a12/01/06 -1-
TABLE OF CONTENTS
Pate
1.0 GENERAL........................................................................................................................3
1.1 Term......................................................................................................................3
1.2 Effective Date.......................................................................................................3
1.3 Amendment or Cancellation.................................................................................3
1.4 Termination...........................................................................................................3
1.5 Definitions.............................................................................................................4
2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING
CONSTRUCTION OF THE PROJECT...........................................................................7
2.1 Right to Develop...................................................................................................7
2.2 Additional Applicable Codes and Regulations.....................................................8
2.3 Permitted Density, Height and Use Limitations...................................................9
2.4 Developer Impact Fees.........................................................................................9
3.0 DEVELOPER'S OBLIGATIONS....................................................................................9
3.1
Development and Operation of the Project...........................................................9
3.2
Conditions of Approval; Mitigation Monitoring Program..................................10
3.3
Declaration of Covenants, Conditions and Restrictions.....................................11
3.4
Sign Agreements.................................................................................................11
3.5
Maintenance Agreements....................................................................................11
3.6
Water Agreements..............................................................................................12
3.7
Other Fees and Charges; Assessment Appeals...................................................12
3.8
Dedications and Improvements...........................................................................12
3.9
Indemnification...................................................................................................12
3.10
Insurance.............................................................................................................13
3.11
Transient Occupancy Tax Obligations................................................................15
4.0 CITY'S
OBLIGATIONS................................................................................................15
4.1
Scope of Subsequent Review/Confirmation of Compliance Process.................15
4.2
Project Approvals Independent...........................................................................15
4.3
Review for Compliance......................................................................................15
5.0 DEFAULT; REMEDIES................................................................................................16
5.1
Notice of Default.................................................................................................16
5.2
Cure of Default...................................................................................................16
5.3
City Remedies.....................................................................................................16
5.4
Developer's Exclusive Remedy..........................................................................17
6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.................................17
6.1
Encumbrances on the Project Site......................................................................17
6.2
Mortgage Protection............................................................................................17
6.3
Mortgagee Not Obligated....................................................................... :...........
17
6.4
Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................18
882/01561M084
750537 08 a12/01/06 '1'
Page
7.0 TRANSFERS OF INTEREST IN SITE, AGREEMENT, OR
MANAGEMENT............................................................................................................18
7.1 Transfers of Interest in Site, Agreement, or Management..................................18
7.2 Successors and Assigns.......................................................................................20
7.3 Assignment by City.............................................................................................20
8.0 MISCELLANEOUS.......................................................................................................21
8.1
Notices................................................................................................................21
8.2
Binding Effect.....................................................................................................21
8.3
Independent Entity..............................................................................................22
8.4
Agreement Not to Benefit Third Parties.............................................................22
8.5
Covenants............................................................................................................22
8.6
Nonliability of City Officers and Employees.....................................................22
8.7
Covenant Against Discrimination.......................................................................22
8.8
Amendment of Agreement..................................................................................22
8.9
No Waiver...........................................................................................................23
8.10
Severability.........................................................................................................
23
8.11
Cooperation in Carrying Out Agreement............................................................23
8.12
Estoppel Certificate.............................................................................................23
8.13
Construction........................................................................................................24
8.14
Recordation.........................................................................................................24
8.15
Captions and References.....................................................................................24
8.16
Time....................................................................................................................24
8.17
Recitals & Exhibits Incorporated; Entire Agreement.........................................24
8.18
Exhibits...............................................................................................................24
8.19
Counterpart Signature Pages...............................................................................25
8.20
Authority to Execute; Representations and Warranties......................................25
8.21
City Approvals and Actions................................................................................25
8.22
Governing Law; Litigation Matters....................................................................25
8.23
No Brokers..........................................................................................................26
"2/015610-0084
750537 08 a12/01106 -11-
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement') is entered into as of the 5`h day of
December, 2006 ("Reference Date"), by and between the CITY OF LA QUINTA, a California
municipal corporation and charter city organized and existing under the Constitution of the State
of the California (the "City"), and LDD SILVERROCK, LLC, a Delaware limited liability
company (the "Developer"), with reference to the following:
RECITALS:
A. Government Code Sections 65864-65869.5 ("Development Agreement Act')
authorize the City to enter into a binding development agreement for the development of real
property within its jurisdiction with persons having legal or equitable interest in such real
property.
B. Pursuant to Section 65865 of the Government Code, the City has adopted its
Development Agreement Ordinance (La Quinta Municipal Code Section 9.250.030) establishing
procedures and requirements for such development agreements ("Development Agreement
Ordinance").
C. Prior to or concurrently with the execution of this Agreement, Developer has
entered into a Disposition and Development Agreement (the "DDA") with the La Quinta
Redevelopment Agency ("Agency"), pursuant to which (1) the Agency, subject to the terms and
conditions set forth in the DDA, has agreed to sell to the Developer, in multiple phases, certain
real property located within the City at the southwest intersection of Jefferson Street and
Avenue 52 which is legally described in Exhibit A-1 attached hereto and shown on the Site Map
attached hereto as Exhibit A-2 (the "Site"); and (2) the Developer has agreed to construct on the
Site the "Project," which will consist of a commercial development, and other permitted uses.
The Project is more fully described in, and subject to (i) this Agreement, (ii) the SilverRock
Resort Specific Plan, also known as Specific Plan 06-080, which was amended by Resolution
No. 2006-083, which resolution was duly adopted by the City Council on July 18, 2006 (the
"Specific Plan"); (iii) the DDA, (iv) the Mitigated Negative Declaration prepared for the Project,
approved by the Agency on May 15, 2002, by Agency Resolution 2002-09, as updated by the
Addendum to Mitigated Negative Declaration, approved by the City Council on July 18, 2006,
by City Council Resolution No. 2006-082 (collectively, the "Updated Mitigated Negative
Declaration"); (v) any future Site Development Permits issued for the Project, including all
conditions of approval attached thereto (collectively, the "Project Site Development Permits");
(vi) Parcel Map No. 33367 and any further parcel or subdivision maps to be recorded on the Site
and the conditions of approval thereon; and (vii) the conditions of approval associated with each
and all of the foregoing approvals (collectively, the "Conditions of Approval'). The documents,
permits, approvals, and conditions described in the foregoing clauses (i)-(vii) are collectively
referred to herein as the "Development Plan," and are, or when approved or issued shall be, on
file with the City Clerk.
D. By virtue of the DDA, as of the execution of this Agreement, the Developer has
an equitable interest in the Site. By its execution of the consent form attached to this Agreement,
the Agency consents to recordation of this Agreement against the Site.
882/015610-0084
75053708 a] 2/01/06
h/ C
E. Consistent with Section 9.250.030 of the La Quinta Municipal Code, City and
Developer desire to enter into a binding agreement for purposes of (i) obligating Developer to
enter into and record, against each Parcel a City Declaration of CC&Rs that sets forth certain
requirements of the owners of (a) the Condominium Hotel Units to pay certain resort fees if their
Unit fails to generate specified levels of Transient Occupancy Tax, and (b) all of the Fractional
Units to pay a resort fee; (ii) requiring the Developer to enter into maintenance agreements with
the Agency or City obligating the Developer to maintain certain portions of the golf course lakes
located or to be located adjacent to the Site and certain landscaped parkways, sidewalks, and
trails, all as depicted on Exhibit "B" hereof, which is attached hereto and incorporated herein by
this reference (collectively, the "Public Improvements"); (iii) requiring the Developer to enter
into water agreements and signage agreements; and (iv) setting forth the manner in which
Developer shall construct, develop, use and operate the Project, if Developer purchases the site
as provided in the DDA.
F. Among other purposes, this Agreement is intended to be, and shall be construed
as, a development agreement within the meaning of the Development Agreement Act. This
Agreement will eliminate uncertainty in planning for and secure the orderly development of the
Project, ensure a desirable and functional community environment, provide effective and
efficient development of public facilities, infrastructure, and services appropriate for the
development of the Project, and assure attainment of the maximum effective utilization of
resources within the City, by achieving the goals and purposes of the Development Agreement
Act. In exchange for these benefits to City, Developer desires to receive the assurance that if it
acquires the Site in accordance with the DDA, it may proceed with development of the Project in
accordance with the terms and conditions of this Agreement and the Development Plan, all as
more particularly set forth herein.
G. The Planning Commission and the City Council have determined that the Project
and this Agreement are consistent with the City's General Plan and the Specific Plan, including
the goals and objectives thereof.
H. All actions taken by City have been duly taken in accordance with all applicable
legal requirements, including the California Environmental Quality Act (Public Resources Code
Section 21000, et seq.) ("CEQA"), and all other requirements for notice, public hearings,
findings, votes and other procedural matters.
I. On December 5, 2006, the City Council adopted its Ordinance No. 433 approving
this Agreement.
AGREEMENT.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and legal sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
- 4'7
882/015610-0084
750537.08 a12/01/06 -2-
1.0 GENERAL
1.1 Term.
The term of this Agreement shall commence on the Effective Date hereof and shall
continue for thirty (30) years thereafter, unless said term is otherwise terminated, modified, or
extended as set forth in this Agreement or by mutual consent of the parties hereto, after the
satisfaction of all applicable public hearing and related procedural requirements.
1.2 Effective Date.
This Agreement shall be effective, and the obligations of the parties hereunder shall be
effective, as of January 4, 2007, which is the date that Ordinance No. 433 takes effect ("Effective
Date").
1.3 Amendment or Cancellation.
Except as expressly stated to the contrary herein, this Agreement may be amended or
canceled in whole or in part only by mutual consent of the parties and in the manner provided for
in Government Code Section 65867-65868 and the City's Development Agreement Ordinance.
Notwithstanding the foregoing, in the event that one or more Parcels are under different
ownership at some time during the Term hereof, the City and the then -owner of any Parcel may
amend the terms of this Development Agreement and the Development Plan with respect to said
Parcel, without obtaining the approval or consent of the owners of the other Parcels.
1.4 Termination.
Unless terminated earlier, pursuant to the terms hereof, this Agreement shall
automatically terminate and be of no further effect upon the expiration of the Term of this
Agreement as set forth in Section 1.1. Termination of this Agreement, for any reason, shall not,
by itself, affect any right or duty arising from entitlements or approvals set forth under the
Development Plan, and shall have no effect on the obligations imposed under the City
Declaration of CC&Rs.
Notwithstanding anything herein to the contrary, in the event the "Initial Escrow" (as that
term is defined in the DDA) fails to close within the time period set forth in the DDA, as such
time may be extended pursuant to the terms of the DDA, this Agreement shall automatically
terminate. Within 30 days after the opening of the Initial Escrow, Developer shall deliver to the
Escrow Officer, in a form acceptable to the City Attorney and the "Title Company" (as that term
is defined in the DDA), a quitclaim deed, releasing of all of Developer's interest in this
Agreement in a form which may be recorded (the "Quitclaim") in the event that the Initial
Escrow fails to close within the time set forth in the DDA, as such time may be extended
pursuant to the terms of the DDA (the "Initial Escrow Closing Date"). In such event, within ten
(10) days after the Initial Escrow Closing Date, Developer agrees to execute and submit to the
Title Company or the City joint escrow instructions authorizing the Escrow Officer to record the
Quitclaim. The Developer and City agree to execute and record such additional document(s) as
the Title Company reasonably requires to remove this Agreement of record.
882/015610-0084
750537.08 a12/01/06 -3-
If the Initial Escrow does close, but one or more of the subsequent escrows described in
the DDA fail to close within the time period set forth in the DDA, as such time may be extended
pursuant to the terms of the DDA, this Agreement shall automatically terminate with regard to
the Parcels involved in the escrow or escrows which failed to close, and Developer and City
agree to execute and record such document(s) as the Title Company reasonably requires to
remove this Agreement of record with respect to such Parcels.
1.5 Definitions.
1.5.1 "Agency" shall have the meaning ascribed in Recital C hereof.
1.5.2 "Authorized Manager" shall have the meaning ascribed in Section 3.1
hereof.
1.5.3 "Black Box Parcel' shall mean that certain real property designated as
Lot 4 on the Parcel Map. The Black Box Parcel is comprised of approximately .78 acres.
1.5.4 `Boutique Hotel Parcel' shall mean that certain real property designated
as Lot 19 on the Parcel Map. The Boutique Hotel Parcel is comprised of approximately
13.79 acres. The Boutique Hotel Parcel may be subdivided into two or more legal
parcels after the Effective Date. In such event, when used herein, the terms "Boutique
Hotel Parcel' shall refer to all such legal parcels.
1.5.5 "City" shall mean the City of La Quinta, a California municipal
corporation and charter city organized and existing under the Constitution of the State of
California.
1.5.6 "City Declaration of CC&Rs" shall have the meaning ascribed in
Section 3.3.1 hereof.
1.5.7 "Conditions of Approval' shall have the meaning ascribed in Recital C
hereof.
1.5.8 "Condominium Hotel Unit' means a Unit which is sold to a third party
owner, but which, when not in use by such owner, is part of the inventory of rooms
available for transient occupancy within the Project.
1.5.9 "CV WD" shall have the meaning ascribed in Section 3.6 hereof.
1.5.10 "DDA" shall have the meaning ascribed in Recital C hereof.
1.5.11 "Developer" shall mean LDD SilverRock, LLC, a Delaware limited
liability company.
1.5.12 "Developer CC&Rs" shall have the meaning ascribed in Section 3.3.2
hereof.
i
1.5.13 "Development Agreement Act' shall have the meaning ascribed in
Recital A hereof.
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1.5.14 "Development Agreement Ordinance" shall have the meaning ascribed
in Recital B hereof.
hereof.
1.5.15 "Development Plan" shall have the meaning ascribed in Recital C
1.5.16 "DHR" shall have the meaning ascribed in Section 3.1 hereof.
1.5.17 "Effective Date" shall have the meaning ascribed in Section 1.2 hereof.
1.5.18 "Existing Development Regulations" shall have the meaning ascribed in
Section 2.1 hereof.
1.5.19 "Fee Transfer Release Date" shall have the meaning ascribed in Section
7.1.1 hereof.
1.5.20 "Four Star Quality" means that the applicable component of the Project
offers and provides the services, facilities and amenities listed in Exhibit "C", which is
attached hereto and incorporated herein by this reference.
1.5.21 "Fractional Unit' means a Unit that is either (a) a condominium, the
ownership of which is divided into multiple fractional interests, including, without
limitation, timeshare interests, each of which can either be owned by a separate owner or
by single owner, and each of which gives such owner the right to use such Unit for a
different period of time; or (b) a Unit that is owned in fee by the Developer, DHR, or a
successor in interest that is authorized or permitted pursuant to Section 7.1 hereof, and in
which memberships are sold to third parties giving such parties the right to use and
occupy the Unit for certain periods of time.
1.5.22 "Golf Casitas Parcel' shall mean that certain real property designated as
Lot 11 on the Parcel Map. The Golf Casitas Parcel is comprised of approximately eight
and sixty-three one hundredths (8.63) acres.
1.5.23 "Hotel Unit' means the Units in the Project that will be owned in fee by
Developer or any successor authorized pursuant to Section 7.1.1 hereof and managed by
DHR or any successor hotel management entity authorized or approved by the City
pursuant to Section 7.1.2 hereof. None of the Hotel Units may be sold as Condominium
Hotel Units or as Fractional Units.
1.5.24 "Initial Escrow Closing Date" shall have the meaning ascribed in
Section 1.4 hereof.
1.5.25 "Lake Casitas Parcel' shall mean that certain real property designated as
Lot 23 on the Parcel Map. The Lake Casitas Parcel is comprised of approximately 3.82
acres.
1.5.26 "Lowe Enterprises" means Lowe Enterprises, Inc., a California
corporation, which is an affiliate of Developer.
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1.5.27 "Management Transfer" shall have the meaning ascribed in Section
7.1.2 hereof.
1.5.28 "Management Transfer Release Date" shall have the meaning ascribed
in Section 7.1.2 hereof.
1.5.29 "New Laws" shall have the meaning ascribed in Section 2.1 hereof.
1.5.30 "Operating Covenant Release Date" shall have the meaning ascribed in
Section 3.1.7 hereof.
1.5.31 "Parcel' shall mean any of the Boutique Hotel Parcel, Black Box Parcel,
Resort Hotel Parcel, Resort Retail Village Parcel, Golf Casitas Parcel, or Lake Casitas
Parcel.
1.5.32 "Parcel Map" means Parcel Map No. 33367, which has been prepared
by the Agency for recordation in the Official Records of Riverside County, California,
prior to or concurrently with the closing of the Initial Escrow. A copy of the Parcel Map
is attached to the DDA as Attachment No. 11.
1.5.33 "Performance Audit' shall have the meaning ascribed in Section 3.1
hereof.
1.5.34 "Performance Consultant' shall have the meaning ascribed in Section
3.1 hereof.
1.5.35 "Performance Default Payment' shall have the meaning ascribed in
Section 3.1 hereof.
1.5.36 "Phase of Development' shall mean the component of the Project to be
constructed on a particular Parcel, as further described in the DDA.
1.5.37 "Project' shall have the meaning ascribed in Recital C hereof.
1.5.38 "Project Site Development Permits" shall have the meaning ascribed in
Recital C hereof.
1.5.39 "Quitclaim" shall have the meaning ascribed in Section 1.4 hereof.
1.5.40 "Ranch Villas Parcel" means that certain real property designated as Lot
22 on the Parcel Map. The Ranch Villas Parcel is comprised of approximately 2.43
acres.
1.5.41 "Reference Date" shall have the meaning ascribed in the preamble
hereof.
1.5.42 "Resort Hotel Parcel' means that certain real property designated as Lot
3 on the Parcel Map. The Resort Hotel Parcel is comprised of approximately 19.65 acres.
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1.5.43 "Resort Retail Village Parcel" means that certain real property
designated as Lot 5 on the Parcel Map. The Resort Retail Village Parcel is comprised of
approximately 11.88 acres.
1.5.44 "SilverRock Resort Area" means the real property included in and
covered by the Specific Plan.
1.5.45 "Site" shall have the meaning ascribed in Recital C hereof.
1.5.46 "Specific Plan" shall have the meaning ascribed in Recital C hereof.
1.5.47 "Term" shall have the meaning ascribed in Section 1.1 hereof.
1.5.48 "Transfer" shall have the meaning ascribed in Section 7.1.1 hereof.
1.5.49 "Transient Occupancy Tax" shall have the meaning ascribed in Chapter
3.24 of the La Quinta Municipal Code.
1.5.50 "Unit" shall mean one of the approximately six hundred eighty (680)
guest units comprising the Project. All Units shall be developed as Condominium Hotel
Units, Fractional Units, and/or Hotel Units, and all such development shall be in
accordance with the requirements of the Specific Plan.
1.5.51 "Updated Mitigated Negative Declaration" shall have the meaning
ascribed in Recital C hereof.
2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF
THE PROJECT
2.1 Right to Develop.
Subject to the terms, conditions, and covenants of this Agreement, Developer's right to
develop the Project in accordance with the Development Plan (and subject to the Conditions of
Approval) shall be deemed vested upon approval of all of the components that comprise the
Development Plan, which vesting shall expire upon the earlier of the following occurrences: (a)
termination of this Agreement; (b) termination of the DDA; (c) an uncured material default by
Developer of this Agreement or of the DDA; or (d) as to a particular Phase of Development, or a
particular Parcel, the earlier of the final approved City inspection of the completed development
of such Phase of Development or Parcel, or the issuance by City of a final certificate of
occupancy for such Phase of Development or Parcel. Except for the expiration set forth in clause
(a) of the preceding sentence, the expiration of the vesting right set forth in the preceding
sentence shall not terminate the obligations of Developer under this Agreement, nor shall the
expiration of said vesting right cancel or terminate any recorded City Declaration of CC&Rs,
regardless of the expiration of clause (a) above. Notwithstanding anything in this Agreement to
the contrary, the Site and the Project shall remain subject to:
(i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of
the City and its City Council, Planning Commission, and all other City boards, commissions, and
committees existing on the Effective Date of this Agreement, including, without limitation,
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Section 9.140.080 of the La Quinta Municipal Code (collectively, the "Existing Development
Regulations");
(ii) all amendments or modifications to Existing Development Regulations
after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans,
policies, and guidelines of the City and its City Council, Planning Commission, and all other
City boards, commissions, and committees enacted or adopted after the Effective Date of this
Agreement (collectively, "New Laws"), except such New Laws which would prevent or
materially impair Developer's ability to develop the Project in accordance with the Development
Plan, and as to such New Laws that would prevent or materially impair Developer's ability to
develop the Project, they will not apply to the Project unless such New Laws are: (A) adopted
by the City on a City-wide basis and applied to the Site in a non-discriminatory manner and are
necessary to protect the public's health and safety and do not result in a moratorium on
development of the Site, (B) required by a non -City entity to be adopted by or applied by the
City (or if optional the failure to adopt or apply such non -City law or regulation would cause
City to sustain a loss of funds or loss of access to funding or other resources), or (C) New Laws
the City expressly reserves the right to apply under this Agreement, including but not limited to
those in Sections 2.2 and 3.7;
(iii) all subsequent development approvals and the conditions of approval
associated therewith, including but not limited to Site Development Permits and building
permits,
(iv) the payment of all fees or exactions in the categories and in the amounts as
required at the time such fees are due and payable which may be at the time of issuance of
building permits, or otherwise as specified by applicable law, as existing at the time such fees are
due and payable, and
(v) the reservation or dedication of land for public purposes or payment of
fees in lieu thereof as required at the time such reservations or dedications or payments in lieu
are required under applicable law to be made or paid.
2.2 Additional Applicable Codes and Regulations
Notwithstanding any other provision of this Agreement, City also reserves the right to
apply the following to the Site and to the development of the Project:
2.2.1 Building, Electrical, Mechanical, Fire and similar building codes based
upon uniform codes adopted in, or incorporated by reference into, the La Quinta
Municipal Code, as existing on the Effective Date of this Agreement or as may be
enacted or amended thereafter, so long as they are applied to the Project in a
nondiscriminatory manner.
2.2.2 In the event of fire or other casualty requiring reconstruction of more
than fifty (50%) percent of any building previously constructed hereunder, nothing herein
shall prevent the City from applying to such reconstruction all requirements of the City's
Building, Electrical, Mechanical, Fire, and similar building codes based upon uniform
codes adopted in, or incorporated by reference into, the La Quinta Municipal Code, solely
to the extent applicable to all development projects in the City. ti 4
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2.2.3 This Agreement shall not prevent the City from establishing any new
City fees, including new development impact fees, or increasing any existing City fees,
including existing development impact fees, including but not limited to the resort fees
described in and required pursuant to the City Declaration of CC&Rs, and to apply such
new or increased fees to the Project or applicable portion thereof where such new or
increased fees may be charged, so long as such fees are applicable City-wide.
2.3 Permitted Density, Height and Use Limitations.
The permitted uses, density and intensity of use, location of uses, maximum height and
size of proposed buildings, minimum setbacks, and other standards applicable to the Project shall
be those set forth in the Development Plan.
2.4 Developer Impact Fees.
For purposes of calculating required Developer Impact Fees, all Units in the Project shall
be deemed to be, and shall pay fees as, a hotel project, and shall not be treated as, nor charged
Developer Impact Fees as, residential units.
3.0 DEVELOPER'S OBLIGATIONS
3.1 Development and Operation of the Project.
Developer shall construct the Project on the Site in accordance with the Development
Plan, including, without limitation, all of the timeframes set forth in the DDA. Developer shall
enter into the necessary agreements to ensure that Destination Hotels & Resorts, Inc., a
California corporation ("DHR"), shall initially manage and operate the Phases of Development
developed on the Boutique Hotel Parcel, the Resort Hotel Parcel, the Lake Casitas Parcel, the
Golf Casitas Parcel, and the Ranch Villas Parcel all in accordance with the requirements of this
Section 3.1. Notwithstanding anything herein to the contrary, until the Management Transfer
Release Date for each Phase of Development that includes Units, DHR or a successor entity
authorized pursuant to Section 7.1.2 (DHR or such permitted successor entity, an "Authorized
Manager") shall retain full management and operational control over all components of such
Phase of Development. The Authorized Manager of the hotel and Units to be developed on the
Resort Hotel Parcel shall also be the Authorized Manager for the Units to be developed on the
Golf Casitas Parcel and the Lake Casitas Parcel. The Authorized Manager of the hotel and Units
to be developed on the Boutique Hotel Parcel shall also be the Authorized Manager for the Units
to be developed on the Ranch Villas Parcel, regardless of whether the Boutique Hotel Parcel is
subsequently subdivided into two or more Parcels. Developer, on behalf of itself and any
Authorized Manager, covenants and agrees that each of the Phases of Development that include
Units shall, upon its completion, be operated in a Four Star Quality condition until the twentieth
(201h) anniversary of the date the Agency issues a Release of Construction Covenants for such
Phase of Development (the "Operating Covenant Release Date"). No more than once per year
after completion of any of the Phases of Development that include Units, the City may select an
independent consultant (the "Performance Consultant") to perform a quality audit of such
Phase(s) of Development for purposes of determining that the applicable Phase of Development
is operating at a Four Star Quality (the "Performance Audit"). The then -owner of the applicable
n
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Phase of Development shall reimburse the City for the reasonable costs of the Performance
Audit. In the event that the Performance Audit concludes that the Phase of Development is not
operating at a Four Star Quality, Developer shall pay to the City the sum of One Thousand
Dollars ($1,000) per day, as liquidated damages (the "Performance Default Amount"), for each
day that passes until the items noted in the Performance Audit have been corrected, as
determined by the Performance Consultant. All of the costs and fees charged by the
Performance Consultant for any follow-up inspections shall be paid by Developer.
LIQUIDATED DAMAGES. IF THE PERFORMANCE AUDIT CONCLUDES THAT A
PHASE OF DEVELOPMENT IS NOT OPERATING AT A FOUR STAR QUALITY,
THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, CITY AND DEVELOPER AGREE THAT CITY
WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT BY DEVELOPER,
WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF
NOT IMPOSSIBLE, TO ASCERTAIN. CITY AND DEVELOPER, IN A REASONABLE
EFFORT TO ASCERTAIN WHAT CITY'S DAMAGES WOULD BE IN THE EVENT
OF SUCH DEFAULT BY DEVELOPER, HAVE AGREED BY PLACING THEIR
INITIALS BELOW, THAT CONSIDERING ALL OF THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE
RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO CITY THAT
REASONABLY COULD BE ANTICIPATED, INCLUDING WITHOUT LIMITATION
THE POTENTIAL LOSS OF TAX REVENUE TO THE CITY, AND THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR
INCONVENIENT, THE PERFORMANCE DEFAULT AMOUNT SHALL BE DEEMED
TO CONSTITUTE A REASONABLE ESTIMATE OF CITY'S DAMAGES UNDER THE
PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN THE EVENT OF AND FOR SUCH DEFAULT BY DEVELOPER,
DEVELOPER SHALL BE REQUIRED TO PAY TO CITY THE PERFORMANCE
DEFAULT AMOUNT AS LIQUIDATED DAMAGES AND AS CITY'S SOLE DAMAGE
REMEDY AGAINST DEVELOPER FOR A DEFAULT UNDER THIS SECTION 3.1;
PROVIDED, HOWEVER, THAT CITY RETAINS AND RESERVES THE RIGHT TO
EXERCISE ANY OTHER LEGAL OR EQUITABLE REMEDIES AVAILABLE TO
CITY HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO BRING
AN ACTION FOR SPECIFIC PERFORMANCE. CITY AND DEVELOPER
SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY
THEIR SIGNATURES BELOW:
CITY
DEVELOPER
3.2 Conditions of Approval; Mitigation Monitoring Program.
Developer shall comply with all Conditions of Approval. The Developer shall also
comply with the mitigation monitoring program set forth in Exhibit "D" attached hereto, which
includes and incorporates the mitigation measures of the Updated Mitigated Negative
Declaration to ensure that significant environmental effects will be mitigated or avoided (the
"Mitigation Monitoring Program").
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3.3 Declaration of Covenants, Conditions and Restrictions.
3.3.1 Recordation of City Declaration of CC&Rs. As one of the Agency's
conditions to closing under the DDA for any Parcel that will be developed with Condominium
Hotel Units and/or Fractional Units, Developer shall have entered into with the City and
recorded against the underlying Parcel a Declaration of Covenants, Conditions and Restrictions
in the form attached hereto and incorporated herein as Exhibit "E" (a "City Declaration of
CC&Rs"), the covenants of which shall bind all of the Parcels on which Units will be developed
and each and every Condominium Hotel Unit, Fractional Unit, and Hotel Unit developed thereon
in perpetuity and shall survive the termination of this Agreement.
3.3.2 Recordation of Developer CC&Rs. Prior to and as a condition to the
City's issuance of a temporary or final certificate of occupancy for any Parcel that will be
developed with Condominium Hotel Units and/or Fractional Units, Developer shall have
submitted to City, obtained City's approval of, and recorded against the underlying Parcel, a
declaration of covenants, conditions, and restrictions that (i) establishes a homeowners'
association, (ii) is necessary to create a condominium regime for the condominiums described on
the Condominium Plan to be recorded in accordance with all applicable laws; (iii) clearly sets
forth the maintenance obligations of the owners of the Condominium Hotel Units and Fractional
Units; (iv) sets forth the obligations of the owners of the Condominium Hotel Units and
Fractional Units to pay certain resort fees, as further set forth in the City Declaration of CC&Rs,
and requires all such resort fees to be paid and brought current prior to any sale by the owner
thereof, and (v) includes a disclosure regarding the public ownership and control of the existing
golf course and any future golf course that may be developed in the SilverRock Resort Area and
a statement that Developer does not and cannot guarantee that the City will not make changes to
such golf course(s) or change the use of the underlying real property (the "Developer CC&Rs").
The Developer CC&Rs shall provide that the City is a third party beneficiary thereof with the
right, but not the obligation, to enforce the terms thereof which are required hereby, and shall
require the written approval of the City prior to any amendments thereto to any of the provisions
which are required hereby.
3.4 Sign Agreements.
As one of Agency's conditions to closing under the DDA for the Boutique Hotel Parcel,
Resort Hotel Parcel, and Resort Retail Village Parcel, Developer shall enter into with the City or
the Agency (as applicable) a signage agreement for such Parcel. Notwithstanding other signage
locations to be determined during the site development permit process, the signage agreement for
the Boutique Hotel Parcel shall provide for signage along Avenue 52, at the entry point to the
development; the signage agreement for the Resort Hotel Parcel shall provide for signage on
Jefferson Street, at the Resort Hotel entry point; the signage agreement for the Resort Retail
Village Parcel shall provide for signage at the corner of Avenue 52 and Jefferson Street,
Avenue 54 and Jefferson Street, and on Avenue 54, at the entry into the SilverRock Resort Area.
3.5 Maintenance Agreements.
As one of Agency's conditions to closing for each Parcel under the DDA, Developer
shall enter into with the City or the Agency (as applicable) a maintenance agreement requiring
the Developer to maintain the Public Improvements located adjacent to such Parcel.
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3.6 Water Agreements.
City has entered into with the Coachella Valley Water District ("CVWD") that certain
Domestic Water and Sanitation Systems Installation and Irrigation Service Agreement dated on
or about June 11, 2005, and recorded in the Official Records of the County of Riverside, as
Instrument No. 2005-0852063, on June 14, 2005 (the "CVWD Agreement"). Pursuant to the
CVWD Agreement, the owner/developer of each Parcel is required to execute and record a
Domestic Water and/or Sanitation Systems Installation Agreement, substantially in the form
attached to the CVWD Agreement as Exhibit C (a "Water Agreement"), prior to obtaining
domestic water service for each said Parcel. As one of Agency's conditions to closing for each
Parcel under the DDA, Developer shall execute and record against such Parcel at the Closing
therefor a Water Agreement.
3.7 Other Fees and Charges; Assessment Appeals.
Nothing set forth in this Agreement is intended to or shall be construed to limit or restrict
the City's authority to impose its existing, or any new or increased, fees, charges, levies, or
assessments for the development of the Site, or to impose or increase, subject to the required
procedure, any taxes applicable to the Site including but not limited to transient occupancy taxes,
provided nothing set forth herein, subject to the following two sentences, is intended or shall be
construed to limit or restrict whatever right Developer might otherwise have to challenge any
fee, charge, levy, assessment, or tax imposed. Developer agrees on behalf of itself and on behalf
of all persons or entities that may own an interest in the Site or the Units in the future that no
action shall be taken, including any assessment appeal, to decrease the assessed value of any of
the Site or any portion thereof below the final assessed value at the time the development of the
Site or separate Parcel thereof is completed. Developer agrees on behalf of itself, and on behalf
of all persons or entities that may own an interest in the Site or the Units in the future that during
the term hereof no action shall be taken to challenge, cancel, reduce, or otherwise negate the
payments required to be made to the City pursuant to the City Declaration of CC&Rs.
Developer shall timely pay all applicable fees, charges, levies, assessments, and special and
general taxes validly imposed in accordance with the Constitution and laws of the State of
California, including without limitation school impact fees in accordance with Government Code
§§ 65995, et seq.
3.8 Dedications and Improvements.
Developer shall offer dedications to the City or other applicable public agency, or
complete those public improvements in connection with the Project, as specified in the
Conditions of Approval.
3.9 Indemnification.
a. The Developer agrees to and shall indemnify, hold harmless, and defend,
the City and the Agency and their respective officers, officials, members, agents, employees, and
representatives, from liability or claims for death or personal injury and claims for property
damage which may arise from the negligent or grossly negligent acts, errors, and/or omissions of
the Developer or its contractors, subcontractors, agents, employees or other persons acting on its
behalf in relation to the Project and/or this Agreement. The foregoing indemnity applies to all
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deaths, injuries, and damages, and claims therefor, suffered or alleged to have been suffered by
reason of the negligent or grossly negligent acts, errors, and/or omissions referred to in this
paragraph, regardless of whether or not the City prepared, supplied, or approved plans or
specifications, or both, and regardless of whether or not the insurance policies referred to in this
Agreement are applicable. hi the event of litigation, the City agrees, at no cost to the City, to
cooperate with the Developer. The Developer shall have the obligation to provide the defense of
the City and/or Agency in the litigation, either by providing for legal counsel or, at the City's or
Agency's option, timely paying the legal costs incurred by the City and or the Agency in the
defense of litigation, even though negligence or gross negligence of the Developer or its
contractors, subcontractors, agents, employees or other persons acting on its behalf has not been
established at the time that the defense is provided.
b. hi the event of any court action or proceeding challenging the validity of
this Agreement or the Development Plan, the Developer shall indemnify, hold harmless, pay all
costs and provide defense for the City in said action or proceeding with counsel chosen by
Developer and reasonably approved by the City. The City shall, at no cost to the City, cooperate
with the Developer in any such defense as Developer may reasonably request. In the event the
Developer fails or refuses to provide such defense of any challenge to this Agreement or the
Development Plan, or any component thereof, City shall have the right not to defend such
challenge, and to resolve such challenge in any manner it chooses in its sole discretion, including
terminating this Agreement.
3.10 Insurance.
Before beginning construction on the Site, the Developer shall cause the insurance
required under this paragraph to be issued and thereafter to be maintained until one (1) year
following the later of (i) the date City issues the last certificate of occupancy needed for the
initial occupancy of the last portion of the Project, or (ii) the date the City signs off on the last
final inspection of the last of the Project improvements.
Developer shall procure and maintain:
A policy of commercial general liability insurance written on a per occurrence basis in an
amount not less than Three Million Dollars ($3,000,000.00) per occurrence and Three Million
Dollars ($3,000,000.00) in the aggregate.
A policy of workers' compensation insurance in such amount as will fully comply with
the laws of the State of California against any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by Developer in the course of carrying
out the work or services contemplated in this Agreement.
A policy of commercial automobile liability insurance written on a per occurrence basis
in an amount not less than Three Million Dollars ($3,000,000.00). Said policy shall include
coverage for owned, non -owned, leased, and hired cars.
The following additional requirements shall apply to all of the above policies of
insurance:
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All of the above policies of insurance shall be primary insurance and, except the
Worker's Compensation insurance, shall name City, Agency, and their respective officers,
officials, members, employees, agents, and representatives as additional insureds, using a pre-
2004 additional insured endorsement (or equivalent). The insurer shall waive all rights of
subrogation and contribution it may have against City, Agency, and their officers, officials,
members, employees, agents, and representatives, and their respective insurers. All of said
policies of insurance shall provide that said insurance may not be materially amended or
cancelled without providing thirty (30) days' prior written notice to City and Agency. In the
event any of said policies of insurance are cancelled, the Developer shall, prior to the
cancellation date, submit new evidence of insurance in conformance with this Section to the City
Manager. Not later than the Effective Date, Developer shall provide the City Manager with
Certificates of Insurance or appropriate insurance binders evidencing the above insurance
coverages and said Certificates of Insurance or binders shall be subject to the reasonable
approval of the City Manager. Upon the request of the City Manager, Developer shall provide
City with complete copies of each policy of insurance required by this Agreement.
The policies of insurance required by this Agreement shall be satisfactory only if issued
by companies (i) licensed and admitted to do business in California, rated "A" or better in the
most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and
only if they are of a financial category Class VII or better, or (ii) authorized to do business in
California, rated "A+" or better in the most recent edition of Best Rating Guide, The Key Rating
Guide, or in the Federal Registry and only if they are of a financial category Class XV.
Notwithstanding the foregoing, in the event that the policies required hereunder are not available
from such insurers at commercially reasonable rates, the City Manager shall have the authority,
in his or her sole and absolute discretion, to waive one or more of such requirements provided
the proposed policies will adequately protect the City's interests hereunder.
City may reasonably require coverage increases, provided that the percentage increase in
coverage shall not be required to exceed the percentage increase in the Consumer Price Index
published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage
Earners and Clerical Workers, Los Angeles -Riverside -Orange County Average, All Items (1984
= 100) (the "Index"), from and after the date of this Agreement, or, if said Index is discontinued,
such official index as may then be in existence and which is most nearly equivalent to said Index
(the "CPI Adjustment"). Unless otherwise approved in advance by the City Manager, the
insurance to be provided by Developer may provide for a deductible or self -insured retention of
not more than Fifty Thousand Dollars ($50,000), with such maximum amount to increase at the
same rate as the periodic increases in the minimum amount of total insurance coverage set forth
above.
Developer agrees that the provisions of this Section shall not be construed as limiting in
any way the extent to which Developer may be held responsible for the payment of damages to
any persons or property resulting from the Developer's activities or the activities of any person
or persons for which the Developer is otherwise responsible.
Developer agrees that the provisions of this Section shall not be construed as limiting in
any way Developer's indemnity obligations set forth in Section 3.9 or the extent to which
Developer may be held responsible for the payment of damages to any persons or property
4�
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resulting from the Developer's activities or the activities of any person or persons for which the
Developer is otherwise responsible.
3.11 Transient Occupancv Tax Obligations. Developer acknowledges and agrees that
all of the Units in the Project are Units in a "Group Hotel," as that term is defined in Section
3.24.020 of the La Quinta Municipal Code, for purposes of collecting and remitting to the City
Transient Occupancy Tax.
4.0 CITY'S OBLIGATIONS
4.1 Scope of Subsequent Review/Confirmation of Compliance Process.
Nothing set forth herein shall impair or interfere with the right of the City to require the
processing of building permits as required by law pursuant to the applicable provisions of the La
Quinta Municipal Code and the provisions of City's Fire Codes and ordinances, Health and
Safety Codes and ordinances, and Building, Electrical, Mechanical, and similar building codes.
Prior to each request for a building permit, Developer shall provide City with a
Compliance Certificate ("Certificate") in a form created by Developer and approved by the City,
which shall describe how all applicable Conditions of Approval have been fully complied with.
The Certificate shall be distributed to relevant City departments for checking the representations
made by Developer on the Certificate.
4.2 Project Approvals Independent.
All approvals required for the Project which may be or have been granted, and all land
use entitlements or approvals generally which have been issued or will be issued by the City with
respect to the Project, constitute independent actions and approvals by the City. If any provision
of this Agreement or the application of any provision of this Agreement to a particular situation
is held by a court of competent jurisdiction to be invalid or unenforceable, or if this Agreement
terminates for any reason, then such invalidity, unenforceability or termination of this Agreement
or any part hereof shall not affect the validity or effectiveness of any such Project approvals or
other land use approvals and entitlements. In such cases, such approvals and entitlements will
remain in effect pursuant to their own terns, provisions, and the Conditions of Approval. It is
understood by the parties to this Agreement that pursuant to existing law, if this Agreement
terminates or is held invalid or unenforceable as described above, such approvals and
entitlements shall not remain valid for the term of this Agreement, but shall remain valid for the
term of such approvals and entitlements.
4.3 Review for Compliance.
The City shall review this Agreement at least once during every twelve (12) month period
following the Effective Date of this Agreement, in accordance with the City's procedures and
standards for such review set forth in the City's Development Agreement Ordinance. During
such periodic review by the City, the Developer, upon written request from City, shall be
required to demonstrate, and hereby agrees to furnish, evidence of good faith compliance with
the terms hereof. The failure of the City to conduct or complete the annual review as provided
herein or in accordance with the Development Agreement Act shall not impact the validity of
this Agreement. If, at the conclusion of the annual review provided for herein, Developer shall
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have been found in compliance with this Agreement, City, through the City's Community
Development Director, shall, at Developer's written request, issue a Certificate of Compliance to
Developer stating that (1) this Agreement remains in full force and effect and (2) Developer is in
compliance with this Agreement. The Certificate of Compliance shall be in recordable form, and
shall contain information necessary to communicate constructive record notice of the finding of
compliance. Developer, at its option and sole cost, may record the Certificate of Compliance.
5.0 DEFAULT; REMEDIES.
5.1 Notice of Default.
In the event of failure by either party hereto substantially to perform any material term or
provision of this Agreement, the non -defaulting party shall have those rights and remedies
provided herein, provided that such non -defaulting party has first provided to the defaulting party
a written notice of default in the manner required by Section 8.1 hereof identifying with
specificity the nature of the alleged default and the manner in which said default may
satisfactorily be cured. A default of Developer under the DDA shall be deemed to be a default
hereunder and shall give rise to all of City's remedies for a default hereunder.
5.2 Cure of Default.
Upon the receipt of the notice of default, the alleged defaulting party shall promptly
commence to cure, correct, or remedy the identified default at the earliest reasonable time after
receipt of the notice of default and shall complete the cure, correction or remedy of such default
not later than five (5) days [or thirty (30) days for non -monetary defaults] after receipt of the
notice of default, or, for such defaults that cannot reasonably be cured, corrected or remedied
within five (5) days [or thirty (30) days for non -monetary defaults], such party shall commence
to cure, correct, or remedy such default within such five (5) day period [or thirty (30) day period
for non -monetary defaults], and shall continuously and diligently prosecute such cure, correction
or remedy to completion.
5.3 City Remedies.
In the event of a default by Developer or its successors in interest of the terms of this
Agreement that has not been cured within the timeframe set forth in Section 5.2 above, or of the
terms of the DDA that has not been cured within the timeframe set forth therein for curing
defaults, the City, at its option, may institute legal action in law or in equity to cure, correct, or
remedy such default, enjoin any threatened or attempted violation, or enforce the terms of this
Agreement; provided, however, that in no event shall City be entitled to consequential damages
for any Developer default. For purposes of this Agreement the term "consequential damages"
shall include, but not be limited to, potential loss of anticipated tax revenues from the Project or
any portion thereof. Furthermore, the City, in addition to or as an alternative to exercising the
remedies set forth in this Section 5.3, in the event of a material default by Developer, may give
notice of its intent to terminate, cancel, or modify this Agreement pursuant to the City's
Development Agreement Ordinance and/or the Development Agreement Act, in which event the
matter shall be scheduled for consideration and review by the City Council in the manner set
forth in the City's Development Agreement Ordinance or the Development Agreement Act.
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5.4 Developer's Exclusive Remedy.
The parties acknowledge that the City would not have entered into this Agreement if it
were to be liable in damages under or with respect to this Agreement or any of the matters
referred to herein including but not limited to the Development Plan, Conditions of Approvals,
the Existing Development Regulations or any future amendments or enactments thereto, or the
Project, except as provided in this Section. Accordingly, Developer covenants on behalf of itself
and its successors and assigns, including the owners of the Units, not to sue the City for damages
or monetary relief for any breach of this Agreement by City or arising out of or connected with
any dispute, controversy, or issue between Developer and City regarding this Agreement or any
of the matters referred to herein including but not limited to the application, interpretation, or
effect of this Agreement, the Development Plan, the Conditions of Approval, the Existing
Development Regulations or any future amendment or enactments thereto, or any land use
permit or approval sought in connection with the development of the Project or any component
thereof, or use of a parcel or any portion thereof, the parties agreeing that declaratory and
injunctive relief, mandate, and specific performance shall be Developer's sole and exclusive
judicial remedies.
6.0 MORTGAGEE PROTECTION: CERTAIN RIGHTS OF CURE
6.1 Encumbrances on the Project Site.
This Agreement shall not prevent or limit the Developer from encumbering the Site or
any portion thereof or any improvements thereon with any mortgage, deed of trust, sale and
leaseback arrangement, or any other form of conveyance in which the Site, or a portion thereof
or interest therein, is pledged as security, and contracted for in good faith and fair value (a
"Mortgage") securing financing with respect to the construction, development, use or operation
of the Project.
6.2 Mortgage Protection.
This Agreement shall be superior and senior to the lien of any Mortgage.
Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid,
diminish, or impair the lien of any Mortgage made in good faith and for value, and any
acquisition or acceptance of title or any right or interest in or with respect to the Site or any
portion thereof by a holder of a beneficial interest under a Mortgage, or any successor or
assignee to said holder (a "Mortgagee") [whether pursuant to foreclosure, trustee's sale, deed in
lieu of foreclosure, lease termination or otherwise] shall be subject to all of the terms and
conditions of this Agreement.
6.3 Mortgagee Not Obligated.
No Mortgagee will have any obligation or duty under this Agreement to perform the
obligations of the Developer or other affirmative covenants of Developer hereunder, or to
guarantee such performance, except that (i) the Mortgagee shall have no right to develop or
operate the Site, and (ii) to the extent that any covenant to be performed by the Developer is a
condition to the performance of a covenant by the City, the performance thereof shall continue to
be a condition precedent to the City's performance hereunder.
862/015610-0084 44 4 2
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6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
City shall, upon written request therefor to the City, deliver to each Mortgagee a copy of
any notice of default given to Developer under the terms of this Agreement, at the same time of
sending such notice of default to Developer. The Mortgagee shall have the right, but not the
obligation, within five (5) days [or thirty (30) days for non -monetary defaults] after the receipt of
such notice from City, to cure, correct, or remedy the default, or, for such defaults that cannot
reasonably be cured, corrected, or remedied within five (5) days [thirty (30) days for non -
monetary defaults], to commence to cure, correct, or remedy the default within such five (5) day
period [or thirty (30) day period for non -monetary defaults], and to continuously and diligently
prosecute such cure to completion. If the default is of a nature which can only be remedied or
cured by such Mortgagee upon obtaining possession of the Site, such Mortgagee shall have the
right to seek to obtain possession with diligence and continuity through foreclosure, a receiver or
otherwise, and shall be permitted thereafter to remedy or cure the default within such time as is
reasonably necessary to cure or remedy said default but in no event more than thirty (30) days
after obtaining possession. If any such default cannot, with diligence, be remedied or cured
within such thirty (30) day period, then such period shall be extended to permit the Mortgagee to
effect a cure or remedy so long as Mortgagee commences said cure or remedy during such thirty
(30) day period, and thereafter diligently pursues and completes such cure.
7.0 TRANSFERS OF INTEREST IN SITE AGREEMENT, OR MANAGEMENT
7.1 Transfers of Interest in Site, Agreement, or Management. The qualifications and
identity of the Developer as the developer and DHR as the operator of high quality commercial
resort developments are of particular concern to the City. Furthermore, the parties acknowledge
that the City has negotiated the terms of this Agreement in contemplation of the development
and operation of the Project on the Site and the property tax increment and Transient Occupancy
Tax revenues to be generated by the operation of the Project on the Site.
7.1.1 Transfers of Interest in Site or Agreement Prior to Agency's Issuance of
a Release of Construction Covenants. Except as provided in this Section 7.1, until the
date the Agency issues a "Release of Construction Covenants" (as that term is defined in
the DDA) for a particular Phase of Development (the "Fee Transfer Release Date"), (1)
no voluntary successor in interest of the Developer shall acquire any rights or powers
under this Agreement with respect to said Phase of Development; (2) the Developer shall
not make any total or partial sale, transfer, conveyance, assignment, or lease of the whole
or any part of the applicable Parcel or the Phase of Development thereon; and (3) no
changes shall occur with respect to the ownership and/or control of Developer or of Lowe
Enterprises, including, without limitation, stock transfers, sales of issuances, or transfers,
sales or issuances of membership or ownership interests, or statutory conversions (any of
the above, a "Transfer"). Prior to the Fee Transfer Release Date for a particular Phase of
Development, the City may approve or disapprove a proposed Transfer in its sole and
absolute discretion.
Notwithstanding the foregoing, City approval of a Transfer prior to the Fee
Transfer Release Date for a particular Phase of Development shall not be required in
connection with any of the following:
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a. The conveyance or dedication of any portion of the Site to an appropriate
governmental agency, or the granting of easements or permits to facilitate construction of
the Project.
b. Any assignment for financing purposes (subject to such financing being
permitted pursuant to Section 311 of the DDA), including the grant of a deed of trust to
secure the funds necessary for land acquisition, construction and permanent financing of
the Project or of a Phase of Development.
C. The Transfer by Developer to an entity whose managing member,
manager, or managing general partner is Developer or an entity in which Lowe
Enterprises owns and controls at least fifty-one percent (51 %), and has day-to-day control
of the development of the Phase of Development.
d. The sale by Developer of Condominium Hotel Units to third party buyers.
C. The sale, transfer or issuance of stock or membership interests of Lowe
Enterprises so long as a minimum of fifty-one percent (51%) of the outstanding and
voting stock, membership and/or ownership interests of Lowe Enterprises, and control of
Lowe Enterprises, is held, directly or indirectly, by Robert J. Lowe or his estate or a
member of his family.
7.1.2 Transfers of Operational Obligations. Notwithstanding anything in
Section 7.1.1 to the contrary, until the tenth (10a) anniversary of the date the Agency
issues a Release of Construction Covenants for each Phase of Development (the
"Management Transfer Release Date"), (i) neither Developer nor DHR (or any permitted
successor in interest) shall make any Transfer of the operational and/or managerial
control, including, but not limited to, financial and managerial decisionmaking, of such
Phase of Development; and (ii) no changes shall occur with respect to the ownership
and/or control of DHR, or of Lowe Enterprises, including, without limitation, stock
transfers, sales of issuances, or transfers, sales or issuances of membership or ownership
interests, or statutory conversions (either of the above, a "Management Transfer")
without the prior written approval of the City; provided, however, that transfers of the
stock, ownership and/or membership interests of DHR or of Lowe Enterprises may be
made so long as a minimum of fifty-one percent (51%) of the outstanding and voting
stock, ownership, and/or membership interests of DHR and of Lowe Enterprises is held,
directly or indirectly, by Robert J. Lowe or his estate or a member of his family.
Notwithstanding the foregoing, City approval shall not be required for a Management
Transfer to any of the entities listed on Exhibit "F," which is attached hereto and
incorporated herein by this reference; provided, however, that if any of the entities on
Exhibit "F" operate under a "flag" name, the flag shall be a flag that operates at a Four
Star Quality. To the extent that the operating character or quality of any of the entities
listed on Exhibit "F" substantially changes between the Effective Date and the date of the
proposed Management Transfer, Developer or Developer's successor in interest shall
demonstrate that the listed entity satisfies the requirements for transferee entities not
listed on Exhibit "F", as outlined below in this Section 7.1.2. No Management Transfer
or Transfers, individually or collectively, shall be made that results in different entities
operating and managing the hotels and Units on the Resort Hotel Parcel, the Lakes
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Casitas Parcel, and the Golf Casitas Parcel, and no Management Transfer or Transfers,
individually or collectively, shall be made that results in different entities operating and
managing the hotels and Units on the Boutique Hotel Parcel, regardless of whether the
Boutique Hotel Parcel is subdivided into two or more legal parcels, and the Ranch Villas
Parcel. City shall not unreasonably withhold, delay, or condition approval of a proposed
Management Transfer to an entity that is not listed on Exhibit "F", provided that
Developer or Developer's successor in interest demonstrates that the proposed operator
has experience and reputation for operating luxury hotels at a Four Star Quality
equivalent to the experience and reputation of DHR, Rosewood Hotels and Resorts, Vail
Resorts, Inc., Loews Corporation, and Kimpton Hotel and Restaurant Group, LLC.
Developer or Developer's successor in interest shall provide such information as may
reasonably requested by the City to enable the City to review and approve (or disapprove)
any proposed operator, and shall reimburse the City for the City's costs incurred in
considering any such request.
7.1.3 Assignment and Assumption of Obligations. Except for the sale of
individual Condominium Hotel Units, any Transfer by Developer of any interest in the
Site or of any interest in this Agreement and all Management Transfers shall require the
execution of an assignment and assumption of obligations in a form reasonably
acceptable to the City Attorney. Transfers of Developer's rights and/or obligations under
this Agreement made without an City -approved assignment and assumption agreement
are null and void. This requirement shall apply regardless of whether City approval is
required for the Transfer. Developer agrees that at least thirty (30) days prior to such
Transfer it shall give written notice to City of such assignment and satisfactory evidence
that the assignee has assumed in writing through an assignment and assumption
agreement all applicable obligations under this Agreement. A party proposing to assign
its obligations under this Agreement (i) shall remain liable for the obligations until and
unless the City has received a fully executed assignment and assumption agreement in the
form approved by the City Attorney, and (ii) shall remain liable for any default hereunder
that occurred prior to the effective date of the assignment. Developer or Developer's
successor in interest shall reimburse the City for any costs (other than staff time) the City
incurs in reviewing any assignment and assumption agreement required hereunder.
7.2 Successors and Assigns.
All of the terms, covenants and conditions of this Agreement shall be binding upon the
Developer and its permitted successors and assigns. Whenever the term "Developer" is used in
this Agreement, such term shall include any other permitted successors and assigns as herein
provided, and the term "Developer shall only mean the owner of a Phase of Development from
time to time during the period of such entity's ownership, provided that the procedures set forth
in this Agreement for that entity's acquisition and or disposition of the ownership have been
followed, including, without limitation, the provisions of Section 7.1.
7.3 Assignment by City.
City may assign or transfer any of its rights or obligations under this Agreement with the
approval of the Developer, which approval shall not be unreasonably withheld.
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8.0 MISCELLANEOUS
8.1 Notices.
All notices permitted or required hereunder must be in writing and shall be effected by (i)
personal delivery, (ii) first class mail, registered or certified, postage fully prepaid, or (iii)
reputable same -day or overnight delivery service that provides a receipt showing date and time
of delivery, addressed to the following parties, or to such other address as any party may from
time to time designate in writing in the manner as provided herein:
To City: City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Attn: City Manager
Telephone: (760) 777-7031
Facsimile: (760) 777-7101
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson
Telephone: (714) 641-5100
Facsimile: (714) 546-9035
To Developer: LDD SilverRock, LLC
74-001 Reserve Drive
Indian Wells, California 92210
Attn: Theodore R. Lennon, Jr.
Telephone: (760) 674-2200
Facsimile: (760) 779-1646
With a copy to: Manatt, Phelps & Phillips, LLP
11355 W. Olympic Boulevard
Los Angeles, CA 90064
Attn: Timi Anyon Hallem
Telephone: (310) 312-4217
Facsimile: (310) 312-4224
Any written notice, demand or communication shall be deemed received immediately if
personally delivered or delivered by delivery service to the addresses above, and shall be deemed
received on the third day from the date it is postmarked if delivered by registered or certified
mail.
8.2 Binding Effect.
Except as otherwise provided in this Agreement, this Agreement, and all of the terms and
conditions hereof, shall be binding upon and inure to the benefit of the parties, any subsequent
owner of all or any portion of the Project or the Site, and their respective assigns, heirs or
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750537 08 a12/01/06
successors in interest, whether or not any reference to this Agreement is contained in the
instrument by which such person acquired an interest in the Project or the Site.
8.3 Independent Entity.
The parties acknowledge that, in entering into and peribrming this Agreement, each of
the Developer and the City is acting as an independent entity and not as an agent of the other in
any respect. No joint venture is formed by this Agreement.
8.4 Agreement Not to Benefit Third Parties.
This Agreement is made for the sole benefit of the parties, and no other person shall be
deemed to have any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action of any kind on
this Agreement nor be deemed to be a third party beneficiary under this Agreement.
Notwithstanding the immediately preceding sentence, the Agency shall be an intended third
party beneficiary to this Agreement.
8.5 Covenants.
The provisions of this Agreement shall constitute mutual covenants which shall run with
the land comprising the Site for the benefit thereof, and for the benefit of the City's and the
Agency's adjoining properties, and the burdens and benefits hereof shall bind and inure to the
benefit of each of the parties hereto and all successors in interest to the parties hereto for the term
of this Agreement.
8.6 Nonliability of City Officers and Employees.
No official, officer, employee, agent or representative of City, acting in his/her official
capacity, shall be personally liable to Developer, or any successor or assign, for any loss, costs,
damage, claim, liability, or judgment, arising out of or in connection to this Agreement, or for
any act or omission on the part of City.
8.7 Covenant Against Discrimination.
Developer and City covenant and agree, for themselves and their respective successors
and assigns, that there shall be no discrimination against, or segregation of, any person or group
of persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry, or any other impermissible classification, in the performance of this Agreement.
Developer shall comply with the Americans with Disabilities Act of 1990, as amended (42
U.S.C. §§ 12101, et seq.).
8.8 Amendment of Agreement.
This Agreement may be amended from time to time by mutual consent of the original
parties or such party to which the Developer assigns all or any portion of its interest in this
Agreement, in accordance with the provisions of the City's Development Agreement Ordinance
and Government Code Sections 65867 and 65868. Developer shall be required to reimburse City
for all costs City incurs in negotiating, preparing, and processing any such alterations, changes,
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or modifications. In connection with any request for an alteration, change or modification,
Developer shall deposit with the City the sum of Ten Thousand Dollars ($10,000).
Notwithstanding the foregoing, the City Manager shall have the discretion to authorize a lesser
deposit, in the event he or she determines the proposed alteration, change or modification is
minor. In the event the funds on deposit are depleted, City shall, notify Developer of the same,
and Developer shall deposit with the City an additional Five Thousand. Dollars ($5,000) to
complete processing of the requested alteration, change or modification. Developer shall make
additional deposits to City, as needed, pursuant to the foregoing process, until the requested
alteration, change, or modification is finalized. Within sixty (60) days after such alteration,
change or modification is finalized, City shall reimburse the Developer any unused sums.
8.9 No Waiver.
No waiver of any provision of this Agreement shall be effective unless in writing and
signed by a duly authorized representative of the party against whom enforcement of a waiver is
sought and referring expressly to this Section. No delay or omission by either party in exercising
any right or power accruing upon non-compliance or failure to perform by the other party under
any of the provisions of this Agreement shall impair any such right or power or be construed to
be a waiver thereof, except as expressly provided herein. No waiver by either party of any of the
covenants or conditions to be performed by the other party shall be construed or deemed a
waiver of any succeeding breach or nonperformance of the same or other covenants and
conditions hereof.
8.10 Severability.
If any term, provision, covenant or condition of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this
Agreement shall continue in full force and effect, to the extent that the invalidity or
unenforceability does not impair the application of this Agreement as intended by the parties.
8.11 Cooperation in Carrying Out Agreement.
Each party shall take such actions and execute and deliver to the other all such further
instruments and documents as may be reasonably necessary to carry out this Agreement in order
to provide and secure to the other party the full and complete enjoyment of its rights and
privileges hereunder.
8.12 Estoppel Certificate.
Any party hereunder may, at any time, deliver written notice to any other party requesting
such party to certify in writing that, to the best knowledge of the certifying party, (i) this
Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement
has not been amended or modified either orally or in writing, or if so amended, identifying the
amendments, (iii) the requesting party is not in default in the performance of its obligations
under this Agreement, or if in default, describing the nature and amount of any such defaults, and
(iv) any other reasonable information requested. A party receiving a request hereunder shall
execute and return such certificate within ten (10) days following approval of the proposed
estoppel certificate by the City Attorney, which approval shalt not be unreasonably withheld or
delayed. The City Manager, Assistant City Manager, and Community Development Director are
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- }
each authorized to sign and deliver an estoppel certificate on behalf of the City. City
acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees.
8.13 Construction.
This terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction that might otherwise apply. As used in this
Agreement, and as the context may require, the singular includes the plural and vice versa, and
the masculine gender includes the feminine and vice versa.
8.14 Recordation.
This Agreement shall be recorded with the County Recorder of Riverside County at
Developer's cost, if any, within the period required by Government Code Section 65868.5.
Amendments approved by the parties, and any cancellation or termination of this Agreement,
shall be similarly recorded.
8.15 Captions and References.
The captions of the paragraphs and subparagraphs of this Agreement are solely for
convenience of reference, and shall be disregarded in the construction and interpretation of this
Agreement. Reference herein to a paragraph or exhibit are the paragraphs, subparagraphs and
exhibits of this Agreement.
8.16 Time.
Time is of the essence in the performance of this Agreement and of each and every term
and condition hereof as to which time is an element.
8.17 Recitals & Exhibits Incorporated; Entire Agreement.
The Recitals to this Agreement, all of the exhibits and attachments to this Agreement, and
the DDA are, by this reference, incorporated into this Agreement and made a part hereof. This
Agreement, including all Exhibits attached hereto, constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement, and this Agreement supersedes all
previous negotiations, discussions and agreements between the parties, and no parole evidence of
any prior or other agreement, other than the DDA, shall be permitted to contradict or vary the
terms hereof.
8.18 Exhibits.
Exhibits "A" — "F" to which reference is made in this Agreement are deemed
incorporated herein in their entirety. Said exhibits are identified as follows:
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A-1 Legal Description of Site
A-2 Site Map
B Depiction of Public Improvements
C Four Star Quality Requirements
D Mitigation Monitoring Program
E Form of City Declaration of CC&Rs
F List of Pre -Approved Operators
8.19 Counterpart Signature Pages.
For convenience the parties may execute and acknowledge this agreement in counterparts
and when the separate signature pages are attached hereto, shall constitute one and the same
complete Agreement.
8.20 Authority to Execute• Representations and Warranties.
Developer warrants and represents that (i) it is duly organized and existing, (ii) it is duly
authorized to execute and deliver this Agreement, (iii) by so executing this Agreement,
Developer is formally bound to the provisions of this Agreement, (iv) Developer's entering into
and performance of its obligations set forth in this Agreement do not violate any provision of any
other agreement to which Developer is bound, and (v) there is no existing or threatened litigation
or legal proceeding of which Developer is aware which could prevent Developer from entering
into or performing its obligations set forth in this Agreement.
8.21 City Approvals and Actions.
Whenever a reference is made in this Agreement to an action or approval to be
undertaken by the City Manager, his or her authorized designee is authorized to act on behalf of
the City unless specifically provided otherwise or the law otherwise requires.
8.22 Governing Law; Litigation Matters.
The internal laws of the State of California shall govern the interpretation and
enforcement of this Agreement without regard to conflicts of law principles. Any action at law
or in equity brought by any party hereto for the purpose of enforcing, construing, or interpreting
the validity of this Agreement or any provision hereof shall be brought in the Superior Court of
the State of California in and for the County of Riverside, or such other appropriate court in said
county, and the parties hereto waive all provisions of law providing for the filing, removal, or
change of venue to any other court. Service of process on City shall be made in accordance with
California law. Service of process on Developer shall be made in any manner permitted by
California law and shall be effective whether served inside or outside of California. In the event
of any action between the parties hereto seeking enforcement of any of the terms of this
Agreement or otherwise arising out of this Agreement, the prevailing party in such litigation
shall be awarded, in addition to such relief to which such party is entitled, its reasonable
attorney's fees, expert witness fees, and litigation costs and expenses.
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8.23 No Brokers.
Each of the City and the Developer represents to the other party that it has not engaged
the services of any finder or broker and that it is not liable for any real estate commissions,
broker's fees, or finder's fees which may accrue by means of this Agreement, and agrees to hold
harmless the other party from such commissions or fees as are alleged to be due from the party
making such representations.
[end — signature page follows]
'82/015610-0084 -26_
750537 08 at 2/01/06
IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as
of the Reference Date.
ATTEST:
City Clerk
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
City Attorney
"CITY"
CITY OF LA QUINTA, a California municipal
corporation
City Manager
"DEVELOPER"
LDD SILVERROCK, LLC,
a Delaware limited liability company
LIM
Its:
.—t
882/015610-0084 _Z7_ �4 a% 4
750537.08 a12/01/06
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , before me,
a Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss
COUNTY OF )
On , before me,
a Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
45:
'82/015610-0084 -28-
750537.08 al2/01/06
EXHIBIT "A-1"
LEGAL DESCRIPTION OF sin
[To be inserted]
4 ,J
882/015610-0084 EXHIBIT A-1
750537.08 a12/01/06
EXHIBIT "A-2"
SITE MAP
[To be inserted]
882/015610-0084 EXHIBIT A-2
150537 08 al2/01/06
EXHIBIT `B"
DEPICTION OF PUBLIC IMPROVEMENTS
[To be inserted]
�2 r /�
`j u
882/01561M084 EXHIBIT B
750537 08 al2/O1106
n NE CM Of to WWtk O MW Or aMa= STAW Or '%Mo M
REVISED TENTATIVE
PARCEL MAP NO. 33367
The following areas depicted on Exhibit '13' shall be sut�ject to a Maintenance
Agreement:
1. The north and south areas adjacent to Lot 'F' (main entry roadway) between
Jefferson Street and the intersection of Lots 'G' and 'H'.
2. The west portion of Lot 'H', south of the main entry and adjacent to Lots 3,
4, and 6.
3 h side of Lot'G' adjacent to Lots 3, 11, and 23.
4. The entirety of Lot 'I' adjacent to Lot 11
b. All lake ff,Qyli,4,gg,adjacent to Lots 3, 5, 11, 19, and 23.
EXHIBIT "C"
FOUR STAR QUALITY REQUIREMENTS
Four -Star Quality under this agreement indicates an outstanding hotel providing the guest
with a luxury experience in a distinctive setting, including expanded amenities and exceptional
service. Guests can expect an exceptional experience, where no less than ninety five (95)
percent of the following detailed characteristics are consistently met or exceeded:
Services Detail
• Staff is well-groomed with professional, neat and well -maintained attire.
• All staff encountered are pleasant and professional in their demeanor.
• Front desk staff are articulate, smile and make eye contact.
• The front desk is staffed twenty-four hours.
• Restaurant on -site serving three meals daily.
• Valet parking is available.
• Baggage assistance is automatic.
• Complimentary newspapers are delivered to room automatically.
• Complete room service is available.
• Workstation is available where guest can access Internet.
• Basic fitness equipment is provided, including treadmills and cycles.
• Written confirmation is automatic or offered, either by mail, fax or e-mail.
• Guests name is used effectively, but discreetly, as a signal of recognition.
• The time from arriving at the reception area until registration is complete does not exceed
five minutes (includes queuing).
• Bed is plush and inviting with oversized or numerous pillows.
• Bedcovers are elegant and stylish and with linens of exceptional quality and comfort.
• All written information is provided on good quality paper or pads, custom -printed or
logoed.
• Bathroom presentation and placement of amenities and linens is thoughtful, careful, and
elegant.
EXHIBIT C
'82/015610-0084 Page 1 of 7
750537 08 al2/01/06 g
• Fresh ice is provided during evening service or at another time during the day.
• Turndown service is automatically provided.
• During turndown service, guest clothing is neatly handled and guest toiletries are neatly
arranged and displayed on a cloth or shelf.
• Room service is delivered within 30 minutes.
• Room service order is delivered within five minutes of quoted time.
• Two hour pressing available
• Same day laundry and dry cleaning is available seven days/week.
• Wake-up call is personalized with guest's name and time of day.
• Wake-up call is delivered within two minutes of requested time.
• Special service desk identified as concierge/guest service is situated apart from
reception/front desk.
• If spa services are present, treatments are begun and ended on schedule, within five
minutes of expected or booked time.
• If spa services are present, during treatment, therapist appears to be genuinely expert,
moving seamlessly through the treatment as described and expected.
Facilities Details
Self parking area is free of debris, good condition; surfaces, curbs, paths.
All outdoor walkways and approaches are well -maintained and cleaned.
• Outdoor awnings, signs, marquees, flags, and plantings are clean and in good condition.
• Public spaces are free of obvious hazards.
• Elevator landings, cars and doors/tracks are clean and in good condition.
• Guest room corridor floors, walls and ceilings are free of debris, marks, and damage.
• All furniture, fixtures and equipment are clean, neat and well -maintained.
• Ashtrays throughout public areas are well -maintained and free of excessive debris.
• Temperature in all interior public areas are maintained in general comfort range.
Public washrooms very hygienic and neat, with well -stocked paper and soap.
• Public washroom fixtures, walls and floors are in very good condition.
EXHIBIT C 4
882/015610-0084 Page 2 Of 7
750537.08 al2/01/06 g
• Meeting rooms are well -signed so that it is easy to find and arrive at a specific room.
• Meeting room doors are in good condition, free of nicks and damage.
• Meeting room interiors are in generally good condition, including walls, floors and
ceiling.
• Lobby provides a comfortable seating area.
• Lobby floors, walls and ceiling are free of debris, marks and damage.
• Lobby areas feature elegant live plants and/or fresh floral displays.
• Notices are professional, matching decor, not "homemade".
• Vending and/or ice machines are located on each guest floor.
• Vending and/or ice areas and equipment are clean, well -lit, and well -maintained.
• Service doors are clean, free of marks and damage, and closed.
• A variety of different sized and appointed rooms available in hotel.
• High quality, varied, and major brand sundry selections are available in an on -site store.
• Suite (separate bedroom and living areas) accommodations are available.
• A dedicated and secure luggage storage area is available.
• Public phones are convenient, and equipped with seats, privacy panels and pad/pens.
• Public washrooms are furnished with upgraded materials and appointments/luxurious
design.
• Televisions feature premium cable TV (two movie channels, two all -news, two financial).
• Pay -Movie selections are available through television.
• Guest room telephones have two lines.
• Guest rooms equipped with data ports (guest can connect laptop to the Internet).
• Direct dial phones with direct long distance dialing are available in each guest room.
• If public phonebook present, it is displayed in attractive cover.
Guest Room Detail
Hardware and hangings (door locks, racks, artwork, etc.) are secure and in good
condition.
• Carpet/floor is free of debris, stains, wear, loose threads, open seams, etc.
EXHIBIT C
882/015610-0084 Page 3 of 7
750537.08 al2/01/06 g
• Walls and ceilings are free of marks, stains and damage.
• Drapes are free of stains, damage; pull easily and hang properly.
• Furniture is free of dust, marks and damage.
• All printed material including collateral, phonebooks and stationery are neat, crisp and
current.
• Drawers and shelves arc clean, free of dust and debris.
• All light bulbs operate; all light fixtures and lamps are in good condition, clean.
• Mirrors and windows are free of smudges and damage throughout.
• If safe is provided, it is clean, functional and convenient.
• Room equipped with accurate, functional clock and radio/stereo.
• Color television works and is equipped with remote control, and is minimum 19".
• All bedding and linens are free of debris, hairs, damage and stains.
• Room heating and air conditioning is easily controlled by guest and is quiet.
• Air is fresh and clean, no stuffiness or odors.
• Sink, tub, shower, toilet, bidet are very clean, free of hairs, stains and discoloration.
• Bathroom tile and grouting is clean, not discolored, cracked or mildewed.
• Faucets and drains operate smoothly and easily.
• Minimum bath linen is present: one bathmat; two each of facecloth, hand towel and bath
towel.
• If robes are provided, they are free of spots, stains and loose threads.
• Guest room door and frame free of marks, scratches and scuffs.
• Comfortable seating for two people (other than bed).
• Guest service directory, pad and pen/pencil present and conveniently placed.
• Enclosed closets (means closets must have doors).
• There are three spacious drawers or enclosed shelves (inside closet).
• A Luggage rack or bench provided; and adequate space to leave suitcase.
• Extra clean and hygienic blanket and pillow provided in room.
• Lighting throughout the room is adequate.
4
EXHIBIT C
882/015610-0084 Page 4 of 7
750537.08 a12/01/06 g
`t L
• The room can be fully darkened.
• Full-length mirror present in room.
• A hairdryer present in room, clean and functional.
• Each guest room has two phones (one could be in the bathroom).
• Comfortable desk and chair are available for working, complete with telephone, data
port, and light.
• Insulated ice bucket, vinyl or better, as well as glass glassware; clean and hygienic are
present in room.
• Minibar is present (defined as selection of several beverages and snacks). It is non auto -
charge, and premium products are attractively displayed.
• Minibar is hygienic, free of spills and damage, all products are sealed, price list present.
• If coffeemaker is present, it is hygienic, and ceramic mugs and napkins are available.
• Pillows are plush and full, no foam.
• Framed artwork or interesting architectural features exist. in room.
• Excellent lighting is provided in bathroom for makeup and shaving.
• Hygienic soap, shampoo and four other bath amenities are provided. Amenities are
presented attractively, thoughtfully (not simply lined up on counter).
• Towels are of absorbent quality, with soft nap and no discoloration.
• Towels are free of spots, stains, tears and obvious frays.
• Guest room is of generous size, and provides ample seating for more than two persons.
• Selection of at least 10 hangers including a variety of bars, clips and padded.
• In -room safe,is present.
• Bed is triple sheeted or features washable duvets.
• Live plants are present in guest rooms.
• Shaving/makeup, lighted magnifying mirror is present.
Specialized Facility Detail
• Pool/beach furniture is clean, hygienic and well -maintained.
• Pool deck or beach/sand is clean and free of excessive debris.
,e,1
EXHIBIT C J
882/015610-0084 Page 5 of 7
750537.08 al2/01/06 g
• Pool deck and tiling are in good condition, free of excessive damage or wear.
• Pool water is clean, free of debris and free of notable odors.
• Pool fittings and equipment (ladders, dive boards) are secure and in good condition.
• If tennis exists on site under same management, court surfaces are in good condition, free
of damage and well -marked.
• Tennis courts and surrounding areas are clean and free of debris.
• Fixtures, nets, lights, fences are well -maintained and good condition.
• If golf exists on site under same management, pro shop/clubhouse interior are clean and
well -maintained; displays and counters neat and tidy.
• Pro shop/clubhouse and surrounding areas are clean with well -maintained appearance.
• Golf carts are clean, well -organized and maintained.
• Rental equipment is clean and good condition, including bags.
• Guest can pick up e-mail and access the Internet from a Business Center workstation.
• Business Center working areas are clean, tidy and professional.
• Comfortable office -style chairs at the Business Center guest workstations.
• All fitness, treatment and relaxation areas are hygienic, neatly organized and maintained.
• Spa reception area is well-defined, neat and professional.
• Fitness equipment is clean, in very good condition, conveniently laid out.
• Fitness/workout area is well -ventilated, with comfortable temperature.
• Fitness equipment is available with personal headphones/televisions.
• Sound system or television provided in fitness/workout areas.
• Towels are provided in locker and fitness areas.
• Grooming area equipped with hairdryers; soap and shampoo conveniently placed.
• All amenities are neatly and professionally presented; very hygienic.
• Locker room, showers, sauna and hot tub extremely clean, hygienic appearance.
• If Business Center is present, a semi -private working area with workstation and telephone
is available for guests.
• If a spa exists on site, robes and slippers or spa sandals are available in variety of sizes,
and they are clean and in good condition.
EXHIBIT C a
882/01SMM084 Page 6 of 7 4 ()
750537.08 a12/01/06 g
• If spa or fitness center exists on site, complimentary amenities to include body lotion,
shower caps, talc/deodorant and combs.
• If spa exists on site, at least two types of massage and either body treatments or facials
are also offered.
• If tennis is available on site, water is available courtside.
• If pool or beach service is present, ample towels are available poolside or at the beach.
• Current newspapers and national -title magazines are provided in fitness and locker areas.
• If spa, treatment rooms are equipped with individually controlled temperature and sound
systems.
ti v
EXHIBIT C
882/015610-0084 Page 7 of 7
750537.08 a12/01/06 g
EXHIBIT "D"
MITIGATION MONITORING PROGRAM
PROJECT MONITORING CHECKLIST
(CEQA Mitigation Measures)
[To be inserted]
882/01561M084 EXHIBIT D
750537.08 al2/01/06
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45
EXHIBIT "E"
FORM OF CITY DECLARATION OF CC&Rs
[See following document]
431
882/015610-0084 EXHIBIT E
750537.08 al2/01/06
EXHIBIT "F"
LIST OF PRE -APPROVED OPERATORS
1. Tishman Hotel Corporation
2. Rosewood Hotels and Resorts, LLC
3. Gemstone Resorts International, LLC
4. Noble House Hotels and Resorts
5. Intercontinental Hotels Group
6. Marriott International, Inc.
7. Starwood Hotels and Resorts Worldwide, Inc.
8. Global Hyatt Corporation
9. Fairmont Raffles Holdings
10. Four Seasons Hotels, Inc.
11. Loews Corporation
12. West Paces Hotel Group
13. Mandarin Oriental Hotel Group
14. The Hong Kong and Shanghai Hotels
15. Vail Resorts, Inc.
16. Hilton Hotels Corporation
17. Ritz Carlton Hotel Company, LLC
18. Kimpton Hotel and Restaurant Group, LLC
'82/015610-00a4 EXHIBIT F
750537 08 a12/01 /06
AGENCY CONSENT TO RECORDATION
THE LA QUINTA REDEVELOPMENT AGENCY HEREBY CONSENTS TO THE
RECORDATION OF THE FOREGOING DEVELOPMENT AGREEMENT AGAINST THE
REAL PROPERTY DESCRIBED IN EXHIBIT "A" TO SAID DEVELOPMENT
AGREEMENT.
LA QUINTA REDEVELOPMENT AGENCY
Its:
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , before me,
a Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0084
750537 08 al2/01/06
OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 1 of 5
REPORT/INFORMATIONAL ITEM: 66
COACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT
Board of Trustees' Meeting
May 9, 2006
all To Order:
resident Perkins called the meeting to order at 6:00 p.m.
ledge of Allegiance:
rustee Laflin led the Pledge of Allegiance.
oil Call:
hose present at roll call: President Perkins, Vice President Fuschetti, Secretary/Treasurer
uran, Trustees Godecke, Laflin, Lock, Marchand, McKay, and Nigosian. Also present were
eneral Manager Donald Gomsi, Assistant to the General Manager David Munro,
dministrative Services Manager Brian Passaro, finance consultant Susan Marie Weber,
dministrative Assistant Anita Jones, Public Information Officer Robert Mann, Operations
lanager James Saulnier, Field Supervisors Phil Boeing, Rodney Chamberlain and Victor Teran,
id Legal Counsel Lisa Copeland. Trustee De Lara arrived at 6:05 p.m. Trustee Steier was
)sent.
Confirmation of Agenda:
Trustee Marchand made the motion to confirm the Agenda. The motion was seconded by
Trustee Laflin and carried unanimously.
Approval of Minutes for April 11 2006 Board Meeting.
Trustee Marchand made the motion to approve the Minutes for the April 11, 2006 Board
Meeting. The motion was seconded by Trustee Godecke and carried unanimously.
Public Comment:
None
Announcements:
President Perkins presented a plaque to Vice President Fuschetti thanking him for his
exemplary service during the President's absence. General Manager Gomsi announced
the new Landscape and Janitorial companies have started. New employees Victor Teran,
RIFA Field Supervisor, and David Munro, Assistant to the General Manager, were
introduced. An inspection was held by the Riverside County Environmental Health,
Hazardous Materials section with a very positive report provided on hazardous materials
storage and record keeping procedures. Additionally, an audit was performed by the
Department of Health Services for the $200,000 grant the District received for West Nile
Virus work. Everything is in order and a full audit will be performed when the fiscal year
is complete. Coachella Valley Association of Governments is having their General
Assembly Dinner on June 26th at the Palm Springs Spa Hotel. Any Trustee interested in
attending should notify the General Manager so that the item can be placed on the June
agenda. General Manager Gomsi reported that he attended the Mosquito and Vector
Control Association of California (MVCAC) Legislative Day and discussed vector issues
4{
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 2 of 5
with Senators Jim Battin and Denise Ducheny, and Assemblymembers Bonnie Garcia,
John Benoit, and Russ Bogh. He also attended the American Mosquito Control
Association (AMCA) Legislative Meeting in Washington, D.C. and met with
representatives from Senator Feinstein's office, Congressman Ken Calvert, Darrell Issa,
Jerry Lewis, Bob Filner, and Congresswoman Mary Bono.
Correspondence:
As in Board Packet. Handouts included a letter from MVCAC and a letter from the
Vector Control Joint Powers Authority.
Trustee Marchand made the motion to approve the Expenditures for April 12-30, 2006
and May 1-9, 2006. The motion was seconded by Trustee De Lara and carried
unanimously.
Committee Reports
A. Finance Committee: Trustee Duran reported that the Committee met and worked
on the proposed 2006/2007 budget which will be discussed later in the Agenda.
B. Rules, Regulations and Procedures Committee: Trustee Nigosian reported that in
the absence of Christine Hammond, who started the committee a year ago, a
revision of the Trustees Manual has been completed. He requested that the
committee members be dismissed from the committee. Trustee Fuschetti
complimented the committee on their hard work in revising the manual. President
Perkins disagreed with disbanding the committee at this time. Trustee Marchand
made a motion to direct staff to provide copies of the manual to the Board of
Trustees and then take an up or down vote at the next meeting on adopting the
manual. The motion was seconded by Trustee Nigosian and carried unanimously.
C. Personnel Committee: Trustee Fuschetti reported that the committee met and
discussed the Finance Administrator position and the draft Organization Chart.
The Committee recommends retaining the original chart with the Finance
Administrator reporting to the Administrative Services Manager. A discussion
ensued.
D. Nomination Committee: Trustee Laflin requested discussing their meeting under
Item 12F.
9. Report of District Activities:
Items are noted in the Manager's Report. Operations Manager Saulnier reported there
were five positive mosquito pools for West Nile Virus at the Northshore marsh habitats.
The week before, the District had started a preliminary precautionary control program of
doing aerial adulticiding in that very area, and applying an aerial larvicide using a long-
term control product. When the report came in, they responded by intensifying the
ground surveillance in the entire marsh habitat, they expanded the aerial adulticiding
program to encompass the six mile linear area which the five traps encompassed, barrier
spraying was done at the Salton Sea Park, and they also treated Adohrs Duck Club. In
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 3 of 5
addition, ground fogging was started. The District hit it with everything they had to
control the possible expansion and magnification of the disease and try to contain it in
that location. A discussion ensued.
Informational Items:
A. Copepods
B. Information on the new Malaria Research and Control Group
Included in Board Packet.
0. Consent Calendar:
A. Approval for the General Manager and Trustees desiring so to attend the Special
District and Local Government Institute Administration Seminar, June 1-2, 2006
in San Diego. Funds to come from Fund 6110.1.200, Conference Expense, and
Fund 6120.1.250, Trustee Support.
Trustee Marchand requested that in the future a "not to exceed" amount be attached to
Consent items. Trustee Marchand made the motion to approve at an amount not to
exceed $7,200. The motion was seconded by Trustee De Lara and carried unanimously.
I. Old Business:
A. Discussion and/or approval to provide $5,000, as the District's portion, to the
Riverside Local Agency Formation Commission (LAFCO) to prepare a study of
Vector Control Sphere of Influence issues within Riverside County from Fund
#2965.1.000, Reserves.
General Manager Gomsi reported that the Sphere of Influence has been discussed with
LAFCO and a study would cost $12,000. They are asking that each of the two districts
pay $5,000 and the County pay $2,000 towards the study. Trustee Laflin made the
motion to approve. The motion was seconded by Trustee Fuschetti and carried
unanimously.
B. Presentation on FY 2004/2005 audit and continuation of discussion on audit.
A presentation was given by Administrative Services Manager Passaro on the 2004/2005
audit. A discussion ensued.
12. New Business:
A. Discussion and approval to incorporate into the FY 2006/2007 Budget the
Research proposals from UC Riverside and UC Davis for an amount not to exceed
$198,864.00 from Fund #8510.1.600, Research Contracts.
Trustee Laflin made the motion to approve. The motion was seconded by Trustee
Marchand and carried with nine (9) approved and one (1) opposed (Marchand). Trustee
Marchand requested that the record reflect he is voting no because he is not satisfied with
the manner in which the information was presented in the report. `_ 47.
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 4 of 5
B. Approval of Resolution No. 2006-02 clarifying per diem payment and expense
reimbursement to Trustees and adoption of ethics training requirements.
Legal Counsel Copeland reported that AB1234 was adopted to require mandatory ethics
training. Two things required by the law are (1) a Resolution that establishes a
reimbursement policy and (2) the Ethics and Reimbursement Policy itself. New in the
law are two hours of ethics training, advance approval of trips by the Board to be eligible
for reimbursement, use of District forms required in order to request reimbursement,
expenses be in line with the Internal Revenue Service requirements, and a report to the
Board be made on any trainings attended. Trustee Laflin made the motion to approve.
The motion was seconded by Trustee McKay and carried unanimously.
C. Approval of Resolution No. 2006-03 revising "Line Item" expenditures for the
annual budget for fiscal year 2005/2006.
Trustee De Lara made the motion to approve. The motion was seconded by Trustee
Marchand and carried unanimously.
D. Presentation and discussion of draft budget for Fiscal Year 2006/2007.
Administrative Services Manager Passaro reported that the draft has been recommended
for approval by the Finance Committee. Trustee Lock asked about putting actuals in the
budget that were not used in the previous year. A discussion ensued. Trustee Marchand
requested more updated figures be provided at the next Board meeting. He also stated
that it would be helpful if the Finance Committee prepared a formal budget presentation
for the next Board meeting before calling for a vote.
E. Discussion and approval of organizational changes of District staff.
Trustee Fuschetti reported the Personnel Committee thinks that one additional person
reporting directly to the General Manager is too many. They believe there should not be
more than five. The Committee recommends keeping the current Organizational Chart in
tact. A discussion ensued. Trustee Marchand made a motion to commit and to give the
Personnel Committee direction to return to the next meeting with a written report and
recommendations. The motion was seconded by Trustee Lock and failed with three (3)
approved (Marchand, Lock, Perkins) and seven (7) opposed. Trustee De Lara made the
motion to approve the recommendation by the Personnel Committee to keep the current
Organizational Chart with the Finance Administrator reporting to the Administrative
Services Manager. The motion was seconded by Trustee Duran and carried with eight
(8) approved, one (1) opposed (Marchand), and one (1) abstained (Lock).
F. Nomination of officers.
Trustee Laflin reported that the Nomination Committee recommends the following slate
of officers:
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 5 of 5
President: John Fuschetti
Vice President: Juan De Lara
Secretary/Treasurer: Mike Duran
Trustee Marchand asked when was the formation of the Nominating Committee brought
to the Board for a vote on its creation and why there are no minutes reflecting the
creation of the committee. Legal Counsel Copeland responded that the President
established the Nominating Committee after the last Board meeting, which is his
prerogative. Trustee Marchand objected to the process of the formation of the
Nominating Committee.
A discussion ensued. President Perkins called for additional nominations. Trustee Lock
nominated Trustee Marchand. Trustee Marchand declined.
3. Closed Session:
A. None
4. Trustee Comments:
Trustee Duran thanked the General Manager and staff. They are given a lot of
responsibility and are constantly having more added. They are doing a fantastic job.
President Perkins agreed.
.5. A_diournmeM:
The meeting adjourned at 8:15 p.m.
4
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 1 of 5
COACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT
Board of Trustees' Meeting
June 13, 2006
'all To Order:
resident Perkins called the meeting to order at 6:00 p.m.
'ledge of Allegiance:
Irustee Fuschetti led the Pledge of Allegiance.
toll Call:
'hose present at roll call: President Perkins, Vice President Fuschetti, Secretary/Treasurer
)uran, Trustees Godecke, Laflin, Lock, Marchand, McKay, Nigosian, and Steier. Also present
were General Manager Donald Gomsi, Administrative Services Manager Brian Passaro, finance
onsultant Susan Marie Weber, Administrative Assistant Anita Jones, Public Information
)fficer Robert Mann, Operations Manager James Saulnier, Field Supervisors Rodney
,hamberlain and Peter Bonkrude, Vector Control Technician Michael Martinez, and Legal
;ounsel Lisa Copeland. Trustee De Lara arrived at 6:07 p.m.
'rustee Marchand announced that it would be necessary for him to leave the meeting after the
;onclusion of Item I IA.
Confirmation of Agenda:
Trustee Godecke made the motion to confirm the Agenda. The motion was seconded by
Trustee Nigosian and carried unanimously.
Approval of Minutes for May 9, 2006 Board Meeting
Trustee Lock stated that the Minutes did not reflect discussions regarding the resignation
of the Finance Administrator, exit interviews, or a request to discuss these items in
Closed Session at this meeting. Trustee Lock made a motion to approve the Minutes for
the May 9, 2006 Board Meeting with changes to reflect discussions. The motion was
seconded by Trustee Marchand and carried unanimously.
3. Public Comment:
None
3. Announcements:
General Manager Gomsi presented Trustee Paul Steier and Trustee Dennis Godecke with
a District plaque thanking them for their service on the Board. General Manager Gomsi
displayed other insect repellants, aside from DEET, that have been found to be effective.
Public Information Officer Mann will be distributing packets of insect repellant at the
Palm Desert High School graduation ceremony which is in the vicinity where a mosquito
pool was found positive for West Nile virus. More will be passed out at Fourth of July
celebrations and other community events. Trustee Fuschetti and General Manager Gomsi
attended a workshop by the Special District Institute and took the required AB 1234
training. Trustee Fuschetti reported that the training was very beneficial and shared the
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 2 of 5
topics covered.
Correspondence:
As in Board Packet. Handouts included a letter from the City of Indian Wells appointing
Dr. Underwood as the new Trustee representing the city and an email from Susan
Weisbert announcing the appointment.
Approval of Expenditures for May 10-31, 2006 and June 1-13, 2006:
Trustee Duran made the motion to approve the Expenditures for May 10-31, 2006 and
June 1-13, 2006. The motion was seconded by Trustee De Lara and carried unanimously.
Committee Reports
A. Finance Committee: Trustee Duran reported that the Committee has submitted a
budget for approval. He thanked Trustee Godecke for his service on the Finance
Committee.
B. Rules, Regulations and Procedures Committee: Trustee Laflin reported that the
Committee was continuing to work on the Trustees Manual.
Resort of District Activities:
Items are noted in the Manager's Report. General Manager Gomsi reported that several
television news interviews were given regarding the West Nile virus positive findings in
Palm Desert. Scientific Operations Manager Lothrop reported that to date there are six
positive mosquito pools, five from Northshore and one from Palm Desert. The District
will begin in-house testing of mosquitoes which will shorten the time between collection
and reporting. The first flooding of the tadpole shrimp pond took place and produced the
first hatchings. Operations Manager Saulnier reported the aerial and ground foggings in
the North Shore area have stopped because there have been no positive mosquito pools
for five weeks. The Palm Desert area is now being fogged in response to the positive
findings there.
Informational Items:
A. Bird Flu May Spread Along Migratory Routes
Included in Board Packet.
l0. Consent Calendar:
A. Approval for the General Manager and Trustees desiring so to attend the
Coachella Valley Association of Governments Annual General Assembly on June
26, 2006 in Palm Springs. Amount not to exceed $200.00 from Fund 6200.1.200,
Meetings Expense, and Fund 6120.1.250, Trustee Support.
B. Approval for the General Manager and Trustees desiring so to attend the
California Special Districts Association 2006 Annual Conference in Lake
Tahoe/Squaw Creek, September 25-28, 2006. Amount not to exceed $7,000.00
from Fund 6110.1.200, Conference Expense, and Fund 6120.1.250, Trustee
Support.
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C. Approval to translate and print five District brochures into Spanish in an amount
not to exceed $8,500.00 from Fund #6060.1.215, Public Education Materials.
D. Reimbursement to Gudgel Aero-Ag Services for payment of airplane insurance
for airplane that is located in Thermal and used by the District for aerial ULV
applications in the amount of $6,563.00 from account # 6000. 1.225, Property and
Liability Insurance.
Trustee Marchand made the motion to approve the Consent Calendar. The motion was
seconded by Trustee De Lara. Trustee Godecke asked if the term of the policy in Item D
is for one year. General Manager Gomsi replied in the affirmative. The motion carried
unanimously.
1. Old Business:
A. Approval of Fiscal Year 2006-2007 Budget.
Administrative Services Manager Passaro reported that the Budget being presented for
approval was reviewed by the Finance Committee. Trustee Lock stated that the budget is
significantly different from the Budget presented a month ago. It asks for two million
dollars more in revenue than it asked for in the past. The District has used less than 50%
of monies budgeted for this year and is now asking for over a million dollars more. A
discussion ensued. Trustee Marchand stated that some of the questions might be
answered by having a clear narrative and break down on what the monies are used for. A
discussion ensued. Trustee Laflin stated that the problem is we have to be prepared for
disease control and possible epidemics. Our role is to prevent these things. General
Manager Gomsi stated that this document does not stand alone. Much of the detail is in
the prior year's budget which had been distributed before. Trustee Godecke stated that it
is important to understand that the current document is just the latest draft of the Finance
Committee. Also, the Finance Committee meetings are open and anyone is welcome to
attend. A discussion ensued. Trustee Steier: Made a motion to continue this item to the
next Board of Trustees meeting. The motion was seconded by Trustee Marchand.
By roll call vote, the Motion failed with seven (7) opposed and four (4) approved (De
Lara, Fuschetti, Marchand, Steier).
Trustee De Lara made a motion to accept the budget as presented. The motion was
seconded by Trustee Godecke and passed with nine (9) approved and two (2) opposed
(Lock and Marchand).
Trustee Marchand was excused from the meeting.
12. New Business:
A. Approval to purchase an Argo Conquest Tundra from Points West Argo in an
amount not to exceed $18,000.00 from Fund #8415.1.500, Field Operations
Capital Outlay.
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Trustee Fuschetti made the motion to approve. The motion was seconded by Trustee
McKay and carried unanimously.
B. Discussion and approval of Resolution #2006-04, intention to levy assessments
for fiscal year 2006-07, preliminarily approving engineer's report, and providing
for notice of hearing for the CVMVCD mosquito, fire ant and disease control
assessment
Trustee Steier made the motion to approve. The motion was seconded by Trustee De
Lara and carried with nine (9) approved and one (1) opposed (Lock).
C. Approval of Resolution #2006-05 authorizing Secretary/Treasurer Mike Duran to
attend and vote at the Special District Association of Riverside County meeting to
be held June 15, 2006 at PGA of Southern California in Beaumont. The General
Manager will also attend but not vote. No cost to the District.
Trustee Godecke made the motion to approve. The motion was seconded by Trustee
Steier and carried unanimously.
D. Discussion and/or approval for District to put in a bid to host the American
Mosquito Control Association 2011 Annual Conference.
Trustee Steier made the motion to approve. The motion was seconded by Trustee
Nigosian and carried unanimously.
E. Approval to purchase 100 gallons of Pyrenone 25-5 and 150 gallons of Aqua
Resilin for adult mosquito control from the lowest bidder in an amount not to
exceed $45,000.00 from Fund #7800.1.500, Control Products.
Trustee Steier made the motion to approve. The motion was seconded by Trustee Lock
and carried unanimously.
F. Approval to conduct an aerial reconnaissance of the urban areas of Coachella
Valley for backyard green pools. Not to exceed $30,000.00 from Fund
#7850.1.500, Aerial Application.
Trustee Duran made the motion to approve. The motion was seconded by Trustee
Godecke and carried unanimously.
G. Approval to purchase a Polaris Sportsman 500 EFI all terrain vehicle equipped
with 14 gallon sprayer mounted tank and spray wand in an amount not to exceed
$8,500.00. From Fund #8415.1.500. Capital Outlay — Field.
Trustee Laflin made the motion to approve. The motion was seconded by Trustee
McKay and carried unanimously.
H. Approval of COLA for non -represented employees in the amount of the increase
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in the Consumer Price Index for All Urban Consumers in the Los Angeles -Riverside
County -Orange County area as of May 2006 (figure not available until June 15)
capped at 3.0% for fiscal year 2006-2007, effective July 1, 2006. This equals the
amount that represented employees will receive.
Trustee Fuschetti made the motion to approve. The motion was seconded by Trustee De
Lara and carried unanimously.
I. Election of officers.
Trustee Laflin reported that the Nomination Committee had recommended the following
slate of officers:
President: John Fuschetti
Vice President: Juan De Lara
Secretary/Treasurer: Mike Duran
Trustee Godecke made the motion to elect the slate of officers as recommended by the
Nominating Committee. The motion was seconded by Trustee McKay and carried
unanimously.
.3. Closed Session:
A. CLOSED SESSION — Public employment pursuant to Government Code Section
54957 — Finance Administrator and Assistant to the General Manager.
B. CLOSED SESSION — Conference with Legal Counsel pursuant to Government
Code section 54956.9 (a), Coachella Valley Mosquito and Vector Control District
v. Highland Partnership et al. pending in Riverside County Superior Court as Case
No. INC048734.
No reportable action.
14. Trustee Comments:
Trustee Nigosian commented that both President Perkins and Vice President Fuschetti
did a great job during their term of office. Trustee Godecke thanked the Board members
and commented that being a member of the Board was really enjoyable. He thinks
Secretary/Treasurer Duran is doing a great job. Trustee Steier said goodbye and thanked
the President and Board members for their patience and thanked the staff for being
consummate professionals. It is important work that the District does and he enjoyed the
opportunity.
15. Adjournment:
The meeting adjourned at 7:55 p.m.
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COACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT
Board of Trustees' Meeting
July 11, 2006
;all To Order:
'resident Fuschetti called the meeting to order at 6:00 p.m.
'ledge of Allegiance:
'rustee Duran led the Pledge of Allegiance.
toll Call:
'hose present at roll call: President Fuschetti, Secretary/Treasurer Duran, Trustees Baker, Lock,
darchand, McKay, Perkins, and Underwood. Also present were General Manager Donald
iomsi, Administrative Services Manager Brian Passaro, Scientific Operations Manager Branka
,othrop, PhD, Administrative Assistant Anita Jones, Public Information Officer Robert Mann,
)perations Manager James Saulnier, Field Supervisors Rodney Chamberlain, Peter Bonkrude,
'hilippe Boeing and Victor Teran, Vector Control Technician Michael Martinez, and Legal
:ounsel Lisa Copeland. Vice President De Lara arrived at 6:03 p.m. Trustee Laflin and Trustee
Jigosian were absent.
Confirmation of Agenda:
Trustee Marchand made the motion to confirm the Agenda with the modification that
Items 12D-F be moved to Consent. General Manager Gomsi stated Item 12E reflects
Ben Laflin as a signer twice and the second listing should reflect adding Ron Perkins as a
signer. Also, requested that Item 12A be moved up to Item 5A. Trustee Marchand
amended his motion to reflect the changes. The motion was seconded by Trustee De
Lara and carried unanimously.
C. Amroval of Minutes for June 132006 Board Meehne:
Trustee Duran made the motion to approve the Minutes for the June 13, 2006 Board
Meeting. The motion was seconded by Trustee De Lara and carried with eight (8)
approved and one (1) abstained (Baker).
3. Public Comment:
None
�. Announcements:
President Fuschetti welcomed Trustee Karl Baker representing the City of Desert Hot
Springs and Trustee Bruce Underwood representing the City of Indian Wells to the
Board. President Fuschetti presented President Perkins a plaque recognizing him for his
outstanding service during his tenure as President. General Manager Gomsi presented
recognition certificates to Premises Inspectors Don Lomas and Robert Stoaks for their
excellent work. The new accounting system has been installed. Also, in the Society for
Vector Ecology newsletter, there is an article regarding the dedication of the Bio-Control
Facility to Dr. Mulla.
i
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Correspondence:
As in Board Packet.
A. Public hearing and approval of Resolution #2006-06 approving Engineer's
Report, confirming diagram and assessment, and ordering the levy of assessments
for fiscal year 2006-07 for the mosquito, fire ant and disease control assessment
President Fuschetti announced the public hearing is to discuss the continuation of a
benefit assessment in fiscal year 2006-2007 that funds the District's mosquito, fire ant,
vector control, and disease prevention services and projects in the Coachella Valley. This
hearing gives the residents and property owners another opportunity to obtain additional
information about the assessment and services and provides an opportunity for property
owners and residents to provide any additional inputs and comments to the District.
General Manager Gomsi reported that it had been a monumental year for the District.
The Bio-Control Facility was completed which grows various bio-control organisms to
enhance disease control; West Nile virus was treated by land, sea and air, and there were
no deaths or serious cases in the Coachella Valley; and the Red Imported Fire Ant
program is up and running. The benefit assessment funds have helped the District
enhance the goals of the District. President Fuschetti opened the Public Hearing. No
public comments were made. President Fuschetti closed the Public Hearing. Trustee
Marchand made the motion to approve the Engineer's Report. The motion was seconded
by Trustee De Lara and passed by roll call vote seven (approved), one (1) opposed
(Trustee Lock), and one (1) abstained (Baker).
Approval of Expenditures for June 14-30, 2006 and July 1-11, 2006:
Continued to later in the Agenda.
Committee Reports
A. Finance Committee: Trustee Duran reported that the Committee had met and
thanked Trustee Lock for being in attendance. Trustee Baker asked if the fixed
assets included the property across the street and when that property was last
appraised. A discussion ensued. Trustee Baker requested that this discussion be
put on a future Agenda.
i. Report of District Activities:
Items are noted in the Manager's Report. Operations Manager Saulnier reported that
treatment for West Nile virus is still at a high surveillance and intensity to protect public
health and will continue. The Red Imported Fire Ant (RIFA) program is very active.
The heat is causing some problems for the staff during the peak of the day, but they
continue to survey and treat. Trustee Baker asked if the golf courses are still exempt
from treatment of the RIFA program. Operations Manager Saulnier responded that the
golf courses were maintained by the California Department of Food and Agriculture but
the District works closely with them to get compliance and support to coordinate their
treatment with the District's. Trustee Lock commented that she has had nothing but good
reports regarding the work that RIFA did in Cathedral Canyon. Scientific Operations
Manager Lothrop reported there is not much change since the last Board meeting.
President Fuschetti asked if the low detection is common in the State. Scientific
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Operations Lothrop reported that things may be postponed because of the weather, but
the season is not over. But it does look quieter than last year. Public Information Officer
Mann reported that improvements had been implemented on the fogging page of the
District's website. Also, the District provided insect repellant towelettes to the cities for
distribution on the Fourth of July.
Informational Items:
A. Stormwater Vegetation Management
B. Last Quarterly Reports for University of California Riverside and Davis for fiscal
year 2005/2006.
Included in Board Packet.
0. Consent Calendar:
A. Approval for Finance Administrator and Trustees desiring so to attend the Special
District and Local Government Institute seminar on Finance in Monterey, October
12-13, 2006. Amount not to exceed $4,000.00 from Fund 6110.1.200, Conference
Expense, and Fund 6120.1.250, Trustee Support.
B. Approval of a $2,000.00 contribution to help sponsor the cost to provide lunch for
the Coachella Valley Fanners Educational Meetings from Fund #6210.1.215,
Public Education.
C. Approval of Associate of Arts degree program through tuition reimbursement for
Administrative Clerk Crystal Garcia in an amount not to exceed $4,500.00. From
Fund 5250.1.225, Tuition Reimbursement.
D. Approval of Resolution #2006-07 establishing signature approval for checks
written by the District. This resolution will supersede Resolution #2003-11.
E. Approval of Resolution #2006-08 adopting budgets for FY 05/06 and FY 06/07.
This resolution will supersede Resolution #2004-12.
Trustee Marchand made the motion to approve the Consent Calendar. The motion was
seconded by Trustee De Lara. Trustee Underwood asked what the standard was for
tuition reimbursement. A discussion ensued. Trustee Baker requested putting a Tuition
Reimbursement policy discussion on a future Agenda. The motion carried unanimously.
11. Old Business:
A. Discussion of retreat for District Trustees.
President Fuschetti reported that it would not be a problem to get a facility in which to
hold a retreat. The real question is what type of facilitator to hire and how much the
Board would like to spend. A discussion ensued. Trustee Perkins made a motion to
continue this Item and bring it back in front of the Board in six months. The motion was
seconded by Trustee Baker. Trustee Marchand commented that if it was to be continued,
it should not be continued for more than one month. The motion failed with_one (l
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approved (Perkins) and eight (8) opposed. Trustee Marchand made a motion to continue
this item to the next meeting and for staff to provide a list of facilitators and venues,
along with budgetary issues and impacts. Trustee Baker recommended in an amount not
to exceed $10,000. The motion was seconded by Trustee Baker and carried unanimously.
resident Fuschetti announced a ten (10) minute break. Trustee Marchand and Trustee Perkins
;ft the meeting.
6. Approval of Expenditures for June 14-30, 2006 and July 1-11, 2006 (continued
from earlier in the Agenda):
Trustee De Lara made the motion to approve the Expenditures for June 14-30, 2006
and July 1-11, 2006. The motion was seconded by Trustee Lock and carried
unanimously.
2. New Business:
A. See Item 5A.
B. Approval to purchase two (2) golf carts in an amount not to exceed $20,000 from
Fund #8415.1.590, RIFA Capital Outlay.
Trustee De Lara made the motion to approve. The motion was seconded by Trustee
Duran and carried unanimously.
C. Approval to renew Insurance Policy for non -owned commercial aircraft coverage
with AvQuest in an amount not to exceed $10,125 from Fund #6000.1.225,
Property and Liability Insurance.
Scientific Operations Manager Lothrop reported that this is an annual renewal of
insurance. Trustee Duran made the motion to approve. The motion was seconded by
Trustee Baker and carried unanimously.
D. See Item IOC.
E. See Item IOD.
F. See Item 10E.
G. Approval to install and modify lights for aquaculture in the tank room. Award of
contract will go to lowest responsible bidder. Funds not to exceed $25,000.00
from Fund #8484.1.700, Interior Equipment Bio-Control Facility. $65,000 is
available in this fund.
Scientific Operations Manager Lothrop reported that if there is not enough light, the
mosquitofish will drop in production. Trustee Baker made the motion to approve. The
motion was seconded by Trustee Lock and carried unanimously.
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H. Approval to purchase six RIFA vehicles in an amount not to exceed $120,000.00
from lowest priced available dealer stock from Fund #8415.1.590.
Trustee De Lara made the motion to approve. The motion was seconded by Trustee
Duran. Trustee Baker asked if the vehicles from the state grant program were kept.
Administrative Services Passaro responded that the District did still have those vehicles
and were being used, but they are old and worn. A discussion ensued. The motion
carried unanimously.
I. Approval to renew Vector Control Joint Powers Agency (VCJPA) coverages in
an amount not to exceed $106,030.00 from Fund 6000.1.225, Property and
Liability Insurance and Fund #6001.1.225, Workers Compensation Insurance.
Trustee De Lara made the motion to approve. The motion was seconded by Trustee
Duran and carried unanimously.
J. Discussion and/or approval of change to healthcare benefits.
Administrative Services Manager Passaro gave a presentation on the proposed change to
healthcare benefits. Legal Counsel Copeland reported that a key difference between
CalPERS and the present plan is that Ca1PERS requires that a retiree health benefit
program be offered. GASB 45 requires budgeting for retiree health care and that funds
be encumbered to cover the expense for twenty years. A discussion ensued. Vector
Control Operator Mike Martinez, representing union employees, stated that over the last
few years, they have not only taken lower health care plans, but some have even taken
family members off. Trustee Duran asked Mr. Martinez if the Ca1PERS plan is what the
union employees want. Mr. Martinez responded that yes, the union employees feel that
the Ca1PERS plan is a good plan. A discussion ensued. Trustee Duran made the motion
to approve. The motion was seconded by Trustee De Lara and by roll call vote carried
with four (4) approved and three (3) opposed (Lock, McKay, Underwood).
3. Closed Session:
A. CLOSED SESSION — Pursuant to Government Code section 54957.6 —
Conference with labor negotiators. Agency designated representatives: Lisa
Copeland, Don Gomsi and Brian Passaro, and California School Employees
Association Chapter 2001.
There was no need to meet in closed session.
l4. Trustee Comments:
None
l5. Adjournment:
The meeting adjourned at 8:37 p.m.
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COACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT
Board of Trustees' Meeting
August 8, 2006
.all To Order:
resident Fuschetti called the meeting to order at 6:00 p.m.
'ledge of Allegiance:
rustee Marchand led the Pledge of Allegiance.
'oll Call:
'hose present at roll call: President Fuschetti, Vice President De Lara, Trustees Baker, Lock,
larchand, Nigosian, Perkins, and Underwood. Also present were General Manager Donald
iomsi, Administrative Services Manager Brian Passaro, Scientific Operations Manager Branka
othrop, PhD, Public Information Officer Robert Mann, Operations Manager James Saulnier,
ield Supervisors Rodney Chamberlain, Peter Bonkrude, and Philippe Boeing, Vector Control
echnicians Rene Delgado and Michael Martinez, Premises Inspector Don Lomas, and Legal
.ounsel Lisa Copeland. Secretary/Treasurer Duran and Trustees Laflin and McKay were
bsent.
Confirmation of Agenda:
Trustee Baker requested moving Public Comment to Item IA. The motion was seconded
by Trustee De Lara and failed with four (4) approved (De Lara, Lock, Marchand and
Baker) and four (4) opposed (Nigosian, Perkins, Underwood and Fuschetti). Trustee De
Lara made the motion to confirm the Agenda as is. The motion was seconded by Trustee
Marchand and carried with seven (7) approved (De Lara, Baker, Marchand, Nigosian,
Perkins, Underwood and Fuschetti) and one (1) opposed (Lock).
Approval of Minutes for July 11, 2006 Board Meeting:
Trustee De Lara made the motion to approve the Minutes for the July 11, 2006 Board
Meeting. The motion was seconded by Trustee Fuschetti and carried with seven (7)
approved (De Lara, Baker, Lock, Nigosian, Perkins, Underwood and Fuschetti) and one
(1) opposed (Marchand).
Public Comment:
Karl Baker made comments on his appointment to the Coachella Valley Mosquito and
Vector Control District Board representing the City of Desert Hot Springs. Trustee Baker
made a request to place on the next Agenda, appropriateness of District staff and or
counsel to recommend, advocate on behalf of, or disapprove or advocate against any
candidate for Trustee of the District.
1. _Announcements:
The Local Agency Formation Commission (LAFCO) has issued a Request for Proposals
to hire a consultant for the sphere of influence study. The hearing on the matter has.beenn
y,
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delayed until at least October. The District has submitted two hotels, the Desert Springs
Marriott and the La Quinta Resort, as possible venues for the AMCA Conference to be
held in 2011. Quotes received were for certain weeks in January. Other cities are also
submitting proposed venues. The General Manager will not be attending the California
Special District Association (CSDA) conference in Squaw Creek as previously approved
by the Board. The University of California, Riverside featured a picture of the Bio-
Control Grand Opening in their newsletter. A Finance Administrator has been hired and
has started working part-time. He will start working full-time in a few weeks.
Correspondence:
As in Board Packet. An additional handout was a letter from the University of
California, Davis thanking the District for the grant monies.
Approval of Expenditures for July 12-31, 2006 and August 1-8, 2006:
Trustee Lock inquired about check number 26925 in the amount of $9,867.77 for an
expenditure for U.S. Bank Visa. Administrative Services Manager Passaro explained that
the cards are used by management staff for travel expenses and minor purchases. Trustee
Lock stated that the cities actually attach those statements to the financial reports.
Trustee Baker stated that all expenses should be broken out so that Trustees can see what
the charges are for. A discussion ensued. General Manager Gomsi reported that prior
Boards have authorized that all of the back-up for the credit cards be attached to the
check and reviewed and authorized by the two trustees that sign the checks. No staff
member signs any of the checks. Trustee Lock requested copies of the statements from
the second quarter and July. A discussion ensued.
Trustee Nigosian made the motion to approve the expenditures for July 12-31, 2006 and
August 1-8, 2006. The motion was seconded by Trustee De Lara and carried by roll call
vote of five (5) approved (De Lara, Nigosian, Perkins, Underwood and Fuschetti) and
three (3) opposed (Lock, Marchand and Baker).
�. Committee Reports
A. Finance Committee: General Manager Gomsi reported that since the
Secretary/Treasurer was the only Committee member in attendance, the meeting
was an informational one only; the status of the finances were discussed. The next
meeting is set for August 30, 2006 at 12:00 noon.
L Report of District Activities:
Items are noted in the Manager's Report. Scientific Operations Manager Lothrop
reported that there have been no positive mosquito pools detected for over a month, one
positive chicken detected in May and none since that time, no positive dead birds in this
area, and no positive human cases detected. Next month, fly surveillance will be added
to the reporting. Regarding biocontrol, mosquito fish production has increased.
Operations Manager Saulnier reported that treatment for mosquito control is still very
active. The results from the green pool surveillance project have been received and
evaluated. Pools with potential for mosquito breeding are being actively pursued to
effect correction. The Red Imported Fire Ant (RIFA) program is very active. Currently,
two products are being used that reduce the use of Amdro. Two additional Premises
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Inspectors have been hired. Trustee Baker asked if the District is included in the
distribution of Environmental Assessment Reports (EAR) for communities that build
storm water retention basins and similar basins which can result in drainage problems.
Operations Manager Saulnier confirmed that they are working with the planners and code
enforcement personnel of the cities to address this issue. Trustee Lock asked when
reports will be generated by the new financial software. Administrative Services
Manager Passaro responded that the reporting will be generated by the new software in
the September Board packet.
Informational Items:
A. Vector of the Month — Garbage Flies
B. Green Swimming Pool Mosquito Breeding Surveillance
C. Tri-Agency Nuisance Water Abatement Program
Included in Board Packet
D. Presentation by Field Supervisor Peter Bonkrude on the District's operations in
rural areas.
Field Supervisor Peter Bonkrude gave a PowerPoint presentation on vector control
operations in the rural areas of the Coachella Valley.
0. Consent Calendar:
A. Approval for General Manager, Scientific Operations Manager, and Assistant
Vector Ecologist to attend the Society of Vector Ecology Annual Meeting in
Anchorage, AK, September 29 — October 3, 2006. Amount not to exceed
$7,000.00 from Fund 6110.1.200, Conference Expense.
B. Approval six (6) staff members to attend the Mosquito and Vector Control
Association of California Quarterly Meeting in South Lake Tahoe, October 25-27,
2006. Amount not to exceed $4,000.00 from Fund 6110.1.200, Conference
Expense.
Trustee De Lara made the motion to approve the Consent Calendar. The motion was
seconded by Trustee Nigosian. The motion carried by roll call vote of six (6) approved
(De Lara, Lock, Nigosian, Perkins, Underwood and Fuschetti), one (1) opposed
(Marchand) and one (1) abstained (Baker).
1. Old Business:
A. Discussion of retreat for District Trustees.
General Manager Gomsi reported that four (4) facilitators had been identified for the
retreat. Information was presented to the Board of Trustees. Trustee Marchand
commented that the advantage of having facilitators that are not specifically familiar with
vector control is that they may challenge the participants to think outside the box and to
think about the processes in ways that have not been thought of before. A discussion
ensued. Trustee Baker made a motion to schedule the retreat for the second weekend in
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November. The motion was seconded by Trustee De Lara. A discussion ensued.
Trustee De Lara suggested the 13th and 14th of October. Trustee Baker amended his
motion to schedule the retreat for the 13th (half -day) and 14th (full day) of October with
further details to be provided. The motion carried by roll call vote unanimously. Trustee
Lock made a motion to hire Linda and Milan Hamilton as facilitators for the retreat and
to hold it at the Courtyard by Marriott for under $700.00 for one day. The motion was
seconded by Trustee Marchand. General Manager Gomsi requested including senior staff
in the retreat and holding another session for all staff. 'Trustee Lock amended her motion
to include senior staff and after evaluating the results of the retreat, deciding if an
additional retreat should be held for all staff. Trustee Lock inquired if senior staff
included any union represented employees. A discussion ensued. Trustee Lock amended
her motion to also include a union representative. The motion was seconded by Trustee
Marchand and carried by roll call vote unanimously.
2. New Business:
A. Discussion of Grand Jury Report and authorization for General Manager to
respond.
General Manager Gomsi requested authorization from the Board to respond to the Grand
Jury Report to correct some erroneous facts. A discussion ensued. Trustee Marchand
made a motion to give the General Manager direction to prepare a draft response to the
Grand Jury report to be presented to the Board for the Board's review and comment at the
next Board meeting, to prepare a memorandum to the District addressing the issues that
may be confronted if this District is to expand including, but not limited to, expansion of
the District's Board to seat representatives from Blythe and/or mid -county cities that may
be annexed to the District as well as possible tribal representation, and ascertaining if
Supervisorial appointments are made by individual Supervisors or are in fact an
appointment of the entire body. The motion was seconded by Trustee Baker and carried
unanimously.
B. Approval of benefit levels and resolutions as required by Ca1PERS to move to
Ca1PERS health insurance.
Administrative Services Manager Passaro stated that this item is necessary to follow
through with the decision by the Board at the last meeting to change to Ca1PERS health
insurance. Trustee Baker stated that in talking to representatives of his city, he was
surprised that a public hearing was not held in approving the 1 million dollar expense that
was included in the passing of the change to CalPERS. Legal Counsel Copeland stated
that she was not aware of any requirement for a public hearing other than opportunity for
public comment, which was provided. It is not technically an expenditure; it is a GASB
requirement that the million dollars be set aside in reserve. A discussion ensued. Trustee
Marchand made the motion to approve the resolutions. The motion was seconded by
Trustee De Lara and carried by roll call vote of five (5) approved (De Lara, Marchand,
Nigosian, Perkins and Fuschetti) and three (3) opposed (Lock, Underwood and Baker).
3. Closed Session:
A. None
5
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 5 of 5
4. Trustee Comments:
Trustee Perkins requested to have staff look into having monitors at the table to be shared
by two trustees to facilitate viewing the presentations. Also, he is sensing an attempt to
tear the Board apart, although in the past the Board operated on very friendly and warm
terms. As a courtesy, if information is desired, a list should be presented to the staff
before the meeting. The Board and the staff in the past years have done an excellent job.
He is not sensing the spirit of cooperation that should be present. All Board members
need to take a long hard look at how they treat the others on the Board and the staff.
Trustee Fuschetti remarked operations have really improved for the District since the
move to Indio. He concurs with Trustee Perkins.
5. Adjournment:
Trustee Marchand requested standing for a moment of silence in memory of former
Trustee Gary Bosworth. The meeting adjourned at 8:30 p.m.
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 1 of 5
COACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT
Board of Trustees' Meeting
September 12, 2006
'all To Order:
resident Fuschetti called the meeting to order at 6:05 p.m.
ledge of Allegiance:
rustee Duran led the Pledge of Allegiance.
MI Call:
hose present at roll call: President Fuschetti, Secretary/Treasurer Duran, Trustees Baker,
aflin, Marchand, McKay, Nigosian, Perkins, and Underwood. Also present were General
tanager Donald Gomsi, Administrative Services Manager Brian Passaro, Scientific Operations
tanager Branka Lothrop, PhD, Public Information Officer Robert Mann, Operations Manager
umes Saulnier, Field Supervisors Rodney Chamberlain, and Victor Teran, Vector Control
echnicians Rene Delgado, Michael Martinez and Mario Montez, Premises Inspector Don
omas, and Legal Counsel Lisa Copeland. Excused absences for Vice President De Lara and
rustee Lock.
Confirmation of Agenda:
Trustee Perkins made the motion to confirm the Agenda. The motion was seconded by
Trustee McKay and carried unanimously.
Approval of Minutes for August 8.2006 Board Meeting:
Trustee Baker stated that during the confirmation of the Agenda, he made the motion and
the vote was 4 to 4, but counsel ruled that his vote was out of order because in her
opinion he was not a duly authorized Trustee. Therefore, she changed the vote to 4 to 3
and said the vote failed. Also, under Item #3, Ms. Lock questioned under what authority
the counsel for the District had to speak on behalf or against a Trustee nomination from a
city. The response from counsel was that once she is requested by the chair, then she has
unlimited authority to do that. Trustee Baker would like these corrections to be reflected
in the minutes. Trustee Marchand made a motion to continue approval of the minutes
pending review of the tapes. The motion was seconded by Trustee Duran and carried
unanimously.
Public Comment:
None
Announcements:
President Fuschetti announced that Trustee Lock would not be in attendance due to
medical problems. The District wishes her a speedy recovery. President Fuschetti asked
Trustee Marchand to say a few words regarding September 11, 2001. Trustee Marchand
announced that September 11, 2001 was a regular Board meeting night and the Board of
Trustees met to do the business of the Board, as announced that night, and did not allow
themselves to be moved by fear or panic. In the five years since, much has changed,. but
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'OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 2 of 5
this Board continues to do the people's business. He asked for a moment of silence to
remember the thousands of Americans murdered on September 1 lth by the terrorists. A
moment of silence was held. General Manager Gomsi announced new employees David
I'Anson, Finance Administrator, Diane Glanz, Assistant to the General Manager, Maria
Espinoza, Community Educator, Cortney Heilman, Administrative Clerk, and Jeff
Boucher and Jose Arriaga, RIFA Premises Inspector Trainees. Legal Counsel Copeland
will present a training for AB 1234 prior to the next Board meeting at 3:00 p.m. If any
Trustee has received the training elsewhere, they were asked to provide the District with
a letter of proof. President Fuschetti encouraged all Trustees who need the training to
attend. Trustee Baker announced that the AB 1234 training will also be available at the
Coachella Valley Association of Governments (CVAG) conference room on October 4th
from 6:00 to 8:00 p.m. Trustee Baker announced that the presentation by Public
Information Officer Mann and Community Educator Espinoza to the Desert Hot Springs
Community Task Force was excellent and sparked a lot of interest.
Correspondence:
As in Board Packet. Trustee Marchand commented that the letter from the City of
Cathedral City was a housekeeping issue only and will not have any affect on the District.
Approval of Expenditures for August 9-31, 2006 and September 1-12, 2006:
Trustee Duran made the motion to approve the expenditures for August 9-31, 2006 and
September 1-12, 2006. The motion was seconded by Trustee Underwood and carried
with seven (7) approved (Duran, Laflin, McKay, Nigosian, Perkins, Underwood and
Fuschetti) and two (2) opposed (Marchand and Baker). Trustee Baker inquired if it was
possible to receive the green sheet of expenditures sometime before the Board meeting.
General Manager Gomsi responded that it is prepared an hour before the meeting and
could not be given out any earlier.
Committee Reports
A. Finance Committee: Trustee Duran thanked Trustee Lock for her time and the
General Manager and staff for providing all of the information needed to address
the issues that she had. Trustee Baker commented that a few months ago the
Board approved an expenditure for the purchase of some gasoline powered pick up
trucks for the RIFA Program. There is a State law that requires all governmental
agencies to purchase alternate fuel vehicles unless they have a waiver from Air
Quality Management District (AQMD). His city could use some inexpensive
vehicles for their Community on Patrol program and asked if there is any way that
the City of Desert Hot Springs can acquire the used vehicles. General Manager
Gomsi responded it is incorrect that the District was required to purchase alternate
fuel vehicles for the RIFA Program. They purchased those vehicles for the State
run program because it was good for the environment and good for the Coachella
Valley. It turns out that those trucks were impractical for use by the District. The
trucks will be going back to the California Department of Food and Agriculture
shortly.
Report of District Activities:
Items are noted in the Manager's Report. Scientific Operations Manager Lothrop
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 3 of 5
reported that there have been nine (9) positive mosquito pools with the latest being
detected at the West Shore on August 29th. There are no positive dead birds, five (5)
positive chickens for West Nile Virus and two (2) for Western Equine, and no positive
Hantavirus rodents. In Bio-control, the number of laid eggs has increased since the first
flooding. They are preparing this week to stock a pond at the Duck clubs. Researchers
from U.C. Riverside will be visiting this week to help establish a colony of nematodes.
Operations Manager Saulnier reported that aerial surveillance detected 265 pools, of
which 189 were green pools wherein dozens were breeding. The District has obtained
compliance from all, except for five (5) absentee owners. Operations is active in the
duck club campaign and has increased surveillance adjacent to the Salton Sea. RIFA
staff has treated 2,249 acres for the month and is continuing to evaluate Top Choice
which is showing promise. President Fuschetti asked how the pesticide Top Choice is
better than the other pesticides being used. Operations Manager Saulnier replied that top
choice is enhanced by the use of water and lasts a full year. Public Information Officer
Mann reported that the District will participate in a higher level of local sponsorships.
Field Supervisor Rodney Chamberlain gave a PowerPoint presentation on vector control
operations in the urban areas of the Coachella Valley.
Informational Items:
A. Lethocerus americanus (Giant Water Bug) — A Potential Biological Control
Agent Against Mosquito Larvae
Included in Board Packet
0. Consent Calendar:
A. Approval of vacation for General Manager September 18-22, 2006. Assistant to
the General Manager Glanz will be working to address any issues that may arise.
Trustee Nigosian made the motion to approve Item 10A. The motion was seconded by
Trustee Underwood and carried unanimously.
B. Approval of subordination of Statutory Pass -through payments which the
Redevelopment Agency for the County of Riverside ("Agency") is required to pay
in connection with the Desert Communities Redevelopment Project Area.
General Manager Gomsi stated that Item lOB is a formality and will delay receipt of a
small amount of pass through money. Trustee Duran made the motion to approve Item
IOB. The motion was seconded by Trustee Baker and carried with eight (8) approved
(Baker, Duran, Laflin, McKay, Nigosian, Perkins, Underwood and Fuschetti) and one (1)
opposed (Marchand).
1. Old Business:
A. Approval of draft letter to Grand Jury correcting items contained in the 2005-
2006 report regarding the Riverside mosquito and vector control districts.
Trustee Marchand made the motion to approve. The motion was seconded by Trustee',
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 4 of 5
Nigosian. A discussion ensued. The motion carried unanimously.
2. New Business:
A. Approval to purchase pesticides from lowest responsible bidder in an amount not
to exceed $300,000.00. From Fund #7800.01.500, Control Products Field, and
Fund #7800.01.590, Control Products RIFA.
Trustee Marchand made the motion to approve, not to exceed $300,000. The motion was
seconded by Trustee Duran. Trustee Baker inquired if this was an annual approval.
General Manager Gomsi replied that it is not annual. It is purchased 2 or 3 times a year.
Trustee Baker asked what percent of the budget that this purchase represents. Trustee
Marchand requested a budget breakdown be provided in the future showing how much of
the budget is left for this item so that it will not be over -allocated. The motion carried
unanimously.
B. Selection (if any) of nominee for Alternate Special District Member of the Local
Agency Formation Commission.
Trustee Marchand stated that elected members of the Board should not be considered for
nomination because it might be a conflict of interest. Trustee Marchand nominated
Trustee Baker. The motion was seconded by Trustee Duran and carried unanimously.
C. Approval to go out to bid and purchase from lowest responsible bidder one (1)
pick-up truck for Bio-Control for fish truck in an amount not to exceed $30,000
from Fund 8415.01.220, Bio-Control Capital Outlay.
Trustee Marchand made the motion to approve not to exceed $30,000.00 with the request
to look into hybrid vehicles as well. Trustee Baker commented that the bid needs to meet
the AQMD requirements. The motion was seconded by Trustee Duran and carried
unanimously.
3. Closed Session:
A. None
4. Trustee Comments:
Trustee Underwood commented that he would like to volunteer his assistance with the wellness
health plan. Trustee Nigosian congratulated Administrative Assistant Anita Jones for taking
advantage of the District's Tuition Reimbursement program. Trustee Perkins commented that it
is extremely difficult for him to turn around and see what is happening on the screen. He
suggested that a mirror be mounted on the opposite wall in order to be able to see the reflection
of the screen. Trustee Nigosian offered to give up his seat for Trustee Perkins. Trustee Baker
suggested having screens on both sides of the room. Trustee Marchand recommended using a
dual projector that can deploy to both sides of the room. Public Information Officer Mann
reported that staff is currently researching solutions to this problem. Trustee Baker commented
regarding statements that appeared in an article in the August 30, 2006 issue of the Desert Sun.
Two comments were attributed to residents of this District. Mr. Fuschetti was quoted as saying
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 5 of 5
"the majority of the Board does not favor the appointment of Mr. Baker." Trustee Baker hopes
this is not a correct statement as it would constitute a blatant violation of the Brown Act. PIO
Mann was quoted as saying, and Trustee Baker paraphrased, "if the City of Desert Hot Springs
City Counsel approves the appointment of Mr. Baker, the District should move forward and go
about the primary purpose of the District, protecting the Coachella Valley against the health
hazards of mosquitoes and other vectors." Trustee Baker wholeheartedly agrees with Mr. Mann
and would welcome the opportunity to put behind this expensive challenge to his appointment.
Trustee Duran commented that the Trustees serve the Board for one purpose only, to serve all
the residents of their cities. The District has a very good General Manager and the staff, trucks,
and operations are first class. Everywhere he goes he gets nothing but compliments. Personal
feelings should not be involved and the Trustees thoughts should remain on serving the residents.
President Fuschetti commented that the Board must work together. This District has done very
well in the 18 years he has been on the Board and it has been very progressive. President
Fuschetti stated that it has turned into a beautiful district and is top notch.
5. Adjournment:
Trustee Marchand made the motion to adjourn. The motion was seconded by Trustee
Duran and the meeting adjourned at 7:28 p.m.
r
.J
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 1 of 4
COACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT
Board of Trustees' Meeting
October 10, 2006
:all To Order:
resident Fuschetti called the meeting to order at 6:00 p.m.
ledge of Allegiance:
rustee Underwood led the Pledge of Allegiance.
Ml Call:
hose present at roll call: President Fuschetti, Vice President De Lara, Secretary/Treasurer
Duran, Trustees Baker, Laflin, Lock, Marchand, Nigosian, Perkins, and Underwood. Also
resent were General Manager Donald Gomsi, Administrative Services Manager Brian Passaro,
cientific Operations Manager Branka Lothrop, PhD, Administrative Assistant Anita Jones,
inance Administrator David I'Anson, Public Information Officer Robert Mann, Operations
tanager James Saulnier, Field Supervisors Rodney Chamberlain, and Philippe Boeing, Vector
ontrol Technician Michael Martinez, Premises Inspector Don Lomas, and Legal Counsel Lisa
opeland. Excused absence: Trustee McKay.
Confirmation of Agenda:
Trustee Duran made the motion to confirm the Agenda. The motion was seconded by
Trustee Nigosian and carried unanimously.
Minutes
A. Approval of Minutes for August 8, 2006 Board Meeting
Trustee Lock stated that when she was asking about the authority to instruct legal
counsel to expend funds on an investigation, the question was regarding
"unlimited" funds without a vote. That answer was yes, that the President and
Legal Counsel had authority for unlimited funds. Trustee Baker concurred with
Trustee Lock and that the President did not respond directly; that Legal Counsel
responded to the question. Trustee Marchand made the motion to approve the
Minutes for the August 8, 2006 Board Meeting as corrected. The motion was
seconded by Trustee Lock and carried unanimously.
B. Approval of Minutes for September 12, 2006 Board Meeting
Trustee Perkins made the motion to approve the Minutes for the September 12,
2006 Board Meeting. The motion was seconded by Trustee Laflin and carried
with nine (9) approved (Baker, De Lara, Duran, Fuschetti, Laflin, Marchand,
Nigosian, Perkins, Underwood, and Fuschetti) and one (1) abstained (Lock).
Public Comment:
None
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OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 2 of 4
Announcements:
Scientific Operations Manager Lothrop, Assistant Vector Ecologist Snelling, and General
Manager Gomsi attended the Society for Vector Ecology meeting in Alaska. It was very
informative and a good part of the first day of the proceedings talked about biological
control methods for mosquito control, corroborating the direction that the District is
moving in. Additionally, there were three awards presented at the conference. Two of
those awards were received by researchers for this District: Dr. William Reisen and Dr.
Mir Mulla. The District had three visitors from Thailand and two visitors from Colorado
tour the District's facilities and review its programs.
Correspondence:
As in Board Packet. Trustee Marchand asked if the District had responded to the letter
from Keith Metheny of The Desert Sun. A discussion ensued. Trustee Marchand
requested copies of all correspondence (not the production) between the District and the
requesting parties. Additional correspondence included a clarification letter from the
City of Desert Hot Springs regarding the appointment of Trustee Baker and a report on
Eye Gnats and Tadpole Shrimp from Dr. Mir Mulla.
Approval of Expenditures for September 13-30, 2006 and October 1-10, 2006:
Trustee Duran made the motion to approve the expenditures for September 13-30, 2006
and October 1-10, 2006. The motion was seconded by Trustee Perkins. Trustee Baker
stated that the Expenditures for September 30 — October 10, commonly referred to as the
"green sheet", do not comply with the 72 hour agenda notification required by the Brown
Act. Legal Counsel Copeland stated that the Brown Act requires the agenda to have all
items on it. The green sheet is information provided to expand upon the item that is on
the agenda. Receiving it at the Board meeting does not conflict with the Brown Act. It
becomes a public record that is available to the public at the time it is generated. A
discussion ensued. By roll call vote, the motion carried with seven (7) approved (De
Lara, Duran, Laflin, Nigosian, Perkins, Underwood and Fuschetti) and three (3) opposed
(Lock, Marchand, and Baker).
Committee Reports
A. Finance Committee: Trustee Duran reported that the reports are in the packet.
Trustee Baker stated that he is currently not assigned to any committee positions
and would be interested in serving on this committee. President Fuschetti stated
that the Finance Committee has the right number of personnel on it and would like
to hold off for now. Trustee Baker asked if that meant that he would not be
serving on any committee. President Fuschetti clarified that he meant just this
particular committee.
B. Personnel Committee: No report.
Report of District Activities:
A. Update on District Programs
Short program updates given by Operations Manager James Saulnier, Finance
Administrator David I'Anson, and Public Information Officer Robert Mann.
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:OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 3 of 4
B. Presentation on disease Surveillance at CVMVCD.
Scientific Operations Manager Lothrop gave a presentation on Disease Surveillance at
the District.
Informational Items:
A. Vector of the Month — Flesh Flies
B. Vehicles compliance with Air Quality Management District requirements.
C. Reimbursement for State mandated programs (Brown Act meeting Requirements)
D. University of California at Davis Research in the Coachella Valley Quarterly
Report for July -September 2006
E. University of California at Riverside Quarterly Report on Red Imported Fire Ants
and The Influence of Water Quality on Production of Mosquitoes from
Constructed Treatment Wetlands
Included in Board Packet.
0. Consent Calendar:
A. Approval for Finance Administrator to attend the Local Agency Investment Fund
Annual Conference in Sacramento, November 30 — December 1, 2006. Amount
not to exceed $2,000.00 from Fund 6110.01.200, Conference Expense.
B. Approval to purchase a Cisco Catalyst 3750 48 port SMI switch for the
Operations Department in an amount not to exceed $6,500.00 from Fund
#8415.01.210, IT Capital Outlay.
Trustee Nigosian made a motion to approve the Consent Calendar. The motion was
seconded by Trusted De Lara. Trustee Baker asked if the Cisco Catalyst purchase was
due to increased employees. General Manager Gomsi responded it was to expand upon
the District's network. A discussion ensued. Trustee Marchand stated that he did not see
a staff report for the LAIF Annual Conference giving background recommendations and
fiscal impact. A discussion ensued. Trustee Marchand stated that when the question is
called, he would vote no on Item A and yes on Item B. The motion carried for Item l0A
with eight (8) approved (De Lara, Duran, Laflin, Lock, Nigosian, Perkins, Underwood
and Fuschetti) and two (2) opposed (Marchand, and Baker). The motion carried for Item
10B with nine (9) approved (Duran, Laflin, Lock, Marchand, McKay, Nigosian, Perkins,
Underwood and Fuschetti) and one (1) opposed (Baker).
1. Old Business:
A. Update on Local Agency Formation Commission (LAFCO) Study.
General Manager Gomsi reported that at this time he does not know if LAFCO has hired
a company to do the studies. The study will probably be conducted by mail.
2. New Business:
A. Proposals for AN for Board room not to exceed $90,000.00 from Fund
#8487.01.800. J
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'OACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT Page 4 of 4
Administrative Services Manager Passaro stated that as a result of a request by several
Trustees regarding the inability to see the screen when images are projected onto it,
preliminary proposals were gathered to address the issue. Three options are: 1) to place
monitors on the Board table, 2) to provide monitors and, in addition, mount a projector on
the ceiling and motorize the current screen, and 3) eliminate putting monitors at the
Board table and add a screen to the back of the room in addition to motorized screens and
a new projector mounted on the ceiling. A discussion ensued. Trustee Marchand made a
motion to give direction to staff to pursue option 3 and to put it out to bid at a cost of not
to exceed $78,000. The motion was seconded by Trustee De Lara and carried with nine
(9) approved (De Lara, Duran, Laflin, Lock, Marchand, Nigosian, Perkins, Underwood
and Fuschetti) and one (1) opposed (Baker).
(5 minute break)
B. Approval of up to $6,000 for President's Luncheon to come from Fund
#6120.01.250.
Public Information Officer Mann reported that the President's Luncheon is an annual
event hosted by the President of the Board. Three sites were investigated: 1) District
premises, 2) The Living Desert in Palm Desert, and 3) The La Quinta Hotel. A
discussion ensued. Trustee Duran made the motion to approve The La Quinta Hotel as
the location for the President's Luncheon to be held on December 14, 2006. The motion
was seconded by Trustee Baker and carried unanimously.
3. Closed Session:
A. CLOSED SESSION — Potential Litigation — Conference with Legal Counsel
pursuant to Government Code 54956.9 (b)(1) (one potential case).
Returning from Closed Session, Legal Counsel Copeland announced there was no
reportable action.
4. Trustee Comments:
Trustee Baker requested a copy of the first half hour of the meeting tape for August 8,
2006. Trustee Nigosian announced that the Economic Development Agency was putting
on an air show at the Jackie Cochran Airport on November 4th, free of charge. Trustee
Duran acknowledged the staff and thanked them for their good work.
5. Adjournment:
Trustee Baker made the motion to adjourn. The motion was seconded by Trustee
Marchand and the meeting adjourned at 8:30 p.m.
ittp://www.cvmvcd.org/agenda/minutes/nov%2006/October%202006%2OMinutes.htm 11/21/2006
DEPARTMENT REPORT: 3-
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Department Report: 3—B
1411
y OF tl
TO: The Honorable Mayor and Members of the City Council
FROM: Veronica J. Montecino, City Clerkj�
DATE: December 5, 2006
SUBJECT: Department Report - Historic Preservation Commission Vacancy
On November 1, 2006, the City Clerk received a letter (via email) from Leslie
Mouriquand requesting acceptance of her resignation from the Historic Preservation
Commission effective November 17, 2006. She indicated the resignation is due to
her recent appointment as Riverside County Archaeologist.
At the November 21, 2006 meeting, the City Council requested information on the
residency requirement of City Commissions and the qualifications of applicants on
file. On August 3, 2004, the City Council adopted Ordinance No. 407 which states
all members of City Boards, Commissions and Committees appointed by the City
Council shall be a resident and a registered voter of the City of La Quinta.
The City Clerk Department currently has two unsuccessful applications on file from
the recruitment held in June 2006. Both applicants are residents and registered
voters. However, they had applied as lay members. Ms. Mouriquand was appointed
as a professional member of the Historic Preservation Commission.
The City Clerk's Office is seeking direction regarding advertisement for applications
to fill the unexpired term ending June 30, 2007.
i(n Q
FM OF'LK4'O
AGENDA CATEGORY:
COUNCIL/RDA MEETING DATE: December 5, 2006 BUSINESS SESSION:
ITEM TITLE: Public Hearing on the Adoption of a CONSENT CALENDAR:
Resolution to Vacate a ± 3,117-Foot Length of
Avenue 53 West of Monroe Street STUDY SESSION: _
PUBLIC HEARING:
RECOMMENDATION:
Conduct a public hearing and then adopt a Resolution of the City Council to vacate a
± 3,117-Foot length of Avenue 53 west of Monroe Street.
FISCAL IMPLICATIONS:
None.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
The right-of-way for this portion of Avenue 53 west of Madison Street currently is a
"paper street" within the Madison Club and Carmela development projects. Originally
this section of road was granted to the Board of Supervisors of Riverside County for
public highways in the 5`h Road District. However, no street improvements were
constructed. This portion of right-of-way is 843 feet west of Monroe Street to 3,960
feet west of Monroe Street (Attachment 1); is specifically described in Attachment 2;
and 3; and is not needed by other property owners for access, or improved
accessibility.
East of Madison, LLC., the developer of The Madison Club through which Avenue 53
traverses, requested vacation of the said portion of Avenue 53 pursuant to California
Street and Highways Code Part 3 for Public Streets, Highways, and Service Easements
Vacation Law, Section 8320-8325. The portion to be vacated will be incorporated in
511
the Madison Club Development and the Carmela Development, Tract Map No. 31784.
No access to Avenue 53 is required by the Madison Club or Carmela Development
along the north and south side of the street within the proposed street vacation area.
The portion of Avenue 53 to be vacated terminates at the easterly extent of a
previously vacated portion of Avenue 53 by City Council Resolution 2000-164 for The
Hideaway, Tract Map No. 29894 and begins at the entrance to Tract No. 31874, the
Carmela Development. Avenue 53 will remain a public street from the Carmela
entrance on the north side of Avenue 53 to Monroe Street.
The City mailed out first and second notification letters to all potentially effected public
agencies or utilities, setting October 6, 2006 as the final deadline for comments. No
public agency or utility has responded with negative comments. Coachella Valley
Water District (CVWD) has requested that a Bureau of Reclamation Irrigation Lateral
No. 119.65 be relocated and maintained (Attachment 4). A Relocation Agreement and
Grant of Easement was executed on June 13, 2006 between the Bureau of
Reclamation, CVWD and East of Madison, LLC.
The application was considered by the Planning Commission on November 14, 2006.
The Planning Commission found the proposed vacation to be consistent with the La
Quinta General Plan. The Planning Commission iterated that the aforementioned
easement on Avenue 53 be maintained.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Conduct a public hearing and then adopt a Resolution of the City Council to
vacate a ± 3,1 17-foot length of Avenue 53 west of Monroe Street; or
2. Conduct a public hearing and do not adopt a Resolution of the City Council to
vacate a ± 3,1 17-foot length of Avenue 53 west of Monroe Street; or
3. Provide staff with alternative direction.
Respectfully submitted,
4 Timothy R na P.E.
Public Wor it for/City Engineer
Approved for submission by:
Thomas P. Genovese, City Manager
Attachments: 1. Vicinity Map
2. Legal Description
3. Right -of -Way Vacation Plat
4. CVWD Letter
:l�
RESOLUTION NO. 2006-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA, CALIFORNIA, VACATING A ± 3,117-FOOT
LENGTH OF AVENUE 53 WEST OF MONROE STREET
CASE NO. RW-V 2005-014
SV 2006-042
WHEREAS, pursuant to Sections 8322 and 8323 of the Public Streets,
Highways and Service Easement Vacation Law, due notice of the Public Hearing was
given by public posting in the time and manner prescribed by law; and
WHEREAS, following its discussion of the street vacation application on
November 14, 2006, the Planning Commission of the City of La Quinta has determined
that the vacation of said length of Avenue 53 west of Monroe Street, is not in conflict
with the Circulation Element or other policies of the General Plan of the City of La
Quinta; and
WHEREAS, the City Council of the City of La Quinta has conducted the required
public hearing upon due notice and, upon hearing and considering all testimony and
arguments of all interested parties and persons desiring to be heard, did find the facts
to exist justifying the approval and adoption of said length of Avenue 53 west of
Monroe Street vacation, as follows:
1. Vacation of the subject length of Avenue 53 west of Monroe Street will not
adversely affect the City of La Quinta or adversely impact the Circulation
Element of the City of La Quinta General Plan.
2. The affected length of Avenue 53 west of Monroe Street is unnecessary for
either present or prospective public use or purposes, including use as a non -
motorized transportation facility.
3. No local public agency or utility has submitted an objection to the proposed
vacation of the length of Avenue 53 west of Monroe Street.
4. Approval and adoption of the proposed vacation of a length of Avenue 53 west
of Monroe Street will not cause a significant negative impact upon the
environment, due, in part, to the fact that extinguishment of the right-of-way
will restore possession of the vacated length of Avenue 53 west of Monroe
Street to the vested owners of the abutting parcel of real property.
Resolution No. 2006-
Vacating Length of Avenue 53
Adopted: December 5, 2006
Page 2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
LA QUINTA, CALIFORNIA, AS FOLLOWS:
SECTION 1: The City Council, having elected to proceed under the provisions of
Chapter 3 of the Public Streets, Highways and Service Easement Vacation Law of the
State of California, and having held a public hearing upon due notice as provided
therein, hereby finds from all evidence submitted that the length of Avenue 53 west of
Monroe Street, specifically described in Attachments 1-2, attached hereto and
incorporated herein, is unnecessary for either present or prospective public use or
purposes, including use as non -motorized transportation facilities.
SECTION 2: The City Council hereby orders the vacation of the length of
Avenue 53 west of Monroe Street, as shown in Attachments 1-2 attached hereto and
incorporated herein.
SECTION 3: The City Council hereby determines that adoption of the vacation
will cause no significant negative environmental impact.
SECTION 4: The City Council hereby orders that the vacation shall not be
effective until a certified copy of this Resolution has been recorded with the Riverside
County Recorder.
SECTION 5: The City Council hereby determines and orders that the City Clerk
is hereby authorized and directed to record a certified copy of this Resolution in the
Office of the County Recorder of Riverside County, California.
PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta City
Council held on this 5th day of December, 2006, by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
- J.
Resolution No. 2006-
Vacating Length of Avenue 53
Adopted: December 5, 2006
Page 2
Don Adolph, Mayor
City of La Quinta, California
ATTEST:
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
(City Seal)
APPROVED AS TO FORM:
M. Katherine Jenson, City Attorney
City of La Quinta, California
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EXHIBIT "A"
PARCEL A (STREET VACATION)
THOSE PORTIONS OF SECTION 10, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN
BERNARDINO MERIDIAN IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF
CALIFORNIA, AS SHOWN ON TRACT MAP NO. 29894-1 FILED IN BOOK 305, PAGES 14
THROUGH 22, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
THE SOUTH 30.00 FEET OF THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER
OF SAID SECTION 10,
TOGETHER WITH THE NORTH 30.00 FEET OF THE NORTHEAST QUARTER OF THE
SOUTHWEST QUARTER OF SAID SECTION 10,
TOGETHER WITH THE SOUTH 30.00 FEET OF THE NORTHEAST QUARTER OF SAID
SECTION 10,
TOGETHER WITH THE NORTH 30.00 FEET OF THE SOUTHEAST QUARTER OF SAID
SECTION 10,
TOGETHER WITH LOT 'B' OF TRACT NO. 31874-1 AS SHOWN ON A MAP FILED IN BOOK
372, PAGES 34 THROUGH 37, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY,
EXCEPT THEREFROM THOSE PORTIONS LYING EASTERLY OF THE FOLLOWING
DESCRIBED LINE:
BEGINNING AT THE MOST WESTERLY CORNER OF LOT 'V' OF TRACT NO. 33076-1 AS
SHOWN ON A MAP FILED IN BOOK 388, PAGES 57 THROUGH 79, OF MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY, SAID POINT BEING THE
NORTHWESTERLY TERMINUS OF THAT CERTAIN CURVE IN THE GENERALLY SOUTHERLY
LINE OF SAID PARCEL'V', CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 49.00 FEET,
A RADIAL LINE THROUGH SAID POINT BEARS NORTH 55001'01" EAST; THENCE
NORTHWESTERLY, NORTHERLY, AND NORTHEASTERLY ALONG THE NORTHWESTERLY,
NORTHERLY, AND NORTHEASTERLY PROLONGATION OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 75037'53" AN ARC LENGTH OF 64.68 FEET TO THE NORTH LINE OF
SAID SOUTH 30.00 FEET OF THE NORTHEAST QUARTER OF SECTION 10; THENCE
LEAVING SAID NORTH LINE NORTH 63051'33" WEST, 15.76 FEET TO THE MOST
SOUTHWESTERLY CORNER OF LOT'C' OF SAID TRACT NO. 31874-1.
THE ABOVE DESCRIBED PARCEL CONTAINS 4.379 ACRES, MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B', ATTACHED HERETO AND MADE A
PART HEREOF.
THE REAL PROPERTY DESCRIBED HEREIN HAS BEEN PREPARED BY ME, OR UNDER MY
DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYOR'S ACT.
DEAN J. BOULDIN- P.L.S. 7842
REGISTRATION EXPIRES 12/31/0
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No. 7842
* Exp. 12/31/06
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ATTACHMENT 4
V4 AT E q ESTABLISHED IN 1918 AS A PUBLIC AGENCY
COACHELLA VALLEY WATER DISTRICT
POST OFFICE BOX 1058 • COACHELLA, CALIFORNIA 92236 • TELEPHONE (760) 398-2651 • FAX (760) 398-3711
DIRECTORS.
OFFICERS:
PETER NELSON, PRESIDSW:
STEVEN 8, ROBBINS.
PATRICIA A. LARSON. Y."..E PRESIDENT
GENERAL MANAGER -CHIEF ENGINEER
TELLIS CODEKAS
MARX BEUHLER,
JOHN W. MCFADDEN
ASST. GENERAL MANAGER
RUSSELL KITAHARA
July 272006 JULIA FERNANDEZ, SECRETARY
y, DAN PARKS, ASST. TO GENERAL MANAGER
RHAYINE AND SHERRILL, ATTORNEYS
File: 0652.41
Brian A. Ching, Associate Engineer
City of La Quinta
Public Works Department RE, CLI IVED
Post Office Box 1504 0 > 2006
La Quinta, CA 92247-1504 AUG
Dear Mr. Ching: PUBLIC WORKS
Subject: Proposed Vacating of RW-V 2005-014 and
SV 2006-042, Vacate a Portion of Avenue 53
The Coachella Valley Water District (District) has no objections to the vacating of that
portion of Avenue 53 lying west of Monroe Street and east of Madison Street in the City of
La Quinta, providing the abandonment resolution provide for easement reservation to the
United States Department of the Interior Bureau of Reclamation and the District as provided
in Section 8340(c) of the California Streets and Highways Code.
The United States Department of the Interior Bureau of Reclamation owns Irrigation Lateral
No. 119.65, located within easement recorded as Instrument No. 2006-0507001 on July 12,
2006 in Riverside County. The District operates and maintains this lateral. Access and all
easement rights must be maintained.
If you have any questions or need additional information, please contact Chris Morley,
Right -of -Way Specialist, extension 2523.
Yours very truly,
t CfI �
Mark L. Johnson
Director of Engineering
CM:IM\eng\m\06\JuW, hing
060710-1 TRUE CONSERVATION
060710-z o6o7w-a USE WATER WISELY
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060710-4
/ Q
4 4 Qum&
E`N OF
COUNCIL/RDA MEETING DATE: November 7, 2006
ITEM TITLE: Public Hearing to Consider Adoption of
a Resolution of the City Council Increasing the Fee
for Coverage Under the Coachella Valley Fringe -Toed
Lizard Habitat Conservation Plan to $2,371 Per
Disturbed Acre
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt a Resolution of the City Council approving the fee increase for coverage under
the Coachella Valley Fringe -toed Lizard (CVFTL) Habitat Conservation Plan (HCP) to
$2,371 per disturbed acre.
FISCAL IMPLICATIONS:
The current CVFTL HCP fee is $600 per disturbed acre. The revised fee determined by
the Nexus Study (Attachment 1) is $2,371 per disturbed acre. It is estimated that
1,331 acres would develop and pay the fee each year within the Coachella Valley,
making the Valley -wide annual revenue from the revised fee $3,155,801. The fees are
paid by private developments. While the City incurs staff time in determining and
collecting the CVFTL HCP fee, loss of the Consistency Determination would require a
significant increase in staff time to review individual projects with regard to impacts to
the CVFTL.
CHARTER CITY IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
In 1986, CVFTL HCP was approved and resulted in the issuance of an ESA Section
10(a) incidental take permit ("Permit") by the U.S. Fish and Wildlife Service (USFWS)
to the Cities and County to authorize take of CVFTL resulting from land development
and other activities covered by the HCP. The California Department of Fish and Game
(CDFG) did not sign the HCP or authorize incidental take of CVFTL associated with the
HCP because a permitting process had not been established under the California
Endangered Species Act (CESA) at the time the HCP was .developed, but CDFG
nonetheless participated in implementation of the HCP. The Cities and the County
entered a Memorandum of Understanding with USFWS and CDFG on March 21, 2001
(2001 MOU) whereby CDFG made a Consistency Determination pursuant to Section
2080.1 of the Fish and Game Code finding that the FWS permit in combination with
the mitigation provided in the Memorandum of Understanding is consistent with CESA.
The Parties to the 2001 MOU agreed that the CVFTL can best be protected by
inclusion of the species in the Multi -Species Habitat Conservation Plan (MSHCP), and
included in the MOU certain measures to be implemented on an interim basis to protect
the CVFTL until the MSHCP is in place. The 2001 MOU, as subsequently amended,
expired June 30, 2006; however, the MSHCP has not been implemented because it
was not approved by the City of Desert Hot Springs. The Cities and the County desire
to maintain the Permit for the CVFTL in effect until the revised MSHCP and related
documents can be prepared and incidental take permits issued by the FWS and CDFG.
Loss of the Consistency Determination would have several ramifications:
1. CESA- Projects that may "take" the lizard will be required to obtain individual
permits from DFG.
2. Litigation on the federal permit - The federal lizard permit is vulnerable to
litigation as the federal permit only permits "take" that is "incidental to an
otherwise lawful activity". The Center for Biological Diversity, in a letter to
FWS dated May 30, 2006, threatened litigation on the CVFTL HCP.
3. California Environmental Quality Act (CEQA) - Projects in potential lizard habitat
may now be required to do full environmental impact reports because of the
CEQA "mandatory findings of significance" provision for endangered species.
As the CVFTL HCP fee mitigation area is quite large, the CEQA ramifications are
potentially significant.
CDFG informed the Cities and the County through the Coachella Valley Association of
Governments (CVAG) that it would extend the Consistency Determination for the
CVFTL Permit under certain conditions, including that the Cities and the County
consider a revised CVFTL mitigation fee based on a Nexus Study. A revised fee is
appropriate because USFWS and CDFG have previously expressed concern relative to
the adequacy of the original CVFTL HCP, and the existing fee has not been adjusted.
The MSHCP is intended to address those concerns. To maintain the CVFTL Permit in
effect until completion of the MSHCP, a new fee is needed to ensure acquisition of the
lands needed to adequately conserve the CVFTL until the MSHCP can be completed
and implemented. This report documents the legal and policy basis to support
adoption of the revised CVFTL mitigation fee by the Cities and the County of Riverside.
A Nexus Study intended to satisfy the requirements of California Government Code
66000 et seq. with respect to the establishment of a new fee or increase in the
amount of an existing fee was performed by Muni -Financial under contract to CVAG.
This Nexus Study determined the new fee to be $2,371 per disturbed acre.
i
Public Notice
A notice regarding the proposed adoption of the Coachella Valley Fringe -Toed Lizard
Habitat Mitigation Fee Nexus Study and fee increase was advertised in The Desert Sun
newspaper on November 22, 2006. To date, no correspondence has been received.
Any comments received will be handed out at the meeting.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Adopt a Resolution of the City Council approving the fee increase for coverage
under the Coachella Valley Fringe -toed Lizard (CVFTL) Habitat Conservation Plan
(HCP) to $2,371 per disturbed acre; or
2. Do not adopt a Resolution of the City Council approving the fee increase for
coverage under the Coachella Valley Fringe -toed Lizard (CVFTL) Habitat
Conservation Plan (HCP) to $2,371 per disturbed acre; or
6. Provide staff with alternative direction.
Respectfully submitted,
4Douga4s.vans
Community Development Director
Approved for submission by:
Thomas P. Genovese, City Manager
Attachment: 1. CVAG Nexus Study
RESOLUTION NO. 2006
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA, CALIFORNIA INCREASING THE FRINGE -
TOED LIZARD MITIGATION FEE FOR DEVELOPMENT
WITHIN HISTORICAL HABITAT AS IDENTIFIED IN THE
COACHELLA VALLEY FRINGE -TOED LIZARD HABITAT
CONSERVATION PLAN
WHEREAS, the Cities of the Coachella Valley, County of Riverside,
Coachella Valley Association of Governments, California Department of Fish and
Game, U.S. Fish and Wildlife Service and The Nature Conservancy cooperated in
the preparation of the Coachella Valley Fringe -Toed Lizard ("CVFTL") Habitat
Conservation Plan ("HCP"), which was implemented through agreements and other
documents signed by the parties (collectively the "HCP Agreement");
WHEREAS, all new development projects within certain designated
historical habitat areas of the CVFTL as identified in the HCP Agreement
("designated mitigation fee area") will have direct and cumulative impacts on the
CVFTL, its potential habitat or the ecological processes necessary to sustain that
habitat such that mitigation is necessary in order to preserve the species;
WHEREAS, all new development within the designated mitigation fee
area will directly or indirectly benefit by funding a comprehensive approach to
habitat mitigation;
WHEREAS, the HCP Agreement has identified, as a priority, critical
sand source area that must be purchased for conservation in order to adequately
protect the CVFTL and its habitat;
WHEREAS, each newly developed acre within the designated
mitigation fee area has approximately the same proportionate impact on the loss of
habitat so that each proposed acre to be disturbed is proportionate to the total cost
of acquiring the priority sand source areas identified in the HCP Agreement;
WHEREAS, the HCP Agreement provides for the acquisition and
protection of designated priority sand source areas and provides that acquisition be
funded primarily through a mitigation fee last established at $600 per disturbed
acre, to be collected from land owners who obtain grading or building permits from
the Cities or County for projects within the designated mitigation fee area;
WHEREAS, substantial evidence exists that the current $600/acre fee
is insufficient to acquire all priority sand source areas previously identified as
necessary to insure viable preserves capable of perpetuating the species;
r
City Council Resolution 2006-_
Fringe -Toed Lizard Mitigation Fee Increase
Adopted: December 5, 2006
WHEREAS, an increase in the fee is needed to insure acquisition of the
priority sand source area needed to adequately conserve the CVFTL;
WHEREAS, an updated Nexus Study has now been completed, a copy
of which has been available for public review for more than ten (10) days, and the
City published a public hearing notice on November 22, 2006; and
WHEREAS, the Nexus Study has considered the remaining acreage of
priority sand source areas to be purchased for conservation, the projected cost of
acquisition, and the anticipated amount of acreage within the designated mitigation
fee area to be developed, which data demonstrates that the mitigation fee must be
increased to $2,371 per disturbed acre in order to meet the above -referenced goals
of the HCP;
WHEREAS, the formula for determining the increase in the mitigation
fee is calculated on a per acre basis relative to each proposed project as its size is
measured in acres such that there is a reasonable relationship between the
increased fee to be charged for each proposed project and the corresponding
impact of that project on the proportionate cost of conservation of priority sand
source area necessary for habitat protection;
WHEREAS, notice of the public hearing on the adoption of this
Resolution has been given as required by law;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City
of La Quinta, California that the Fringe -Toed Lizard mitigation fee imposed through
the HCP Agreement shall be raised to $2,371/acre effective February 1, 2007.
PASSED, APPROVED and ADOPTED at a regular meeting of the City
Council, held this 5th day of December, 2006, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
DON ADOLPH, Mayor r
City of La Quinta, California `
City Council Resolution 2006-_
Fringe -Toed Lizard Mitigation Fee Increase
Adopted: December 5, 2006
ATTEST:
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
FRINGE -TOED LIZARD HABITAT
MITIGATION FEE
FINAL
AS APPROVED BY THE CVAG EXECUTIVE
COMMITTEE
SEPTEMBER 25, 2006
COACHELLA VALLEY ASSOCIATION OF
GOVERNMENTS
Oakland Office
1700 Broadway
6" Floor
Oakland, CA 94612
Tel: (510) 832-0899
Fax: (510) 832-0898
aMuniFinancial
Corporate Office
27368 Via Industria
Suite 110
Temecula, CA 92590
Tel: (800) 755-MUNI (6864)
Fax: (909) 587-3510
www.muni.com
Other Regional Offices
Lancaster, CA
Sacramento, CA
San Diego, CA
Phoenix, AZ
Bellevue, WA
Lake Alfred, FL
TABLE OF CONTENTS
INTRODUCTION...................................................................................... 1
COACHELLA VALLEY FRINGE -TOED LIZARD MITIGATION FEE AREA............ 3
NEED FOR HABITAT CONSERVATION....................................................... 6
COST OF HABITAT ACQUISITION............................................................. 8
COST ALLOCATION AND FEE SCHEDULE ................................................ 10
MITIGATION FEE ACT FINDINGS............................................................ 11
Purpose of Fee 11
Use of Fee Revenues 11
Benefit Relationship 12
Burden Relationship 12
Proportionality 13
INTRODUCTION
This study develops a nexus between new development and the need for a fee to purchase
undeveloped land in the Coachella Valley for the purposes of protecting the habitat of the
Coachella Valley Fringe -toed Lizard (CVFTL).
In 1986, a Coachella Valley Fringe -toed Lizard Habitat Conservation Plan (HCP) was
approved and resulted in the issuance of a federal Endangered Species Act Section 10(a)
incidental take permit C Permit') by the U.S. Fish and Wildlife Service (USFWS). The
Permit enabled the participating cities and Riverside County to authorize take of CVFFL
habitat resulting from land development and other activities covered by the HCP.1 The
California Department of Fish and Game (CDFG) did not sign the HCP or authorize
incidental take of CVFFL associated with the HCP because a permitting process had not
been established under California Endangered Species Act (CESA) at the time the HCP was
developed. Regardless, CDFG participated in implementation of the HCP.
The cities and the County entered a Memorandum of Understanding with USFWS and
CDFG on March 21, 2001 (2001 MOU) whereby CDFG made a determination finding that
the FWS permit in combination with the mitigation provided in the Memorandum of
Understanding is consistent with CFSA.2 The parties to the 2001 MOU agreed that the
CVFTL can best be protected by inclusion of the species in a Multiple Species Habitat
Conservation Plan (MSHCP). The MOU included certain measures to be implemented on
an interim basis to protect the CVFTL until an MSHCP is in place. The MOU, as
subsequently amended, expired June 30, 2006.
The Coachella Valley Association of Governments (CVAG) prepared an MSHCP but it was
not completed because the City of Desert Hot Springs did not approve it. The cities and the
County desire to maintain the Permit for the CVFrL in effect until the revised MSHCP
excluding Desert Hot Springs can be prepared and incidental take permits issued by the
FWS and CDFG.
CDFG informed the cities and the County through CVAG that it would extend its
consistency funding for the CVFTL Permit under certain conditions. One such condition
was that the cities and the County adopt a revised CVFM mitigation fee based on a nexus
study. A revised fee is appropriate because USFWS and CDFG have previously expressed
concern with the adequacy of funding for the original CVFTL HCP. The MSHCP is
intended to address those concerns.
To maintain the Permit in effect until completion of the MSHCP, a new fee is needed to
ensure acquisition of the lands needed to adequately conserve CVFFL habitat This report
documents the legal and policy basis to support adoption of the revised CVFTL habitat
mitigation fee by the cities and the County of Riverside. The report is intended to satisfy the
1 Participating cities: Palm Springs, Cathedral City, Rancho Mirage, Palm Desert, ladian Wells, La Quints, Indo
and Coachella
2 Detennination pursuant to Section 2080.1 of the Fish and Game Code.
EMtutiFmantd 1
Fringe -toed Ljw d Habitat Mikgation Fre Goaebetla YatlryAuoaation ajGovemmentr
requirements of Mitigation Fee Act (California Government Code 66000 et seg.), the statutory
authority that governs the development and implementation of impact fees in California.
a
COACHELLA VALLEY FRINGE -TOED LIZARD
MITIGATION FEE AREA
The CVFM mitigation fee area was delineated in the 1986 HCP as the blowsand ecosystem
in the historic range of the CVFrL As stated in the HCP, `Because the CVFM depends on
continuance of the natural blowsand process, conservation of the lizard requires that its
blowsand habitat be conserved not only the sandy areas actually occupied by the lizard, but
sand source areas as well" The HCP stated that as of 1986, "about 81,500 acres of the
Valley are undisturbed occupiable habitat". Of this, "the fee assessment area will apply to
about 70,000 acres of historic CVFTL habitat, of which 51,000 acres will be developable
without any restriction." Since 1986, a significant portion of this area, approximately 39,260
acres, has developed and paid the fee established in conjunction with the HCP. The entire
mitigation fee area is shown in Figure 1
The acreage to which the CVFM Mitigation Fee would be applied is 13,477 acres. This was
calculated as follows:
• CVAG identified all privately -owned vacant parcels in the CVFTL fee area
outside the areas proposed for conservation under the MSHCP using aerial
photo analysis. The date of the aerial photo is September 15, 2005.
• Based on GIS analysis, CVAG staff estimates that ten percent of private vacant
land within MSHCP Conservation Areas, net of acreage to be acquired for
habitat (see next section), will be developed
• Where general plan designations limit development to one unit per five acres or a
lesser density, it was assumed based on historical development patterns that the
fee paid would be based on 0.5 acres of a parcel actually being disturbed. This
was factored into the calculation of the acres on which the fee would be
collected.
• The acreage was further adjusted to account for development/disturbance in the
CVFFL fee area since the date of the aerial photo. This was derived from the fee
payment records maintained by CNLM from the date of the aerial photo.
Table 1 displays the calculation of the remaining acres to be developed within the mitigation
fee area.
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Fnego-toed ligwd Hab"M,gation Fee C�&& ValkyAnodatioa ofGwrenrmrtr
Table 1: Vacant Land To Be Developed
Outiside MSHCP Conservaation Areas
Residential (> 1 unit per 5 acres) and all nonresidential 12,617
Residential (<=1 unit per 5 acres)' 1,012
Inside MSHCP Conservaation Areas 1,570
Subtotal - Projected Development 15,199
Acres developed September 2005 to September 2006 (1,7221
Remaining Acres To Be Developed 13,477
Note: Development potential on vancant land based on General Plan designations and
aerial photograpiry as of September 15, 2005.
' Based on disturbance of 0.5 acres for each parcel.
`Based on 10 percent of vacant private land designated for development.
Sources: Coachella Valley Association of Governments; MuniRnancial.
�fRf�'�Iriffi16101 S �� v
NEED FOR HABITAT CONSERVATION
The HCP noted that nearly half of the 81,500 acres of habitat that could be occupied by the
CVFTL is already undergoing irreversible degradation due to man's interference with the
wind blown sand transport system" In the late 1990s, USFWS and CDFG noted concerns
regarding the adequacy of the HCP preserves for the preservation of the CVFTL. Certain
sand source and sand transport areas had either not been adequately delineated in the 1986
HCP or were being threatened with more intense development than anticipated. As a result,
the 2001 MOU identified additional sand source areas in the Willow Hole, and Thousand
Palms areas to be conserved through an interim acquisition program and, in the long-term,
through inclusion of the CVFTL in the MSHCP. At the same time, the CVFIL HCP was
amended to remove these high priority acquisition areas from the area covered by the
CVFTL Permit. Figure 2 shows these two high priority acquisition areas. The total of
undeveloped private land in these areas is approximately 2,260 acres, comprised of 930 acres
in the Thousand Palms area and 1,330 acres in the Willow Hole area (acres rounded to the
nearest ten).
j3MunFi wcW 6
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COST OF HA®ITAT ACQUISITION
The cost to acquire the high priority acquisition areas in the Willow Hole and Thousand
Palms areas is based on the following factors:
• Land values (purchase price for these acres) are based on the 2005 Market Study
prepared for the MSHCP (AMmketStudy ofi wd Vahw, Belated to SetxralAnar of
Pmrpccare Acgaiaition, Arroaakd miib the Coatbella Valley Mtr/apk Speau Habitat
Conn wtion Plan, Scarcella, July 2005). The 2005 values have been increased by a
3% inflation factor to provide 2006 values. The total land value is $31,170,100.
• Implementation costs which include improvements, appraisals, site inspections,
escrow fees, and other costs incurred in the acquisition of the land, maintenance
of habitat, and implementation of the fee. The implementation costs are
estimated to be 2.5 percent of the total land costs based on experience with the
CVFIZ mitigation fee program to date. Should the actual costs differ from 2.5
percent the total land costs, the fee should be revised
Table 2 on the following page shows land costs based on the 2005 Market Study. Total
costs for land acquisition are based on low medium and high values estimated for each area
and the percent of total acres likely to be acquired at each cost level. Total costs are inflated
three percent to estimate in today's (2006) dollars. Table 3 shows the total costs to be
funded by the mitigation fee including implementation costs..
n&H781 8 - r
FdngedoedLJZ-dHab"MiBg mFee Cmdv&V4LLyAmodahemofGaveramentr
Table 2: Market Value of Habitat Conservation Land
Acquisition
Low -Range
Mid42ange
HighAange
Priority Area
Per Acre
Per Acre
Per Acre Total
Willow Hole Total Acres (A):
1.330
1.330
1,330
Percent of Total Aces (13):
,10%
70° ,
Aaes (C = A x El):
133
931
268
Average cost per acre (D):
S 2,500 S
If-
; 20,000
Cost (E = C x D):
$ 332,500 $
10,473.750
$ 5.320,000 $ 16,126,250
Vtal
Total Acres (A): 930
930
930
Percent of Total Acres(8): 50%
45%
a
Acres (C = A x 8): 465
418.5
46.5
Average cost per ace (D): S 2,000
S 26.000
; 50.000
Cost (E = C x D): $ 930.000
S 10.881,000
$ 2.325.000
S 14,136,000
Market Value of Habitat Conservation Lend (2005)
$ 30,262.250
Inflation Factor (2005 to 2006)
1.03
Market Value of Habitat Conservation Land (2006)
$ 31,170.100
Scums A Mahel ShdyoYLaad VMm, Fk*W b SewnlAnme a(Pmp*C&m Aelasib4 Asaxbled wah 6. Coaq,elk Vabynu6yb Spades
HWbWC-,wveam pion, So c-1h. ,hy 2005. MwSinandg
Table 3: Total Cost of Habitat
Average Unix
Inventory Cost Value
Land Z260 acres $ 13,800 $ 31,170.100
2.5% Implementation Costs' NA NA 779,300
Total 31,949,400
Implementation costs include land acquisition costs and improvement costs.
Sources: Coachella valley Association of Govemnrerds; Table 2; MradFinandal.
Nfwlmanaat 9 ..
COST ALLOCATION AND FEE SCHEDULE
The cost of the acquisition program is allocated to all the potentially developable land in the
CVFIT, mitigation fee area as calculated in Table 1 and shown in Figure 2. As previously
described, the total disturbed acreage on which the fee would be imposed is 13,477 acres.
Spreading the total cost equally across this acreage results in a per acre fee of $2,371. If this
fee were to be in place for more than one year, it is recommended that it be adjusted
annually for inflation. The CVFITL fee is expected to be replaced by the MSHCP fee when
the MSHCP is implemented. The MSHCP fee would provide mitigation for the CVFTT, and
all other covered species and natural communities included in the MSHCP.
Table 4: Fee Calculation
Cost of habitat acquisition $ 31,949,400
Acreage to be developed 13.477
Fee per acre of new development $ 2,371
Smmes: Tables 1 and 3; MuniRnamial.
tUkml 10 r
MITIGATION FEE ACT FINDINGS
Fees are assessed and typically paid when a building permit is issued and imposed on new
development projects by local agencies responsible for regulating land use (cities and
counties). To guide the imposition of facilities fees, the California State Legislature adopted
the Mitigation Fee Act with Assembly Bill 1600 in 1487 and subsequent amendments. The
Mitgation Fee At, contained in California Gorrrnment Cade §§66000 — 66025, establishes
requirements on local agencies for the imposition and administration of fees. The Act
requires local agencies to document five statutory findings when adopting fees.
The five findings in the Aa required for adoption of the maximum justified fees
documented in this report are: 1) Purpose of fee, 2) Use of fee Revenues, 3) Benefit
Relationship, 4) Burden Relationship, and 5) Proportionality. They are each discussed below
and are supported throughout the rest of this report.
PURPOSE OF FEE
• Identfy the purpose of the fee (166001(a)(1) of the Act).
The purpose of the CVFTL fee is to provide a funding source from new development for
the acquisition of habitat and related implementation costs to mitigate development impacts
to the CVFTL. The fee advances a legitimate public interest by funding habitat conservation
necessary to keep the CVFTL Permit in effect until the MSHCP can be completed
USE OF FEE REVENUES
• Identify the use to mhicb the fees ndll be put If the use isf wnang fad&tiu, the faikft s sbad be
idendfud. That dwhfication may, but need not, be made by reform to a capital LVmmmentplan
as.pedited in 565403 or166002, may be made in applicable general or spa#cplan requirements,
or may be made in otberpubb'c documents that idantify the facilidesfor wl icb the fees are cbmged
(1Tf66001(a)(2) of t1k Aa).
The revenue from the CVFI'L fee will be used to fund the acquisition of land for the
conservation of CVFTL habitat, and will facilitate public and private project compliance
with federal and state endangered species laws.
The revenue would provide most of the funding necessary to acquire an estimated 2,260
acres of habitat, and pay for related program implementation costs. This habitat acquisition
program mitigates the loss of CVFTL individuals and habitat caused by all development in
the historic habitat of the species. The original CVFM HCP, supplemented by the 2001
MOU among the cities, the County, USFWS, CDFG, and the Center for Natural Lands
Management (CNLM) represents the public documents referenced in the statute that
adequately identify the amount, type, and general location of land to be acquired with
CVFTL fees.
118tatiFnancial 11 � *'
FriogrraedlitwdHa&AdAioiad nFee Cwbdh VatkyAuoaatiex ofGooe =xU
The agencies responsible for implementing the CVFTL fee will restrict the use of fee
revenues to one-time costs associated with the habitat acquisition program. These costs
include:
Purchase price of acquired land.
Implementation costs including, but not limited to: acquisition -related costs,
appraisals, escrow fees, hazardous materials site inspections and land improvements
such as fencing to protect habitat from human impacts.
BENEFIT RELATIONSHIP
• Detemine the reasonable nladonrhip betaeen thefear' use and the type of dexhpmentpmjecton
which the fees an imposed (16600 1 (a) (3) of the Act).
All new development within the CVFTL mitigation fee area will directly or indirectly benefit
from the'CVFrL fee by funding a comprehensive approach to habitat mitigation. The
approximately 2,260 acres to be acquired in part with fee revenues were identified as high
priority acquisition areas in the 2001 MOU to protect the CVFTL until the implementation
of the MSHCP. The acquisition of these lands will mitigate for the impacts on CVF1L of all
new development and associated public infrastructure projects within the CVFTL mitigation
fee area during the term of the CVFTL Permit Each type of project leads to the elimination
of habitat Thus, there is a reasonable relationship between the use of CVFTL fee revenue
.and all types of new residential and nonresidential development that will pay the fee.
The use of CVFTL fee revenues is described in the section of this report titled Cott of Habitat
Acquudtiom
It C '■ ► � ■ E
• Detanne the traronaM relationship between the need for thepubhcfaah&es and the rypet of
derelapment on Aieb the fees an imposed (§66001 (a) (4) of the Act).
Allvacant lands in the historic habitat of the CVF1'L, as defined in the CVFTL HCP,
including vacant lands or partially vacant lands in urban areas, represent current or potential
habitat for the CVFTL. All new development projects on vacant or partially vacant lands
regardless of location will have direct and cumulative impacts on the CVFTL, its potential
habitat; or the ecological processes necessary to sustain that habitat. New development also
ecauses a need for, and benefits from, the installation of public infrastructure. Wrthout new
development, no further habitat conservation to mitigate for development impacts would be
needed. Therefore, there is a reasonable relationship between the need for habitat
conservation and all types of residential and nonresidential development throughout the
CVFTL historic habitat area that will pay the fee.
Habitat needs are described in the section of this report tided Needfor Habitat Conservation.
12
FtMrtbed U,Z d HabitatMikgadm Fa Cmd&B. V.&l A,raaaAioe ofGorrmmenrr
PROPORTIONALITY
• Detamne how that is a twonable relationrlup hetawn the fees amount and the cost of the
fadhtiet orportion of the faah&es attributabk to the dembpment on which the fee is imposed
(166001(b) of the Ad).
Each newly developed acre has appro�imateiy the same proportionate impact by causing the
direct, indirect, or cumulative, loss of an acre of potential habitat for CVFTL. For each
developed acre, another acre must be acquired in the habitat conservation area to mitigate
the effects of that development. The CVFTL fee is calculated on a per acre basis and the
total fee for a specific project is based on its size as measured in acres. Thus there is a
reasonable relationship between the fee fora specific development project and the direct
indirec% or cumulative impact of that project on the need for habitat protection.
See the Section of this report tided Coadxlla Talky Fringe -Toed Lirnd Mitigation Fee Ana for a
description of the amount of new development that is projected. See the section of this
report tided CostAllocation and Fee Scbeduk for a presentation of the mitigation fee schedule.
MMtm Finaraal 13
r. r.
0'J0
i
dr
COUNCIL/RDA MEETING DATE: December 5, 2006
ITEM TITLE: Continued Joint Public Hearing to
Consider a Proposed Disposition and Development
Agreement by and Between the La Quinta
Redevelopment Agency and LDD SilverRock, LLC for
the Sale and Development of 52 Acres of Agency
Property Located Southwest of the Intersection of
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION: _
PUBLIC HEARING:
Adopt a Resolution of the City Council approving the Disposition and Development
Agreement by and between the La Quinta Redevelopment Agency and LDD SilverRock,
LLC.
FISCAL IMPLICATIONS:
The Disposition and Development Agreement ("DDA") is structured as a series of
seven distinct sale and development transactions, including: 1) the 13.79-acre
Boutique Hotel Parcel; 2) the 2.43-acre Ranch House parking parcel ("Annex Parcel");
3) the 19.6 acre Resort Hotel Parcel; 4) the 3.82-acre "Lake Casitas Parcel" located
north of the Resort Hotel Parcel; 5) the 8.7-acre "Golf Casitas Parcel" located east of
the Resort Hotel Parcel; 6) the 11.8-acre Resort Retail Parcel; and 7) the .78 acre
"Black Box" Theater Parcel. Sale of each parcel is generally envisioned to occur in the
above -listed order. Accordingly, the first parcel to be sold to LDD SilverRock, LLC
("LDD") will be the Boutique Hotel Parcel, for a purchase price of $3,309,600. Initial
purchase prices have been established in the DDA for the remaining six parcels;
however, because development will be phased and parcels sold over time, the final
purchase prices will be determined by an appraisal that shall be conducted every three
years on or before the effective date of the DDA. (This is further explained in
Attachment No. 3 of the DDA). The initial purchase prices are as follows:
Parcel/
Use Acres Per Acre Total
Boutique Hotel
13.79
240,000
3,309,600
Ranch House Parking
2.43
-
585,000
Lake Casita
3.82
200,000
764,000
Golf Casita
8.63
200,000
1,726,000
Resort Hotel
19.65
200,000
3,930,000
Black Box
0.78
200,000
156,000
Total
49.10
$10,470,600
Additionally, as a guarantee of LDD's commitment to develop the project, LDD will
deposit a series of five "Option Payments" with an Escrow Agent. The Option
Payments will be used to reimburse LDD for costs incurred for the planning, designing,
processing entitlements, and environmental review for each project component. LDD
must request these reimbursements in writing, and the Agency shall approve the
release of requested funds. The initial Option Payment of $825,000 will be deposited
with the Escrow Agent no later that 30 days after the DDA effective date. (If the DDA
were approved on December 5, 2006, the first Option Payment would be due on
January 4, 2007). The second Option Payment of $825,000 would be due one year
after the initial Option Payment (i.e., January 2008); the third Option Payment of
$700,000 would be due in January 2009; the fourth Option Payment of $700,000
would be due in January 2010; and the fifth Option Payment of $200,000 would be
due in January 2011.
BACKGROUND AND OVERVIEW
In July 2002, the Agency purchased the 525-acre site, which was once the Howard
Ahmanson family ranch, with the goal of developing golf and resort/retail amenities for
visitors and residents that would provide ongoing revenues to the City in the form of
sales tax and transient occupancy tax. Phase I of SilverRock Resort was completed in
February 2005, when the Arnold Palmer Classic Course and Ahmanson Retreat and
Clubhouse (temporary clubhouse) were opened to the public.
In March 2005, the Agency entered into an Exclusive Negotiation Agreement (ENA)
with DDC Desert Development, Inc. (now known as LDD SilverRock, LLC) for the
development of a boutique hotel, resort hotel, resort retail, and casitas units on
approximately 55 acres within SilverRock Resort. Because of the project's complexity,
the ENA was extended three times, with the current expiration date being December
31, 2006. During the ENA period, LDD created a development plan, which was
adopted by the Agency Board on July 19, 2005. Agency staff, with the guidance and
direction of the Agency Board, has been negotiating a very complex DDA, which
establishes purchase prices, sales terms, project phasing and schedule of performance,
level of hotel services (i.e., "Four Star"), hotel operations convenants, etc. The
Summary Report (Attachment 1) and draft DDA (Attachment 2) are included for City
Council and Agency Board consideration.
552
Development Program
Boutique Hotel. The first project component to be developed is the Boutique Hotel,
which is defined in the DDA as an intimate, Four -Star quality hotel containing no more
than two hundred twenty-five (225) units, a sit-down restaurant that seats up to 80
persons concurrently inside and up to 40 persons concurrently outside, a first-class
spa and fitness facility, a pool, at least ten thousand square feet (10,000 s.f.) of
interior meeting space, and a parking structure containing at least one hundred fifty
(150) parking spaces. A development plan for the Ranch House parking parcel is being
developed by LDD, and it is assumed that development will generally track with the
Boutique Hotel, depending upon when the permanent clubhouse is completed.
Preliminary site planning efforts indicate that this parcel would be developed with 55
boutique hotel units.
Resort Hotel. Four Star Quality or higher luxury hotel containing approximately 283
Units, with associated amenities, including, but not limited to, a sit-down restaurant
that serves up to 100 persons concurrently inside and up to 60 persons concurrently
outside, a first-class spa and fitness center, a parking structure containing not fewer
than one hundred fifty (150) parking spaces, pools, and at least twenty thousand
square feet (20,000 s.f.) of interior meeting space. At least ninety (90) of the Units in
the Resort Hotel will be "traditional" Hotel Units (i.e., not individually owned).
Resort Retail. Approximately eighty-one thousand square feet (81,000 s.f.) of space,
with approximately forty thousand square feet (40,000 s.f.) of such space developed
for and dedicated to retail uses, fifteen thousand square feet (15,000 s.f.) of such
space developed for and designated to restaurant use, and twelve thousand square
feet 0 2,000 s.f.) of such space to be developed for and dedicated to residential uses
(i.e., resort -oriented office, live -work loft units, and multi -family residential units).
Lake Casitas. Approximately fifty units located to the north of the Resort Hotel parcel.
Golf Casitas. Approximately seventy-two units located to the east of the Resort Hotel
parcel.
Black Box Theater. A multi -purpose theater, cinema, or conference hall building,
containing approximately 7,000-7,500 square feet, with theater capacity for
approximately 250-300 persons. LDD is working on details regarding organizational
structure, fundraising, and operations for the black box theater. The development plan
will come before the City Council/Agency Board at a future date.
Schedule of Performance
A Schedule of Performance for each project component is included in the DDA as
Attachment 9. The Schedule of Performance shows the outside timeframe for the
various activities within each project component.
Condo-Hotel/Fractional Concept
It is anticipated that the majority of the hotel units will be condo -hotel units.
Additionally, the DDA also allows up to 30% of the total units to be fractional units.
Condo -Hotel Units are sold to an individual, third party owner, but, when not in use by
such owner, are included in the inventory of rooms available for transient occupancy
within the Project. Fractional Units are divided into multiple fractional interests,
including, without limitation, timeshare interests, each of which can either be owned
by a separate owner or by single owner, and each of which gives such owner the right
to use such Unit for a different period of time. The Development Agreement approved
by the City Council on November 21, 2006, creates the program that regulates the
amount of time owners can occupy their units on an annual basis, and establishes the
daily fee for stays beyond 29 days (the period under which TOT would be charged),
which will be paid to the City, based on the size of the unit. In addition, the Condo -
Hotel Units will be required to pay annual fees to the extent they did not generate
Transient Occupancy Tax (TOT) in the specified amounts. The fractional units will be
required to pay annual fees, regardless of occupancy and any TOT tax collected.
Revenue to the Agency/City
The Development will generate a combination of tax increment revenue that accrues to
the Agency, and transient occupancy, development permit fee, and sales tax revenue
that accrues to the City. The chart below presents the projected City/Agency income,
and the present value of this income, for the first 10 years of operation.
CITY INCOME: First 10 Years $ 50,468,910 AGENCY INCOME: First 10 Years $ 34,347,734
NET PRESENT VALUE $ 32,539,149 NET PRESENT VALUE $ 23,512,955
(6.5% discount rate) (6.5% discount rate)
In addition, staff conservatively projects that the Development will annually generate
26,000 rounds of golf.
Accompanying the staff report is a Summary Report that further details this
transaction.
FINDINGS AND ALTERNATIVES:
The alternatives available to the City Council include:
1. Adopt a Resolution of the City Council approving the Disposition and
Development Agreement by and between the La Quinta Redevelopment Agency
and LDD SilverRock, LLC; or
2. Do not adopt a Resolution of the City Council approving the Disposition and
Development Agreement by and between the La Quinta Redevelopment Agency
and LDD SilverRock, LLC; or
3. Provide staff with alternative direction.
554
Respectfully submitted,
'� �Zxzz'� zz�zyr'��
Thomas P. Genovese
City Manager
Attachments: 1
2
Summary Report
Disposition and Development Agreement
RESOLUTION 2006-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA APPROVING A DISPOSITION AND
DEVELOPMENT AGREEMENT BETWEEN THE LA QUINTA
REDEVELOPMENT AGENCY AND LDD SILVERROCK, LLC
FOR THE PROPERTY LOCATED SOUTHWEST OF THE
INTERSECTION OF JEFFERSON STREET AND AVENUE 52
DISPOSITION AND DEVELOPMENT AGREEMENT
LDD SILVERROCK, LLC
WHEREAS, the La Quinta Redevelopment Agency ("Agency") is a public
body, corporate and politic, organized and existing under the California Community
Redevelopment Law (Health & Safety Code ' 33000 et seq.) ("CRL"); and
WHEREAS, pursuant to the CRL, the City Council of the City of La Quinta
("City" or "City Council", as applicable) approved and adopted the Redevelopment Plan
("Redevelopment Plan") for La Quinta Project Area No. 1 ("Project Area"), on
November 29, 1983, by Ordinance No. 43; and
WHEREAS, the Agency staff has negotiated a Disposition and
Development Agreement ("Agreement") with LDD SilverRock, LLC, a Delaware limited
liability company ("Developer"), pursuant to which the Agency is to convey to the
Developer approximately 58.97 acres of real property located within the Project Area
(the "Property") for Twelve Million Five Hundred Forty Thousand Five Hundred
Seventy -One Dollars ($12,540,571) for the Developer's subsequent development
thereon of a resort commercial project containing a luxury four -star quality boutique
hotel, a luxury four -star quality resort hotel, condominium hotel units, a retail village,
resort units, and associated amenities, all as more particularly described in the
Agreement (collectively, the "Project"); and
WHEREAS, the Agreement provides that Agency may reacquire any
undeveloped portion of the Property that is then owned by the Developer in the event
the Developer fails to commence construction of any particular phase of the Project
within certain specified time frames, interrupts construction of a particular phase of
the Project for a specified period of time, or transfers a particular phase of the Project
in violation of the Agreement, all as more particularly described in the Agreement; and
WHEREAS, the Agreement requires the Developer to execute a
Development Agreement concurrently with execution of the Agreement, which
requires the recordation of restrictive covenants concerning the operation of the units
and the payment of annual resort fees by the owners thereof; and
WHEREAS, the Agreement requires that the Project be operated by
Destination Hotels & Resorts, Inc., which is an entity related to Developer, or another
operator with experience operating four -star quality hotels, for a period of ten years
F
City Council Resolution 2006-
Disposition and Development Agreement
LDD SilverRock, LLC
Adopted: December 5, 2006
(10), and that the Project be operated in a four -star quality condition for a period of
twenty (20) years, and requires the payment of liquidated damages in the event any
portion of the Project is not operated at a four -star quality; and
WHEREAS, the Agreement provides the Agency with discretion to lease
the retail portion of the Property to Developer or to the City, for subsequent lease to
the Developer, rather than selling such portion to Developer; and
WHEREAS, Health and Safety Code Section 33433 requires that the
Agency prepare a Summary Report to consider the Agency's proposed sale of the
Property as set forth in the Agreement, that the Agency Board and the City Council
conduct a noticed joint public hearing with respect to the Agreement, and that the
approval of the Agreement be accompanied by certain findings and determinations as
set forth herein; and
WHEREAS, a Summary Report for the Agreement has been prepared and
the joint public hearing has been conducted in accordance with applicable requirements
of law; and
WHEREAS, the City Council and the Redevelopment Agency have
considered all the information and evidence set forth in the Summary Report presented
by the City/Agency staff and presented by persons wishing to appear and be heard
concerning the impact of the Agreement on the Project Area and the City as a whole;
and
WHEREAS, the Agreement is in accordance with the Redevelopment Plan
and is of benefit to the Project Area and the City of La Quinta; and
WHEREAS, the City Council hereby determines that the Agency's sale of
the Property pursuant to the Agreement is necessary to effectuate the purposes of the
Redevelopment Plan;
WHEREAS, the City Council has complied with the requirements of the
California Environmental Quality Act, Public Resources Code Section 21000, et seq.,
prior to considering this Agreement. Specifically, the project to be implemented
through this Agreement was previously analyzed in the Mitigated Negative Declaration
for the SilverRock Project (EA No. 2002-453) and the Addendum thereto approved by
the City Council in Resolution No. 2006-082 in connection with the SilverRock Resort
Specific Plan, and that the circumstances and conditions have not changes, and the
project to be implemented is in substantial conformance with said Specific Plan, and
no further environmental review is required under Public Resources Code 21166.
S:\CityMgr\STAFF REPORTS ONLY\PH 2 CC Reso Approving LDD ODA.DOC
City Council Resolution 2006-
Disposition and Development Agreement
LDD SilverRock, LLC
Adopted: December 5, 2006
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF LA QUINTA AS FOLLOWS:
That the above recitals are true and correct and incorporated herein.
2. That the City Council of the City of La Quinta hereby resolves as follows:
A. The Agreement effectuates the purposes of the Community
Redevelopment Law (Health & Safety Code Section 33000 et seq.) and
of the Redevelopment Plan and is in the best interests of the citizens of
the City of La Quinta.
B. The Agency's sale of the Property will eliminate blight and is consistent
with the Agency's Five -Year Implementation Plan, based on the findings
and conclusions of the Summary Report, which is incorporated herein.
C. The Agency's sale of the Property will eliminate blight based on the
findings and conclusions of the Summary Report
D. The consideration the Developer will pay for the Property is not less than
the fair market value of the Property at its highest and best use in
accordance with the Redevelopment Plan, based on the findings and
conclusions of the Summary Report.
3. The Agreement, a copy of which is on file with the Agency Secretary, is hereby
approved. The City Council consents to the Agency's authorization and
direction to its Executive Director and Agency Counsel to make final
modifications to the Agreement that are consistent with the substantive terms
of the Agreement approved hereby, and to thereafter sign the Agreement on
behalf of the Agency.
4. The City Council consents to the Agency's authorization and direction to its
Executive Director to (i) sign such other and further documents, including but
not limited to subordination agreements and escrow instructions that require the
Agency's signature, and (ii) take such other and further actions, as may be
necessary and proper to carry out the terms of the Agreement.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City
Council of the City of La Quinta held this 51'' day of December, 2006, by the following
vote:
S:\CityMgr\STAFF REPORTS ONMPH 2 CC Reso Approving LDD DDA.DOC
City Council Resolution 2006-
Disposition and Development Agreement
LDD SilverRock, LLC
Adopted: December 5, 2006
AYES:
NOES:
ABSENT:
ABSTAIN:
DON ADOLPH, Mayor
City of La Quinta, California
ATTEST:
VERONICA J. MONTECINO, CMC, City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
!'r"I
S:\CityMgr\STAFF REPORTS ONLY\PH 2 CC Peso Approving LDD DDA.DOC
ATTACHMENT1
SECOND REVISED
SUMMARY REPORT
Disposition and Development Agreement
La Quinta Redevelopment Agency
And
LDD SILVERROCK, LLC.
A Delaware Limited Liability Company
November 30, 2006
INTRODUCTION
This is the Second Revised Summary Report ("Second Revised Report") for the
Disposition and Development Agreement ("Agreement") by and between the La Quinta
Redevelopment Agency ("Agency") and LDD SilverRock, LLC. ('Developer"). An initial
Report was prepared, dated November 7, 2006, that was subsequently updated and
replaced by the Revised Summary Report dated November 17, 2006. The Revised
Summary Report updated the financial aspects of this transaction as a result of the
following:
Adding a 2.43 acre parcel that the Agency would sell to the Developer per the
Agreement; this parcel adjoins the Ahmanson Ranch House and currently is
developed with parking for the Arnold Palmer Classic Golf Course Temporary
Clubhouse ('Ranch House Parking"). When the Agency builds the permanent
clubhouse, the 2.43 acre parcel will no longer be needed exclusively for parking
and may be developed with additional resort uses.
Revised site acreage due to the completion of the Tentative Tract Map.
Revised financial analysis due to the additional land (2.43 acre parcel), the
revised acreage, and the addition of site grading costs the Agency incurred.
Since November 17, the Agency and the Developer have been refining the Agreement to
accommodate development schedules, an Agency repurchase option, and final
adjustments to the Tentative Tract Map. In order to accurately report and track these
changes, the Agency prepared this Revised Summary Report.
The updates from the Revised Summary Report are indicated in bold type.
The Agreement facilitates the sale of up to 60.98 acres versus 58.97 acres to the
Developer and the development of 780 versus 775 hotel rooms, 157,433 square feet of
hotel operating assets, and 80,000 square feet of resort retail uses ('Development').
This transaction involves the SilverRock Resort, a 525 golf resort located southwest of
the Avenue 52 and Jefferson Street intersection in La Quinta Redevelopment Project
Area No. 1 ("Site").
J J V
12/1 /2006
This Second Revised Report has been prepared pursuant to Section 33433 of the
California Community Redevelopment Law ("Redevelopment Law") and presents the
following:
• A summary of the proposed Development.
• The cost of the Agreement to the Agency.
• The estimated value of the interest to be conveyed, determined at the highest
and best uses permitted by the Agency's Redevelopment Plan.
• The estimated value of the interest to be conveyed, determined at the use with
the conditions, covenants, and development costs required by the Agreement.
• An explanation of why the sale of the property pursuant to the Agreement will
assist in the elimination of blight.
DEVELOPMENT SUMMARY
Background
In 2002, the Agency purchased the Site from KSL Land Holdings to develop municipal
golf courses that would provide affordable golf opportunities for La Quinta residents, and
to facilitate resort hotel and retail development. Two of the blighting conditions cited for
establishing La Quinta Redevelopment Project Area No. 1 were the lack of recreation
facilities and the lack of enterprises that stimulate business activity. The Agency
purchased the Site in order to develop municipal/public golf and other passive recreation
uses, and to provide the Agency with the means to facilitate resort, hospitality, and
related development that will attract patrons to Project Area No. 1 and generate
additional demand for local businesses.
In 2003 the Agency approved the SilverRock Master Plan for the Site and retained
Palmer Course Design to design a tournament quality golf course. Mass grading and
golf course construction commenced in January 2004, with the Arnold Palmer Classic
Course opening in March 2005.
During this period Agency staff met with various resort developers and operators to
evaluate interest in building one or more hotel and resort complexes adjacent to the
Palmer Classic Course. A Request for Qualifications was circulated to 15 hotel
development and operator companies in August 2004. Qualifications statements were
received from 10 firms in October 2004 and the Agency Board approved an Exclusive
Negotiation Agreement with DDC Desert Development, Inc. (the Developer) on March
15, 2005. The Developer is affiliated with Lowe Enterprises, a firm that develops,
acquires and manages resorts and resort residential communities nationwide.
The Exclusive Negotiation Agreement initially covered the approximately 85 acres of
property designated in the SilverRock Master Plan for resort and retail uses. In June
2006, the Exclusive Negotiation Agreement was extended until November 30, 2006 and
the scope of the Exclusive Agreement was reduced to encompass the 60.98 acres that
are the subject of the Agreement. The Exclusive Negotiation Agreement was
subsequently extended until December 31, 2006 on November 21, 2006.
12/1/2006 2
Land Sale/Lease
The Agreement provides that the Agency will sell or lease 60.98 acres of land at
SilverRock Resort to the Developer at fair market land value, as further discussed below.
The Developer will then construct resort hotel, condominium resort hotel, hotel core
facilities, and retail uses over a 6 year period. The sale or lease of 60.98 acres to the
Developer would result in the following land allocation for the Site:
Developer. 11.6% of the total Site acreage; the 60.98 acres would be developed
as follows:
➢ 13.79 acres for the Boutique Hotel
➢ 2.43 acres for the Ranch House Parking boutique hotel units
➢ 32.88 acres for the Resort Hotel, Black Box, and Lake and Golf Casitas
units
➢ 11.80 acres for the Resort Retail.
City/Agencv. The City/Agency will retain 88.4°/a of the total Site acreage; the
464.02 acres are or are proposed to be developed as follows:
➢ 367.13 acres for the golf courses and associated uses
➢ 35 acres for a future civic park
➢ 30 acres for roads, trails and domestic water well sites
➢ 1.5 acres for the Ahmanson Ranch House
➢ 30.39 acres for future resort hotel land sale and development
The Agreement provides that the Developer will purchase and/or lease approximately
60.98 acres in 7 phases. The Developer would purchase the land designated for the
Boutique Hotel, the Ranch House Parking boutique hotel units, Resort Hotel, Lake
Casitas, Golf Casitas, and Black Box Theater. The Resort Retail land may be sold or
leased to the Developer as determined by market conditions when the Resort Retail site
is scheduled to be developed. If the land is purchased, the Agency would sell the
property to the Developer at fair market value. If the land is leased, the Agency would
transfer the property to the City of La Quinta, who would then lease the land to the
Developer for a 55 year term at a fair market lease value.
The Agreement also provides that if market conditions warrant a faster absorption
schedule and if the Developer can demonstrate that it has financing to purchase and
develop the Resort Hotel, Resort Retail, the Lake Casitas, the Golf Casitas, and the
Black Box Theater parcels per the Specific Plan and the Agreement, then the Agency's
Executive Director may authorize the sale of these parcels in advance of completing the
respective development programs outlined above.
Option Payments
The Developer will pay the Agency $3,250,000 in option payments as follows:
$825,000 upon Agreement execution
• $825,000 the first year after Agreement execution
$700,000 the second year after Agreement execution
$700,000 the third year after Agreement execution
12/1 /2006
• $200,000 the forth year after Agreement execution.
The Option Payments may be used by the Developer to fund design, engineering and
environmental specialist costs, and up to 35% of Developer management costs. The
Option Payments will be deposited into an escrow fund; fund disbursement would occur
after Agency receipt and approval of funding draw requests. Remaining option payment
funds may be applied to the land acquisition price.
Development Program
The Agreement provides that the Developer shall build the development program
established by the SilverRock Resort Specific Plan as follows:
Boutique Hotel & Ranch House Parking Boutique Hotel Units
➢ Up to 280 condominium hotel units with 310 keys
➢ 46,080 SF hotel operating asset: 12,000 SF meeting space, spa/fitness
facility, restaurant/lounge, retail, lobby, office/support
➢ 300 parking spaces
➢ At least 150 trellis covered parking
➢ 150-space parking structure
➢ 4 star quality hotel operating asset, guest room and service levels
Resort Hotel & Lake and Golf Casitas Units
➢ Up to 405 hotel rooms with 520 keys
➢ A minimum of 90 pure hotel rooms
➢ 157,433 SF hotel operating asset: 20,000 SF meeting space, spa/fitness
facility, restaurant/lounge, retail, lobby, office/support
➢ 750 parking spaces
➢ At least 30% of surface parking shall be covered with a trellis
➢ At least 150 spaces shall be housed in a parking structure
➢ Room count includes Resort Lake and Golf Casitas units
➢ 4 star quality hotel operating asset, guest room and service levels
Resort Retail
➢ Up to 80,000 SF in two story structures
• 40,000 SF retail
• 12,000 SF restaurant
• 7,000 SF office or additional retail
• 12,000 SF residential
➢ 350 parking spaces with at least 30% covered
• Black Box Theater
➢ A multi -purpose theater, cinema, or conference hall building, containing
approximately 7,000-7,500 square feet, with theater capacity for
approximately 250-300 persons. This use designated for a parcel that
will be located between the Resort Hotel and Resort Retail.
12/1 /2006
Environmental Review
The Agency processed the SilverRock Specific Plan which established the land use and
development standards for the Site. As part of the Specific Plan process, the Agency
processed an Addendum to the Mitigated Negative Declaration (MND) the Agency
adopted for the acquisition and development of the Site in May 2002. The Addendum
was adopted in July 2006.
THE COST OF THE AGREEMENT TO THE AGENCY
The total cost of the Agreement to the Agency is estimated to be $1,687,458 if the
Resort Retail land is transferred to the City and leased to the Developer. The Agency
would receive net income of $382,513 if the Agency sells the Resort Retail land to the
Developer.
The Agency's land purchase cost for the 60.98 acres was $80,952 per acre or
$4,936,476. Series 2003 Taxable Tax Allocation Bond proceeds (wherein bond holders
pay federal and state income tax on bond interest earnings) were used to purchase the
60.98 acres; bond interest expense, assumed to be a weighted average of 6% per
annum for the 29 year bond term, is projected to be $6,477,471. The total principal and
interest cost related to the land purchase would be $11,413,947.
The Agency also paid $744,111 for site planning and grading activities associated with
the Boutique Hotel, Ranch House Parking boutique hotel, and Resort Retail parcels.
These costs were funded through the Series 2003 Taxable Tax Allocation Bond
proceeds; bond interest expense, assumed to be a weighted average of 6% per annum
for the 29 year bond term, is projected to be $873,521. The total principal and interest
cost related to the planning and grading costs would be $1,617,632.
The total land purchase, site planning and grading costs (principal and interest)
will be $13,031,579. The chart below itemizes these costs on a per parcel basis.
Parcel/
Use
Acres
Acquisition
Design/
Grading
Intererst
Carry
Total
Boutique Hotel
13.79
$ 1,116.333
$ 168,273
$1,464,813
$ 2,749,420
Ranch House Parking
2.43
196,714
29,652
258,122
484,488
Lake Casita
3.82
309,238
46,614
405,771
761,623
Golf Casita
8.63
698,619
105,308
916,703
1,720,630
Resort Hotel
19.65
1,590,714
239,780
2,087,280
3,917,774
Black Box
0.78
63,143
9,518
82,854
155,515
Resort Retail
11.88
961,714
144,966
1,261,928
2,368,608
Total
60.98
$ 4,936,476
$ 744,111
$ 6,477,471
$12,158,058
If the Resort Retail land is transferred to the City, the Agency would receive land sale
income from the Boutique Hotel, the Ranch House Parking boutique hotel, the Resort
Hotel, the Lake and Golf Casitas parcels and the Black Box Theater parcel. Total land
r-
J
1211/2006
sale income would be $10,470,600. When applied to the total cost of $13,031,579, the
net cost to the Agency would be $1,687,458.
If the Resort Retail land is sold to the Developer, the Agency would receive land sale
income from the Boutique Hotel, the Ranch House Parking boutique hotel, Resort Hotel,
the Lake and Golf Casitas, the Resort Retail parcel, and the Black Box Theater parcel.
Total land sale income would be $12,540,571. When applied to the total cost of
$13,031,579, the Agency would receive net income of $382,513.
The Agreement provides that the land shall be reappraised 36 months after the effective
date of the Agreement, if the Developer has not acquired the 60.98 acres prior to this
date. This provision was included in order to insure that the land is sold to the
Developer at fair market value. If the reappraisal results in an increase or decrease in
land values, the resulting cost of the Agreement to the Agency would either decrease or
increase.
ESTIMATED VALUE OF INTEREST TO BE CONVEYED
The estimated value of the interest to be conveyed entails the fair market value of the
60.98 acres of land. The Agency commissioned two real property appraisals, prepared
by Michael A. Scarcella, MAI, of Capital Realty Advisors, that present an opinion of the
market value of the fee simple estate of the 60.98 acres. The first appraisal, established
the following sale and lease value as of August 1, 2006 all parcels except the Ranch
House Parking boutique hotel property; an opinion of the market value of the fee simple
estate of this parcel was established on November 20, 2006. The chart below presents
these values.
Parcel/
Use
Acres
Per Acre
Total
Boutique Hotel
13.79
240,000
3,309,600
Ranch House Parking
2.43
240,741
585,000
Lake Casita
3.82
200,000
764,000
Golf Casita
8.63
200,000
1,726,000
Resort Hotel
19.65
200,000
3,930,000
Black Box
0.78
200,000
156,000
Resort Retail
11.88
174,240
2,069,971
Total
60.98
$12,540,571
If the Resort Retail land is sold to the Developer, then the total value of the interest to be
conveyed is $12,540,571. If the Resort Retail land is transferred to the City and then
leased to the Developer, then the total value of the interest to be conveyed is
$10,470,600.
12/1/2006
The Agreement provides that the 60.98 acres of land be sold to the Developer at fair
market value. This value was established by the aforementioned real property appraisal.
This appraisal was prepared using the permitted land uses and development
requirements set forth in the July 18, 2006 SilverRock Resort Specific Plan. The
Agreement does not establish additional conditions, covenants and development costs
other than those imposed by the Specific Plan.
The Site is located in La Quinta Redevelopment Project Area No. 1 which was
established in December 1983. Two of the blighting conditions cited for establishing
Project Area No. 1 were the lack of recreation facilities and the lack of enterprises that
stimulate business activity. The land sale and development transactions facilitated by
the Agreement will result in additional resort and retail venues that will attract patrons to
Project Area No. 1 and generate additional demand for local businesses.
This Development contemplated by this Agreement was identified in the Agency's Third
Implementation Plan adopted in June 2005.
A copy of the proposed Agreement is attached to this Second Revised Report or
available for review at the City Hall. The proposed Agreement will be the subject of a
continued joint public hearing of the Agency and the La Quinta City Council on
December 5, 2006 at 7:00 PM or thereafter
in the City Council Chambers located at 78-495 Calle Tampico, La Quinta, California.
r.
12/1 /2006
ATTACHMENT 2 DRAFT
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic,
and
LDD SILVERROCK, LLC,
a Delaware limited liability company
882/015610-0084
737414.05 a12/01/06
TABLE OF CONTENTS
Page
100. DEFINITIONS..................................................................................................................I
200. CONVEYANCE OF THE PROPERTY...........................................................................9
201.
Disposition of the Property ...................................................................................
9
201.1 The Initial Escrow.....................................................................................9
201.2 The Second Escrow...................................................................................9
201.3 The Third Escrow...................................................................................10
201.4 The Fourth Escrow..................................................................................10
202.
Escrow.................................................................................................................11
202.1 Costs of Escrow......................................................................................11
202.2 Payment of Purchase Price......................................................................11
202.3 Escrow Instructions.................................................................................11
202.4 Authority of Escrow Agent.....................................................................12
202.5 Closing....................................................................................................12
202.6 Termination.............................................................................................13
202.7 Closing Procedure...................................................................................13
203.
Review of Title of Property................................................................................13
204.
Title Insurance....................................................................................................15
205.
Conditions of Closing.........................................................................................15
205.1 Agency's Conditions of Closing.............................................................15
205.2 Final Phasing Plan ...................................................................................18
205.3 Developer's Conditions of Closing.........................................................18
206.
Studies and Reports.............................................................................................19
206.1 Access to Property ..................................................................................19
206.2 Indemnification.......................................................................................20
207.
Condition of the Property ....................................................................................21
207.1 Disclosure...............................................................................................21
207.2 Investigation of Property.........................................................................21
207.3 No Further Warranties As To Property; Release of Agency ..................21
207.4 Developer Precautions After the Closing...............................................22
207.5 Developer Indemnity..............................................................................22
208.
Deposit Payments...............................................................................................23
208.1 Schedule of Payments.............................................................................23
208.2 Release of Deposit Payment Funds to Developer...................................23
208.3 Agency Retention of Deposit Payment Funds........................................25
209.
Right of First Refusal..........................................................................................25
300. DEVELOPMENT OF THE PROJECT..........................................................................27
301.
Scope of Development........................................................................................27
302.
Design Review....................................................................................................27
302.1 Developer Submissions...........................................................................27
302.2 City Review and Approval......................................................................27
302.3 Revisions.................................................................................................27
�- r
Page
302.4 Defects in Plans.......................................................................................27
302.5 Land Use Approvals...............................................................................28
303.
Schedule of Performance....................................................................................28
304.
Indemnity and Insurance Requirements..............................................................28
305.
Indemnity ............................................................................................................29
306.
Rights of Access.................................................................................................30
307.
Compliance With Laws; Payment of Taxes........................................................30
307.1 Compliance with Laws...........................................................................30
307.2 Taxes and Assessments...........................................................................30
308.
Release of Construction Covenants....................................................................31
309.
Financing of the Project......................................................................................31
309.1 Approval of Financing............................................................................31
309.2 Changes Requested by Lenders..............................................................32
309.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right
toCure.....................................................................................................32
309.4 Failure of Holder to Complete Project....................................................32
309.5 Right of the Agency to Cure Mortgage or Deed of Trust Default ..........33
309.6 Holder Not Obligated to Construct Project.............................................33
310.
Developer CC&Rs..............................................................................................33
311.
Interference with Municipal Golf Course...........................................................34
312.
Infrastructure Improvements...............................................................................34
312.1 The cost of any and all curb cuts necessary to connect any
portions of the Project to the backbone infrastructure within the
SilverRockResort Area..........................................................................34
312.2 The cost to restore or replace any of backbone infrastructure
within the SilverRock Resort Area Developer believes should
be altered once the City has completed the same...................................34
312.3 The cost to repair any damage to the backbone infrastructure
within the SilverRock Resort Area caused by Developer's
construction activities.............................................................................34
312.4 Reconnecting the water and sewer lines for the comfort station
located on the Boutique Hotel Parcel......................................................34
312.5 Relocating any above -ground utility if such relocation becomes
necessaryin the future............................................................................34
312.6 Constructing and installing on -site water and sewer laterals
and/or loops.............................................................................................34
312.7 Installing and paying electricity costs for all on -site lighting
needs.......................................................................................................
35
400. DEVELOPMENT AGREEMENT; RESORT RETAIL VILLAGE PARCEL
GROUNDLEASE..........................................................................................................35
401. Tenn....................................................................................................................35
402. Rent Schedule.....................................................................................................35
403. No Assignment....................................................................................................35
404. Permitted Uses....................................................................................................35
882/015610-0084
737414.05 a12/01/06 -11-
Paee
500. USE AND OPERATION OF THE PROPERTY...........................................................35
501.
Use in Accordance with Redevelopment Plan ....................................................37
502.
Maintenance Covenants......................................................................................37
503.
Nondiscrimination Covenants.............................................................................37
504.
Effect of Violation of the Terms and Provisions of this Agreement
After Completion of Construction......................................................................38
505.
Representations and Warranties..........................................................................39
505.1 Agency Representations..........................................................................39
505.2 Developer's Representations..................................................................40
600. DEFAULTS AND REMEDIES.....................................................................................41
601.
Default Remedies................................................................................................41
602.
Institution of Legal Actions................................................................................41
603.
Termination Prior to the Close of the Initial Escrow..........................................41
603.1 Termination by Developer......................................................................42
603.2 Termination by Agency..........................................................................42
604.
Termination Prior to Subsequent Parcel Conveyance........................................42
604.1 Termination by the Developer................................................................42
604.2 Termination by the Agency....................................................................43
605.
Agency Option to Acquire Plans........................................................................43
606.
Option Agreement...............................................................................................43
607.
Right to Reverter and Power of Termination......................................................44
608.
Acceptance of Service of Process.......................................................................44
609.
Rights and Remedies Are Cumulative................................................................44
610.
Inaction Not a Waiver of Default........................................................................44
611.
Applicable Law...................................................................................................44
612.
Non -Liability of Officials and Employees of the Agency..................................44
613.
Attorneys' Fees...................................................................................................45
700. GENERAL PROVISIONS.............................................................................................45
701.
Notices, Demands and Communications Between the Parties ...........................45
702.
Enforced Delay; Extension of Times of Performance........................................46
703.
Transfers of Interest in Property, Agreement, or Management ..........................46
703.1 Transfers of Interest in Property or Agreement Prior to
Agency's Issuance of a Release of Construction Covenants ..................46
703.2 Transfers of Operational Obligations......................................................47
703.3 Assignment and Assumption of Obligations..........................................48
703.4 Successors and Assigns...........................................................................48
703.5 Assignment by Agency...........................................................................49
704.
Relationship Between Agency and Developer...................................................49
705.
Agency Approvals and Actions..........................................................................49
706.
Counterparts........................................................................................................49
707.
Integration...........................................................................................................
49
708.
Real Estate Brokerage Commission....................................................................50
709.
Titles and Captions.............................................................................................
50
710.
Interpretation.......................................................................................................
50
\- 57
882/015610-0084 -111-
737414 05 a12/01/06
Pape
711.
No Waiver...........................................................................................................50
712.
Modifications......................................................................................................50
713.
Severability .........................................................................................................50
714.
Computation of Time..........................................................................................50
715.
Legal Advice.......................................................................................................51
716.
Time of Essence..................................................................................................51
717.
Cooperation.........................................................................................................51
718.
Conflicts of Interest.............................................................................................51
719.
Time for Acceptance of Agreement by Agency .................................................
51
ATTACHMENTS
Attachment No. 1 -
Legal Description of Property
Attachment No. 2 -
Site Map
Attachment No. 3 -
Purchase Price
Attachment No. 4 -
Form of Grant Deed
Attachment No. 5 -
Scope of Development
Attachment No. 6 -
Form of Development Agreement
Attachment No. 7 -
Form of Option Agreement
Attachment No. 8 -
Release of Construction Covenants
Attachment No. 9 -
Schedule of Performance
Attachment No. 10 -
Memorandum of DDA
Attachment No. 11 -
Form of Parcel Map
Attachment No. 12 -
Four Star Quality Requirements
Attachment No. 13 -
List of Public Improvements
Attachment No. 14 -
List of Authorized Managers
Attachment No. 15 -
Rent Schedule for Resort Retail Village Parcel
882/015610-0084 J 1
737414.05 al2/01/06 -iv-
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is
entered into as of , 2006 ("Effective Date"), by and between the LA QUINTA
REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and
LDD SilverRock, LLC, a Delaware limited liability company (the "Developer").
RECITALS
The following recitals are a substantive part of this Agreement:
A. Agency is a public body, corporate and politic, exercising governmental functions
and powers and organized and existing under the Community Redevelopment Law of the State
of California (Health & Safety Code Section 33000, et seq.).
B. Developer is an affiliate of a national real estate development company which,
including its affiliates, specializes in the development and management of luxury hotels, resort
condominiums, and related amenities.
C. Agency owns fee title to that certain real property located at the southwest
intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California 92253 (the
"Property"). The Property is located in La Quinta Redevelopment Project Area No. I (the
"Project Area"), which Project Area is located in the City of La Quinta, California.
D. The Agency and the Developer desire by this Agreement for Developer to
purchase the Property from Agency and to construct, complete, and operate thereon a
commercial project containing a luxury four -star quality or higher boutique hotel and a four -star
quality or higher luxury resort hotel, a retail village, condominium hotel units, resort units, and
associated amenities, all as further described herein.
E. The Agency's disposition of the Property to the Developer, and the Developer's
subsequent construction, completion and operation of the "Project" (as that term is defined in
Section 100 below) thereon, pursuant to the terms of this Agreement, are in the vital and best
interest of the City of La Quinta 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, the Agency and Developer hereby agree as follows:
100. DEFINITIONS
"Agency" means the La Quinta Redevelopment Agency, a public body, corporate and
politic, exercising governmental functions and powers and organized and existing under Chapter
2 of the Community Redevelopment Law of the State of California, Health and Safety Code,
Section 33000, et seq., and any assignee of or successor to its rights, powers and responsibilities.
"Agency's Conditions Precedent to Closing" means the conditions precedent to a
Closing to the benefit of Agency, as set forth in Section 205.1 hereof.
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"Agreement" means this Disposition and Development Agreement between the Agency
and the Developer.
"Authorized Manager" is defined in Section 502.
"Best Knowledge" or "Actual Knowledge" means, for purposes of a representation or
warranty given hereunder, that such party has conducted a reasonable review of its files and has
made reasonable inquiry of its employees and agents responsible for the acquisition,
development and disposition of the Boutique Hotel Parcel, the Resort Hotel Parcel, the Lake
Casitas Parcel, the Resort Retail Village Parcel, or the Golf Casitas Parcel.
"Black Box" means a multi -purpose theater, cinema, or conference hall building,
containing approximately 7,000-7,500 square feet, with theater capacity for approximately 250-
300 persons, and required parking, as further described in the Specific Plan, Scope of
Development, and Development Agreement.
"Black Box Parcer' means that certain real property designated as Lot 4 on the Parcel
Map. The Black Box Parcel is comprised of approximately .78 acres.
"Boutique Hotel" means the component of the Project that consists of Developer's
construction and subsequent operation of an intimate, Four -Star Quality hotel containing no
more than two hundred twenty-five (225) Units, a sit-down restaurant that up to 80 persons
concurrently inside and up to 40 persons concurrently outside, a first-class spa and fitness
facility, a pool, at least ten thousand square feet (10,000 sf) of interior meeting space, a parking
structure containing at least one hundred fifty (150) parking spaces, and other related amenities,
all as further described in the Scope of Development and Specific Plan. Developer shall develop
the Boutique Hotel on the Boutique Hotel Parcel.
"Boutique Hotel Parcel" means that certain real property designated as Lot 19 on the
Parcel Map. The Boutique Hotel Parcel is comprised of approximately 13.79 acres. The
Boutique Hotel Parcel may be subdivided into two or more legal parcels after the Effective Date.
In such event, when used herein, the terms "Boutique Hotel Parcel" shall refer to all such legal
parcels. The City has installed a pipeline across portions of the Boutique Hotel Parcel. The
Parcel Map depicts the location of the easement required for the City to access, maintain, and
repair such pipeline. Developer hereby acknowledges that Agency's conveyance of the Boutique
Hotel shall be subject to the foregoing easement.
"Casita Unit" means a Unit that is not located in a main hotel building.
"City" means the City of La Quinta, a California municipal corporation.
"City Declaration of CC&Rs" means a Declaration of Covenants, Conditions and
Restrictions substantially in the form attached to the Development Agreement as Exhibit "E".
"Closing" means the close of escrow for the conveyance from the Agency to the
Developer of one or more Parcels as set forth in Section 202.5 hereof.
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"Closing Date" means the date Escrow closes for the conveyance from the Agency to the
Developer of one or more Parcels as set forth in Section 202.5 hereof.
"Completion of Construction Date" is defined in Section 304 hereof.
"Condition of Property Title" is defined in Section 203 hereof.
"Condominium Hotel Unit" means a Unit which is sold to a third party owner, but
which, when not in use by such owner, is part of the inventory of rooms available for transient
occupancy within the Project.
"Contractor Bonds" means payment and performance bonds ensuring the completion of
a subcontractor's work in a Phase of Development.
"Default" means the failure of a party to perform any action or covenant required by this
Agreement within the time periods provided herein following notice and opportunity to cure, as
set forth in Section 601 hereof.
"Deposit Payment" or "Deposit Payments"' is defined in Section 208 hereof.
"Design/Construction Development Drawings" means those plans and drawings to be
submitted to the City with respect to the development of each Phase of Development, as set forth
in Section 302 hereof.
"Developer" means LDD SilverRock, LLC, a Delaware limited liability company, and its
successors and assigns.
"Developer CC&Rs" is defined in Section 310 hereof.
"Developer Representatives" means, collectively, Developer's managers, directors,
engineers, analysts, officials, employees, agents, contractors, representatives, attorneys, advisers,
and consultants, including an Environmental Consultant.
"Developer's Conditions Precedent to Closing" means the conditions precedent to a
Closing to the benefit of Developer, as set forth in Section 205.2.
"Development Agreement" means the Development Agreement, substantially in the form
attached hereto and incorporated herein as Attachment No. 6, which Developer and City are
required to execute as a condition to the effectiveness of this Agreement.
"DHR" means Destination Hotels & Resorts, Inc., a California corporation.
"Effective Date" means the date inserted into the Preamble hereof, which is the date both
parties have executed this Agreement.
"Environmental Consultant" means a consultant engaged by Developer, at Developer's
sole cost and expense, which conducts the environmental investigations of the Property pursuant
to Section 207.2 hereof.
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"Escrow" is defined in Section 201 hereof.
"Escrow Agent" is defined in Section 202 hereof.
"Evidence of Financial Capability" means evidence reasonably satisfactory to Agency's
Executive Director that Developer has the financial resources necessary for the acquisition of
each Parcel and the subsequent development of each respective Phase of Development, as further
described in Section 311.
"Fee Transfer Release Date" is defined in Section 703.1.
"FIRPTA" means the Foreign Investment in Real Property Transfer Act.
"Four Star Quality" means that the applicable Phase of Development provides all of the
services, amenities and facilities listed on Attachment No. 12, which is attached hereto and
incorporated herein by this reference.
"Fractional Unit" means a Unit that is either (a) a condominium, the ownership of which
is divided into multiple fractional interests, including, without limitation, timeshare interests,
each of which can either be owned by a separate owner or by single owner, and each of which
gives such owner the right to use such Unit for a different period of time; or (b) a Unit that is
owned in fee by the Developer, Developer's successor in interest, DHR, or a successor in
interest that is authorized or permitted pursuant to Section 703.2 hereof, and in which
memberships are sold to third parties giving such parties the right to use and occupy the Unit for
certain periods of time.
"Golf Casitas Development" means the component of the Project that consists of
Developer's construction and subsequent operation of approximately seventy-two (72) Casita
Units. Developer shall develop the Golf Casitas Development on the Golf Casitas Parcel, in
conformance with the Scope of Development and Specific Plan.
"Golf Casitas Parcel" means that certain real property designated as Lot 11 on the Parcel
Map. The Golf Casitas Parcel is comprised of approximately 8.63 acres.
"Good Funds" means a confirmed wire transfer of immediately available funds,
cashier's or certified check drawn on or issued by the office of a financial institution located in
Riverside County, or cash.
"Governmental Requirements" means all laws, ordinances, statutes, codes, rules,
regulations, orders and decrees of the United States, the State of California, the County of
Riverside, the City, or any other political subdivision in which the Property, or any portion
thereof, is located, and of any other political subdivision, agency or instrumentality exercising
jurisdiction over the Developer, and/or the Property, or any portion thereof.
"Grant Deed" means a grant deed, substantially in the form attached hereto and
incorporated herein by this reference as Attachment No. 4, pursuant to which Agency shall
convey to Developer title to one or more Parcels.
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"Hazardous Materials" means any substance, material, or waste which is, or becomes,
regulated by any local or regional governmental authority, the State of California, or the United
States Government, including, but not limited to, any material or substance which is (i) defined
as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under
Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health
and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
"hazardous substance" under Section 25316 of the California Health and Safety Code, Division
20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined as a
"hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of
the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls,
(viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to Section 311 of the
Clean Water Act (33 U.S.C. §1317), (xi) defined as a "hazardous waste" pursuant to Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C.
§6903) or (xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq.
"Hotel Unit" means the Units in the Project that will be owned in fee by Developer or
any successor authorized pursuant to Section 703 hereof and managed by DHR or any successor
hotel management entity authorized or approved by the Agency pursuant to Section 703 hereof.
None of the Hotel Units may be sold as Condominium Hotel Units or as Fractional Units.
"Initial Escrow" is defined in Section 201.2.
"Initial Purchase Price" means the fair market value of each Parcel as of the Effective
Date. The Initial Purchase Price for each Parcel is set forth in Attachment No. 3.
"Lake Casitas Development" means the component of the Project that consists of
Developer's construction and subsequent operation of approximately fifty (50) Casita Units.
Developer shall develop the Lake Casitas Development on the Lake Casitas Parcel in
conformance with the Scope of Development and Specific Plan.
"Lake Casitas Parcel" means that certain real property designated as Lot 23 on the
Parcel Map. The Lake Casitas Parcel is comprised of approximately 3.82 acres.
"Land Use Approvals" is defined in Section 302.5.
"Lock -Off Feature" means a feature that enables one of the bedroomsibathrooms in a
Unit to be closed off from the remainder of the Unit and rented as a separate Unit.
"Lowe Enterprises" means Lowe Enterprises, Inc., a California corporation, which is an
affiliate of Developer.
"Management Transfer" is defined in Section 703.2.
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"Management Transfer Release Date" is defined in Section 703.2.
"Memorandum of DDA" means the Memorandum of Disposition and Development
Agreement substantially in the form attached hereto and incorporated herein as Attachment
No. 10.
"Notice" means a notice in the form prescribed by Section 701 hereof.
"Option Agreement" means the Option Agreement substantially in the form attached
hereto and incorporated herein as Attachment No. 7. The Option Agreement shall be recorded
against each Parcel at the Close of Escrow that includes such Parcel.
"Outside Date for Closing" means the last date Escrow may close for the conveyance
from Agency to Developer of each Parcel. The Outside Date for Closing is referenced in Section
202.5 hereof and the Outside Date for Closing for each Parcel is set forth in the applicable
Schedule of Performance for each Parcel.
"Parcel" means any of the following: Black Box Parcel, Boutique Hotel Parcel, Golf
Casitas Parcel, Lake Casitas Parcel, Ranch Villas Parcel, Resort Hotel Parcel, or Resort Retail
Village Parcel. The term "Parcels" means all of the Parcels described in the immediately
preceding sentence.
"Parcel Map" means Parcel Map No. 33367, which has been prepared by the Agency.
The Parcel Map shall be recorded prior to or concurrently with the first Closing hereunder.
A copy of the Parcel Map is attached hereto and incorporated herein as Attachment No. 11.
"Performance Default Amount" is defined in Section 502.
"Phase of Development" means any of the following components of the Project: Black
Box, Boutique Hotel, Golf Casitas Development, Lake Casitas Development, Ranch Villas
Development, Resort Hotel, or Resort Retail Village Development.
"Phase of Development Owner" is defined in Section 502.
"Phase One of Boutique Hotel" is defined in Section 201.2.
"Phase One of Resort Hotel" is defined in Section 201.4.
"Preliminary Title Report" means the preliminary title report issued by the Title
Company that covers the Property, as described in Section 203.
"Project" means the commercial development to be constructed on the Property that
consists of the Black Box, Boutique Hotel, the Golf Casitas Development, the Lake Casitas
Development, the Resort Hotel, and the Resort Retail Village Development.
"Project Area" means the La Quinta Redevelopment Project Area No. 1, adopted by the
City pursuant to the Redevelopment Plan.
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"Property" means that approximately 58.97 acres of real property located at the
southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California
92253. The Property is legally described in the Property Legal Description and depicted in the
Site Map.
"Property Environmental Reports" means the collective environmental investigations of
the Property conducted pursuant to Section 207.2 hereof.
"Property Exceptions" is defined in Section 203.
"Property Legal Description" means the description of the Property which is attached
hereto as Attachment No. 1 and incorporated herein by this reference.
"Purchase Price" means the price to be paid by Developer to the Agency in
consideration of the Agency's conveyance to Developer of fee title to a Parcel. The Purchase
Price is referenced in Section 202.2 hereof. The Purchase Price for each Parcel shall be
determined as set forth in Attachment No. 3 hereto.
"Ranch Villas Development" means the component of the Project that consists of
Developer's construction and operation of approximately fifty (50) Casita Units. Developer
shall develop the Ranch Villas Development on the Ranch Villas Parcel in compliance with the
Scope of Development and Specific Plan.
"Ranch Villas Parcel" means that certain real property designated as Lot 22 on the
Parcel Map. The Ranch Villas Parcel is comprised of approximately 2.43 acres.
"Redevelopment Plan" means the Redevelopment Plan for the Project Area, adopted on
November 29, 1983, by Ordinance No. 43, of the City Council of the City of La Quinta, which
Redevelopment Plan is incorporated herein by reference.
"Release of Construction Covenants" means the document which evidences the
Developer's satisfactory completion of a Phase of Development, as set forth in Section 310
hereof, substantially in the form of Attachment No. 8 hereto which is incorporated herein by this
reference.
"Resort Hotel" means the component of the Project that consists of Developer's
construction and operation of a Four Star Quality or higher luxury hotel containing
approximately Two hundred eighty-three (283) Units, with associated amenities, including, but
not limited to, a sit-down restaurant that serves up to 100 persons concurrently inside and up to
60 persons concurrently outside, a first-class spa and fitness center, a parking structure
containing not fewer than one hundred fifty (150) parking spaces, pools, and at least twenty
thousand square feet (20,000 sf) of interior meeting space, all as further described in the Scope of
Development and Specific Plan. At least ninety (90) of the Units in the Resort Hotel shall be
Hotel Units. Developer shall develop the Resort Hotel on the Resort Hotel Parcel.
"Resort Hotel Parcel" means that certain real property designated as Lot 3 on the Parcel
Map. The Resort Hotel Parcel is comprised of approximately 19.65 acres.
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"Resort Retail Village Development" means the component of the Project that consists
of Developer's construction and subsequent operation of approximately eighty-one thousand
square feet (81,000 sf) of space, with approximately forty thousand square feet (40,000 sf) of
such space developed for and dedicated to retail uses, fifteen thousand square feet (15,000 sf) of
such space developed for and designated to restaurant use, and twelve thousand square feet
(12,000 sf) of such space to be developed for and dedicated to residential uses, all as further
described in the Scope of Development and Specific Plan. Developer shall develop the Resort
Retail Village Development on the Resort Retail Village Parcel.
"Resort Retail Village Parcel" means that certain real property designated as Lot 5 on
the Parcel Map. The Resort Retail Village Parcel is comprised of approximately 11.88 acres.
"Resort Retail Village Parcel Ground Lease" means the form of ground lease pursuant
to which (i) the Agency contemplates leasing to Developer the Resort Retail Village Parcel and
then the Agency conveys its fee interests in such Parcel to the City, which would become the
lessor; or (ii) the Agency contemplates leasing to Developer the Resort Retail Village Parcel if
the Agency elects not to convey its interests in such Parcel to the City but instead elects to enter
into the Resort Retail Village Parcel Ground Lease with Developer and to subsequently assign its
interests in said ground lease to the City. As further provided herein, nothing herein shall be
deemed a predetermination by Agency with respect to the Resort Retail Village Parcel, and
Agency retains complete and unfettered discretion to elect either of the options set forth in
clauses (i) and (ii) above or, alternatively, to sell such Parcel to Developer. The form of the
Resort Retail Village Parcel Lease shall be acceptable to the Agency in the Agency's sole and
absolute discretion.
"Schedule of Performance" means the Schedule of Performance attached hereto and
incorporated herein as Attachment No. 9, setting out the dates and/or time periods by which
certain obligations set forth in this Agreement must be accomplished.
"Scope of Development" means the Scope of Development attached hereto and
incorporated herein as Attachment No. 51 which describes the scope, amount and quality of
development of the Project to be constructed by the Developer pursuant to the terms and
conditions of this Agreement.
"SilverRock Resort Area" means the real property included in and covered by the
Specific Plan.
"Site Map" means the map of the Property, which is attached hereto as Attachment No. 2
and incorporated herein by this reference.
"Specific Plan" means the SilverRock Resort Specific Plan, which was approved by the
City Council of the City on July 18, 2006. Developer's development and operation of the Project
shall be in strict conformance with the Specific Plan. In the event this Agreement is inconsistent
with the Specific Plan, the terms of the Specific Plan shall prevail.
46Title Company" is defined in Section 203 hereof.
"Title Policy" is defined in Section 204 hereof.
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"Transfer" is defined in Section 703.1 hereof.
"Unit" means one of the approximately six hundred eighty (680) guest units comprising
the Project. All Units shall be developed as Condominium Hotel Units, Fractional Units, and/or
Hotel Units, and all such development shall be in accordance with the requirements of the
Specific Plan.
"Updated Report" means an update to the Preliminary Title Report, as described in
Section 203 hereof.
200. CONVEYANCE OF THE PROPERTY
201. Disposition of the Property. Developer agrees to purchase the Property from the
Agency, and the Agency agrees to sell to the Developer the Property, in accordance with and
subject to all of the terms, covenants, and conditions of this Agreement. The purchase price for
each of the individual Parcels is set forth in Attachment No. 3 hereof (each, a "Purchase Price").
Each such Purchase Price represents the fair market value of the Parcel.
Developer shall be entitled to purchase the Parcels, and commence construction
thereon of the applicable Phase of Development, in the order set forth in this Section 201;
provided, however, that nothing herein is intended to permit Developer to elect not to purchase
any or all of the Parcels. Notwithstanding anything herein to the contrary, each conveyance by
Agency to Developer of one or more Parcels shall be effected through an escrow ("Escrow") in
accordance with the provisions of Section 202 hereto. With the exception of the "Initial Escrow"
(as that term is described in paragraph (a) below), which shall be opened within the time set forth
in the Schedule of Performance, each such Escrow shall be opened within the time reasonably
required to affect each applicable conveyance, as set forth in the Schedule of Performance.
201.1 The Initial Escrow. Within the time set forth in the Schedule of
Performance, Developer and Agency shall open an escrow for Agency's conveyance to
Developer of the Boutique Hotel Parcel and the Ranch Villas Parcel (the "Initial Escrow").
Notwithstanding the use of the term "Initial Escrow" in this Section 201.1, all of the general
requirements for each Escrow, as set forth in Section 202, shall apply to the Initial Escrow, and
each reference to an "Escrow" in this Agreement shall be deemed to include the Initial Escrow.
201.2 The Second Escrow. Upon Developer's (i) completion and opening of,
and receipt of a temporary or permanent certificate of occupancy for, the core operating facilities
of the Boutique Hotel, including, without limitation, the lobby, guest check -in area and facilities,
administration, restaurant, and pool; and (ii) completion of (including furnishings), and receipt of
a temporary or permanent certificate of occupancy for, fifty percent (50%) of the Units to be
developed in the Boutique Hotel and fifty percent (50%) of the Units to be developed in the
Ranch Villas Development, with all of such completed Units operational and made available for
rental, all as determined by City's Community Development Director and Director of Building
and Safety, Developer shall have the right to purchase the Resort Hotel Parcel, the Black Box
Parcel, and the Resort Retail Village Parcel. The obligations set forth in clauses (i), (ii), and (iii)
above shall be collectively referred to as "Phase One of Boutique Hotel."
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Notwithstanding anything to the contrary in this Agreement, (x) Agency's Board
of Directors may, in its sole and absolute discretion, elect to (a) convey the Resort Retail Village
Parcel to the City for the City's subsequent lease of such Parcel to Developer, or (b) lease such
Parcel to Developer and subsequently assign its leasehold interests to the City; and (y) Developer
shall acquire fee title to or a leasehold interest in (as applicable) the Resort Retail Village Parcel
within one (1) year after Developer's acquisition of the Resort Hotel Parcel.. In the event
Agency elects to lease the Resort Retail Village Parcel to Developer or to convey such Parcel to
the City, such lease or conveyance shall occur at the same time designated in this Section 201.2
for the Agency's conveyance of the Resort Retail Village Parcel to Developer. The terms of the
Resort Retail Village Parcel Ground Lease shall govern the leasehold transaction between the
City and Developer or between the Agency and Developer (as applicable).
201.3 The Third Escrow. Upon Developer's (i) acquisition of the Boutique
Hotel Parcel, the Ranch Villas Parcel, the Resort Hotel Parcel, and the Resort Retail Village
Parcel; (ii) satisfaction of all of the requirements of the Initial Escrow, as set forth in Section
201.1 above; (iii) completion of Phase One of Boutique Hotel, as set forth in Section 201.2
above; and (iv) completion of the second floor deck structure at the Resort Hotel, all as
determined by City's Community Development Director and Director of Building and Safety,
Developer shall have the right to purchase the Lake Casitas Parcel. Notwithstanding anything to
the contrary in this Agreement, no certificate of occupancy shall be issued for any Unit in the
Lake Casitas Development until the certificate of occupancy for the core operating facilities of
the Resort Hotel, including, without limitation, the lobby, guest check -in area and facilities
administration, restaurant, and pool has been issued.
201.4 The Fourth Escrow. Upon Developer's (i) acquisition of the Lake Casitas
Parcel; (ii) satisfaction of the requirements for the Initial Escrow, as set forth in Section 201.1
and Section 201.3 above; (iii) completion of Phase One of Boutique Hotel, as set forth in Section
201.2 above; (iv) completion and opening of, and receipt of a temporary or permanent certificate
of occupancy for, the core operating facilities of the Resort Hotel, including, without limitation,
the lobby, guest check -in area and facilities, administration, restaurant, and pool; and (v)
completion of, and receipt of a temporary or permanent certificate of occupancy for, fifty percent
(50%) of the Units to be developed in the Resort Hotel and fifty percent (50%) of the Units to be
developed in the Lake Casitas Development with all of such completed Units operational and
made available for rental, Developer shall have the right to purchase the Golf Casitas Parcel.
The obligations set forth in clauses (iv) and (vi) above shall be collectively referred to as "Phase
One of Resort Hotel."
Notwithstanding any of the foregoing, (a) Agency's Executive Director shall have
the authority, in its sole and absolute discretion, to permit Developer to purchase any or all of the
Resort Hotel Parcel, Lake Casitas Parcel, and the Golf Casitas Parcel at any time if Agency's
Executive Director determines that Developer has the necessary financial resources to develop
such Phase(s) of Development earlier than scheduled, and that permitting such early acquisition
is in the best interests of the Agency and the Project; and (b) in the event Developer has not
acquired the Ranch Villas Parcel solely as a result of a failure to satisfy the requirement set forth
in Section 205.1(o), all of the requirements in this Section 201 pertaining to the acquisition and
development of the Ranch Villas Parcel shall be waived until such time as the requirement set
forth in Section 205.1(o) has been satisfied, or waived by the Agency.
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202. Escrow. The parties shall open each Escrow with First American Title Company,
at its office located at 3625 Fourteenth Street, Riverside, California 92502-0986, or another
escrow company mutually satisfactory to both parties (the "Escrow Agent").
202.1 Costs of Escrow. (i) Agency shall pay the premium attributable to the
CLTA standard form policy of title insurance for the Property or the applicable Parcel(s), as set
forth in Section 204 hereof, (ii) Developer shall pay for any extended policy, coverages, or
endorsements requested by Developer, as set forth in Section 204 hereof, (iii) Developer shall
pay for the documentary transfer taxes, if any, due with respect to the conveyance of the Property
or said Parcel(s), as applicable, (iv) Developer shall pay all recording fees, and (v) Developer
and Agency each agree to pay one-half of all other usual fees, charges, and costs which arise
from the Escrow.
202.2 Payment of Purchase Price. On or before 5:00 p.m. on the business day
preceding the applicable Closing Date (or such earlier time as required by Escrow) for a Parcel,
Developer shall deposit with Escrow Agent the applicable Purchase Price in Good Funds, and
such additional funds as may be required to meet Developer's portion of the closing costs as
hereinafter provided; provided, however, that if Agency elects to lease the Resort Retail Village
Parcel to Developer or to City rather than selling such Parcel to Developer, Developer shall not
be required to pay to Agency the Purchase Price for the Resort Retail Village Parcel. In that
event, Developer's financial obligations with respect to acquiring a leasehold interest in and to
such Parcel shall be to pay to City or Agency (as applicable) any and all sums required under the
Resort Retail Village Parcel Ground Lease. Notwithstanding that the "Closing" for the Resort
Retail Village Parcel may not result in a fee conveyance to Developer, such "Closing" shall not
occur until all of Agency's Conditions Precedent to the Closing and Developer's Conditions
Precedent to the Closing as set forth in Section 205 have been satisfied or waived by the
respective parties.
202.3 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Agency for each Escrow described herein, and the Escrow Agent
to whom instructions are delivered is hereby empowered to act under this Agreement. Insurance
policies for fire or casualty are not to be transferred, and Agency will cancel its own policies
after the applicable Closing. All funds received in the Escrow shall be deposited with other
escrow funds in a general escrow account(s) and may be transferred to any other such escrow
trust account in any State or National Bank doing business in the State of California. All
disbursements shall be made by check from such account.
If in the opinion of either party and/or the construction lender it is necessary or
convenient in order to accomplish the Closing of the Property, or of any of the Parcels, such
party may require that the parties sign supplemental escrow instructions; provided that if there is
any inconsistency between this Agreement and the supplemental escrow instructions, then the
provisions of this Agreement shall control. The parties agree to execute such other and further
documents as may be reasonably necessary, helpful or appropriate to effectuate the provisions of
this Agreement. Each Closing hereunder shall take place within thirty (30) days after the date
when both the Agency's Conditions Precedent to the Closing and the Developer's Conditions
Precedent to the Closing as set forth in Section 205 have been satisfied or waived by the
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respective parties. Escrow Agent is instructed to release Agency's escrow closing and
Developer's escrow closing statements to the respective parties.
202.4 Authority of Escrow Agent. At each Closing, Escrow Agent is authorized
to, and shall:
(a) Pay and charge Developer and Agency for their respective shares
of the premium of the applicable Title Policy and any endorsements thereto as set forth in
Section 204 and any amount necessary to place title in the condition necessary to satisfy Section
203 of this Agreement.
(b) Pay and charge Developer and Agency for their respective shares
of any escrow fees, charges, and costs payable under Section 202.1 of this Agreement.
(c) Disburse funds, deliver one or more executed Option Agreement(s)
to the Agency, and deliver and record the applicable Grant Deed(s) and the applicable Option
Agreement(s) when both the Developer's Conditions Precedent to the Closing and the Agency's
Conditions Precedent to the Closing have been fulfilled or waived by Developer and Agency.
(d) At the Closing for the Initial Escrow only, deliver the executed
Development Agreement and Memorandum to the Agency, and deliver and record the
Development Agreement and Memorandum when both the Developer's Conditions Precedent to
the Closing and the Agency's Conditions Precedent to the Closing have been fulfilled or waived
by Developer and Agency.
(e) Do such other actions as necessary, including obtaining the
applicable Title Policy, to fulfill its obligations under this Agreement.
(f) Within the discretion of Escrow Agent, direct Agency and
Developer to execute and deliver any instrument, affidavit and statement, and to perform any act
reasonably necessary to comply with the provisions of the Foreign Investment in Real Property
Transactions Act ("FIRPTA") and any similar state act and regulation promulgated thereunder.
Agency agrees to execute a Certificate of Non -Foreign Status by individual transferor and/or a
Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform
Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent.
(g) Prepare and file with all appropriate governmental or taxing
authorities a uniform settlement statement, closing statement, tax withholding forms including an
IRS 1099-5 form, and be responsible for withholding taxes, if any such forms are provided for or
required by law.
202.5 Closin . Each transaction shall close ("Closing") within thirty (30) days
after the parties' satisfaction of all of Agency's Conditions Precedent to the Closing and all of
the Developer's Conditions Precedent to the Closing as set forth in Section 205 hereof, but in no
event later than the applicable Outside Date for Closing, which is set forth in the Schedule of
Performance for the applicable Phase of Development. The Outside Date for Closing for each
Parcel, may be extended for up to six (6) months, by mutual agreement of the Executive Director
of the Agency and Developer. Subject to the provisions in this Section 202.5, Closing shall
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occur at a time reasonably agreed on by the parties. A "Closing" shall mean the time and day the
applicable Grant Deed(s) is recorded with the Riverside County Recorder. A "Closing Date"
shall mean the day on which the applicable Closing occurs.
202.6 Termination. If an Escrow is not in condition to close by the applicable
Outside Date for Closing, then either party which has fully performed under this Agreement
may, in writing, demand the return of money or property and terminate such Escrow. If either
party makes a written demand for return of documents or properties, the Escrow shall not
terminate until ten (10) business days after Escrow Agent shall have delivered copies of such
demand to all other parties at the respective addresses shown in this Agreement. If any
objections are raised within said ten (10) business day period, Escrow Agent is authorized to
hold all papers and documents until instructed by a court of competent jurisdiction or by mutual
written instructions of the parties. Developer, however, shall have the sole option to withdraw
any money deposited by it with respect to the Closing less Developer's share of costs of the
Escrow and cancellation fees. Termination of said Escrow shall be without prejudice as to
whatever legal rights either party may have against the other arising from this Agreement. If no
demands are made, the Escrow Agent shall proceed with the applicable Closing as soon as
possible.
202.7 Closing Procedure. Escrow Agent shall close each Escrow as follows:
(a) (i) Record, in the following order, the applicable Grant Deed(s),
the applicable Option Agreement(s), the applicable City Declaration of CC&Rs, at the Initial
Escrow only, the Memorandum of DDA, the applicable Maintenance Agreement, the applicable
Water Agreement, and deeds of trust and other security instruments securing Developer's
acquisition and construction financing, and (ii) deliver copies of each of the documents listed in
clauses (i) above, showing recording information to Agency and Developer;
(b) Deliver the Option Agreement(s) City Declaration of CC&Rs,
Maintenance Agreement, Water Agreement, and, at the Initial Escrow only, the Memorandum of
DDA, to the Agency and a copy to Developer;
(c) Deliver the applicable Title Policy and Grant Deed(s) to
Developer,
(d) File any informational reports required by Internal Revenue Code
Section 6045(e), as amended and any other applicable requirements; and
(e) Deliver the FIRPTA Certificate, if any, to Developer; and
(f) Forward to both Developer and Agency a separate accounting of
all funds received and disbursed for each party and copies of all executed and recorded or filed
documents deposited into the Escrow, with such recording and filing date and information
endorsed thereon.
203. Review of Title of Property. The Agency shall cause First American Title
Insurance Company, or another title company mutually agreeable to both parties (the "Title
Company"), to deliver to Developer a standard preliminary title report dated no earlier than the
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Effective Date (the "Preliminary Title Report") with respect to the title to the Property, together
with legible copies of the documents underlying the exceptions ("Property Exceptions") set forth
in the Preliminary Title Report, within thirty (30) days after the Effective Date. The Developer
shall have the right to approve or disapprove the Property Exceptions and any proposed
encumbrances to the Property in the exercise of its sole discretion; provided, however, that the
Developer hereby approves the following Property Exceptions:
(a) The Redevelopment Plan.
(b) The lien of any non -delinquent property taxes and assessments (to
be prorated at close of each respective Escrow.
(c) All documents to be recorded at the close of the applicable Escrow.
Developer shall have thirty (30) days after the later of (i) the date of its receipt of the Preliminary
Title Report, or (ii) the date Developer receives the documents underlying the Property
Exceptions to give written notice to Agency and Escrow Holder of Developer's approval or
disapproval of any of such Property Exceptions. Developer's failure to give written approval of
the Preliminary Title Report within such time limit shall be deemed disapproval of the
Preliminary Title Report. If Developer notifies Agency of its disapproval of any Property
Exceptions in the Preliminary Title Report or is deemed to have disapproved the Preliminary
Title Report, Agency shall have the right, but not the obligation, to remove any disapproved
Property Exceptions within thirty (30) days after (a) receiving written notice of Developer's
disapproval or (b) the date Developer is deemed to have disapproved the Preliminary Title
Report, or provide assurances satisfactory to Developer that such Property Exception(s) will be
removed on or before the applicable Closing. If Agency cannot or does not agree to remove any
of the disapproved Property Exceptions before the applicable Closing, Developer shall have
fifteen (15) days after the expiration of such thirty (30) day period to either give the Agency
written notice that Developer elects to proceed with the purchase of the Property subject to the
disapproved Property Exceptions or to give the Agency written notice that the Developer elects
to terminate this Agreement. Developer's failure to give written notice of its election within such
fifteen (15) day period shall be deemed to be an election not to proceed with the purchase of the
Property. Anything herein to the contrary notwithstanding, Agency shall remove from title all
monetary encumbrances other than the lien referred to in (b) above in this Section 203. The
condition of title, including all of the Property Exceptions to title approved by Developer as
provided herein shall hereinafter be referred to as the "Condition of Property Title". From and
after the Effective Date hereof, and continuing until the earlier of (i) the Close of Escrow for the
last portion of the Property Developer intends to acquire from Agency, or (ii) termination of this
Agreement, Agency shall not further encumber the Property with additional Property Exceptions
without the Developer's prior written consent; provided, however, that Agency's election to
convey the Resort Retail Village Parcel to the City shall not be construed as a Property
Exception and shall be expressly permitted hereunder. Developer shall have the right to approve
or disapprove any further Property Exceptions (which are not created by Developer) reported by
the Title Company after Developer has approved the Condition of Property Title. Developer and
the Executive Director of the Agency, on behalf of the Agency, shall have the authority to extend
the foregoing fifteen (15) day period by written agreement for an additional fifteen (15) days.
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204. Title Insurance. Concurrently with recordation of the applicable Grant Deed(s)
conveying title to one or more of the Parcels, there shall be issued to Developer an ALTA
owner's policy of title insurance (the "Title Policy"), together with such endorsements as are
reasonably requested by the Developer, issued by the Title Company insuring that the title to the
applicable Parcel is vested in Developer in the Condition of Property Title approved by
Developer pursuant to Section 203 of this Agreement (except that such Title Policy shall only
reflect the'applicable Parcel and the Property Exceptions applicable thereto). Agency shall pay
the title insurance premium attributable to the ALTA owner's form policy of title insurance up to
the Purchase Price for the applicable Parcel. The Title Company shall, if requested by
Developer, increase the amount of the title insurance policy or provide the Developer with an
extended policy, coverages, or endorsements. Developer shall pay the portion of the premium
associated with such extended or additional coverages or endorsements, and the costs of
preparation of a current survey of the Property, if requested by Developer. The Title Company
shall provide the Agency with a copy of the Title Policy.
205. Conditions of Closing. Each Closing is conditioned upon the satisfaction of the
following terns and conditions within the times designated below:
205.1 Agency's Conditions of Closing. Agency's obligation to proceed with
each Closing is subject to the fulfillment or waiver by Agency of each and all of the conditions
precedent (a) through (w), inclusive, described below ("Agency's Conditions Precedent to the
Closing"), which are solely for the benefit of Agency, and which shall be fulfilled or waived by
the time periods provided for herein:
(a) No Default. Prior to the close of each Escrow, neither Developer
nor any entity that has assumed the Developer's or DHR's obligations hereunder with respect to
the development and/or operation of one or more Phases of Development shall be in default of
any of its obligations under the terms of this Agreement with respect to said Escrow and all
representations and warranties of Developer contained herein shall be true and correct in all
material respects.
(b) Execution of Documents. Developer shall have executed and
delivered into the Escrow the applicable Grant Deed(s), the applicable Option Agreement(s), the
applicable City Declaration of CC&Rs, the applicable Maintenance Agreement, the applicable
Water Agreement, and any other documents required hereunder, and, at the Initial Escrow only,
the Memorandum of DDA. The Development Agreement shall have been fully executed and
recorded in the Official Records of Riverside County.
(c) Payment of Funds. Prior to each Closing, Developer shall have
paid all of its required costs of the Closing into the applicable Escrow in accordance with Section
202 hereof.
(d) Design Approvals. Developer shall have obtained approval by the
City of the Design/Construction Development Drawings for the Phase of Development
applicable to each Parcel to be acquired at the Closing, as set forth in Section 302 hereof.
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(e) Phasing Requirements. All of the conditions and requirements
described in Section 201.2, 201.3, and 201.4 that are applicable to the Escrow have been
satisfied.
(fj City Declaration of CC&Rs. Prior to each Closing that includes a
Parcel that will be developed with Condominium Hotel Units and/or Fractional Units, Developer
shall have entered into with the City and recorded against the underlying Parcel a City
Declaration of CC&Rs, the covenants of which shall bind the Parcel and each and every
Condominium Hotel Unit, Fractional Unit, and Hotel Unit developed thereon in perpetuity and
shall survive the termination of this Agreement and of the Development Agreement.
(g) Land Use Approvals. Developer shall have received all Land Use
Approvals required for the Phase of Development applicable to each Parcel to be acquired at the
Closing, pursuant to Section 302.5 hereof.
(h) Insurance. Developer shall have provided proof of insurance as
required by Section 304 hereof and Agency shall have approved of the same.
(i) Financing. The Agency shall have approved Developer's
financing for the Phase of Development applicable to each Parcel to be acquired at the Closing,
pursuant to Section 309.1 hereof, and such financing shall close concurrently with the Closing
and be available to the Developer upon the Closing.
0) Environmental. The Developer shall have approved the
environmental condition of the Property and shall not have elected to terminate this Agreement
with respect to the Property pursuant to Section 207.2 hereof.
(k) Grading Plans and Permits. Developer shall have obtained City
approval of its precise grading plans for the Phase of Development applicable to each Parcel to
be acquired at the Closing, and grading permits shall be ready to be issued (on payment of
necessary fees, posting of required security, and similar items).
(1) Building Plans and Permits. Developer shall have obtained City
approval of its building plans for the Phase of Development applicable to each Parcel to be
acquired at the Closing, and building permits shall be ready to be issued (on payment of
necessary fees, posting of required security, and similar items).
(m) Construction Costs and Contract. The Developer shall have
provided the Agency's housing and economic development consultant, or such other person as
the Executive Director may designate, a copy of the proposed contract, certified by the
Developer to be a true and correct copy thereof, between the Developer and one or more duly
licensed general contractors reasonably acceptable to the Agency for the construction of the
Phase of Development applicable to each Parcel to be acquired at the Closing. Such proposed
contract shall provide for the complete development of the Phase of Development. No material
changes shall have been made to such proposed contract without the prior approval of the
Agency's housing and economic development consultant or the Executive Manager's designee.
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(n) Performance Bond. The Developer shall have obtained from each
subcontractor whose work on a Phase of Development (in the aggregate) will cost $500,000 or
more, and delivered to the Agency evidence, in a form satisfactory to Agency, that said
subcontractor has obtained lien and completion Contractor Bonds for the completion of such
contractor's work in the construction of the Phase of Development applicable to each Parcel to
be acquired at the Closing. Said Contractor Bonds shall provide that the Agency is authorized to
enforce the same as a third party beneficiary.
(o) Permanent Clubhouse. For the Escrow that includes the Ranch
Villas Parcel only, the City shall have completed and opened a permanent clubhouse in the
SilverRock Resort Area and determined, in its sole and absolute discretion, that the Ranch Villas
Parcel is not necessary for any Golf Course related purpose..
(p) Operating Agreement. Developer shall have submitted to Agency
and Agency shall have approved, an operating agreement with DHR that obligates DHR to
operate the Phase of Development at a Four Star Quality or higher, and in accordance with all
applicable requirements set forth herein and in the Development Agreement (an "Operating
Agreement") (applicable only to Escrows that include the Boutique Hotel Parcel, Ranch Villas
Parcel, Resort Hotel Parcel, Lake Casitas Parcel, and/or Golf Casitas Parcel).
(q) Deposit Payments. Developer shall have deposited into Escrow all
Deposit Payments then due.
(r) Water Agreement. Developer shall have entered into a standard
Domestic Water and/or Sanitation Installation Agreement with the Coachella Valley Water
District ("CVWD"), substantially in the form attached as Exhibit C to that certain Domestic
Water and Sanitation System Installation and Irrigation Service Agreement entered into by and
between the City and CVWD on or about June 11, 2005, and recorded in the Official Records of
the County of Riverside, as Instrument No. 2005-0852063, on June 14, 2005.
(s) Completion Guarantee. Lowe Enterprises has executed a
completion guarantee in substantially the form and substance of the completion guarantee
provided to Developer's construction lender, in favor of the Agency, for the lien -free completion
of construction of the improvements in the applicable Phase of Development for the Project.
(t) Maintenance Agreement. Developer shall have entered into a
maintenance agreement with the City or Agency regarding maintenance of certain portions of the
golf course lakes located or to be located adjacent to the property and certain landscaped
parkways, sidewalks, and trails (collectively, the "Public Improvements") all as depicted on
Attachment No. 13 hereof which is attached hereto and incorporated herein by this reference
(each, a "Maintenance Agreement"). At all Closings subsequent to the Closing for the Boutique
Hotel Parcel, the Maintenance Agreement shall be substantially in the form of the Maintenance
Agreement executed and recorded at the Closing for the Boutique Hotel.
(u) Signage Agreement. Developer shall have entered into with the
City or the Agency (as applicable) a signage agreement (applicable only to the Closings for the
Boutique Hotel Parcel, Resort Hotel Parcel, and Resort Retail Village Parcel). Notwithstanding
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other signage locations to be determined during the site development permit process, the signage
agreement for the Boutique Hotel Parcel shall provide for signage along Avenue 52, at the entry
point to said Phase of Development, the signage agreement for the Resort Hotel Parcel shall
provide for signage on Jefferson Street, at the Resort Hotel entry point; the signage agreement
for the Resort Retail Village Parcel shall provide for signage at the corner of Avenue 52 and
Jefferson Street, Avenue 54 and Jefferson Street, and Avenue 54, at the entry into SilverRock.
(v) Parcel Man. Agency shall have recorded or shall, concurrently
with the Closing for the Initial Escrow, record the Parcel Map in the Official Records of
Riverside County.
(w) Compatibility. Developer shall have delivered to Agency written
acknowledgement that the Project is compatible with other development within the Parcel Map.
205.2 Final Phasing Plan. Developer shall have submitted to Agency's
Executive Director and obtained approval therefrom of a final phasing plan for the Phase(s) of
Development to be constructed on the Parcel(s) to be conveyed pursuant to the Escrow.
205.3 Developer's Conditions of Closine. Developer's obligation to proceed
with the purchase of each Parcel is subject to the fulfillment or waiver by Developer of each and
all of the conditions precedent (a) through 6), inclusive, described below ("Developer's
Conditions Precedent to the Closing"), which are solely for the benefit of Developer, and which
shall be fulfilled or waived by the time periods provided for herein:
(a) No Default. Prior to the applicable Closing, Agency shall not be in
default of any of its obligations under the terms of this Agreement and all representations and
warranties of Agency contained herein shall be true and correct in all material respects.
(b) Execution of Documents. Agency shall have executed and
delivered into Escrow, the applicable Grant Deed(s), the applicable Option Agreement(s), the
applicable City Declaration of CC&Rs, the applicable Maintenance Agreement, and any other
documents required hereunder, and at the Initial Escrow only, the Memorandum of DDA. The
Development Agreement shall have been fully executed and recorded in the Official Records of
Riverside County.
(c) Review and Approval of Title. Developer shall have reviewed and
approved the Condition of Property Title, as provided in Section 203 hereof.
(d) Title Policv. The Title Company shall, upon payment of Title
Company's regularly scheduled premium, have agreed to provide to the Developer a Title Policy
at the applicable Closing, in accordance with Section 204 hereof.
(e) Environmental. The Developer shall have approved the
environmental condition of the Property and shall not have elected to terminate this Agreement
with respect to the Property pursuant to Section 207.2 hereof.
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(f) Design Approvals. Developer shall have obtained approval by the
City of the Design/Construction Development Drawings for the Phase of Development
applicable to each Parcel to be acquired at the Closing, as set forth in Section 302 hereof.
(g) Land Use Approvals. Developer shall have received all Land Use
Approvals required for the Phase of Development applicable to each Parcel to be acquired at the
Closing, pursuant to Section 302.5 hereof.
(h) Grading and Building Permits. All grading and building permits
required for the construction of the Phase of Development applicable to each Parcel to be
acquired at the Closing shall be available for issuance upon the payment of applicable permit
fees, posting of required security, and similar items.
(i) Financing. As provided in Section 311.1 hereof, Developer shall
have obtained and the Agency shall have approved Developer's financing for the Phase of
Development applicable to each Parcel to be acquired at the Closing, and such financing shall
close and be available to the Developer upon the applicable Closing.
0) Parcel Man. Agency shall have recorded or shall, concurrently
with the Closing for the Initial Escrow, record the Parcel Map in the Official Records of
Riverside County.
206. Studies and Reports.
206.1 Access to Property. Prior to the Closing for the Initial Escrow, Agency
shall provide representatives of Developer the right of access to all portions of the Property for
the purpose of obtaining data and making surveys and tests necessary to carry out this
Agreement, including without limitation the investigation of the environmental condition of the
Property pursuant to Section 207 hereof. Any preliminary work undertaken on the Property by
Developer prior to the Closing for the Initial Escrow shall be done at the sole expense of the
Developer. In no event shall Developer conduct any intrusive testing procedures on the Property
without the prior written consent of Agency, which consent shall not be unreasonably withheld.
Developer shall also have the right to investigate all matters relating to the zoning, use and
compliance with other applicable laws, codes, and ordinances which relate to the use and
occupancy of the Property. Agency shall cooperate to assist Developer in completing such
inspections and special investigations at no cost or expense to Agency other than the time of
Agency's personnel and incidental photocopying and like costs. Such inspections and
investigations shall be conducted only (a) upon no less than forty-eight (48) hours' notice to
Agency, (b) between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, and (c) but
only at such times and in such a manner as to minimize any disruption to the Property. Agency
shall have the right, but not the obligation, to accompany Developer during such investigations
and/or inspections. As a condition to any such entry, Developer shall (i) conduct all work or
studies in a diligent, expeditious and safe manner and not allow any dangerous or hazardous
conditions to occur on the Property during or after such investigation; (ii) comply with all
applicable laws and governmental regulations; (iii) keep the Property free and clear of all
materialmen's liens, lis pendens and other liens arising out of the entry and work performed
under this paragraph; (iv) maintain or assure maintenance of workers' compensation insurance
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(or state approved self-insurance) on all persons entering the property in the amounts required by
the State of California; (v) provide to Agency prior to initial entry a certificate of insurance
evidencing that Developer and/or the persons entering the Property have procured and have in
effect the insurance required by Section 306; and (vi) repair any damage it causes to the Property
during the course of such investigations and/or inspections, as such damage occurs, and restore
the Property to the condition existing prior to the investigations and/or inspections, including,
without limitation, restabilizing any portions of the Property on which Developer's work
removed or caused the removal of the soil stabilizer present on the Property, to the satisfaction.
Any work undertaken pursuant to this Section 206 shall be undertaken only after securing any
necessary permits from the appropriate governmental agencies. The Developer's approval of the
environmental and soils condition of the Property shall be a Developer's Condition Precedent to
the Closing, as set forth in Section 205.2 hereof. If the Developer, based upon the above tests,
reports, and review, disapproves the environmental or soils condition of the Property, in its sole
and absolute discretion, then the Developer may (x) at its sole cost and with prior written
approval of the Agency of any remediation proposal, remediate the Property, or any specific
contaminated portion thereof, to an acceptable condition, or (y) terminate this Agreement by
written Notice to the Agency pursuant to Section 603 hereof. From and after the Effective Date
hereof, and continuing until the earlier of (1) the Close of Escrow for the last portion of the
Property Developer intends to acquire from Agency, or (2) termination of this Agreement,
Agency shall not take any affirmative action to affect the condition of the Property without the
Developer's prior written consent. Agency may revoke the foregoing right of access upon two
(2) days written notice to Developer delivered in accordance with Section 701 below in the
event: (I) in the reasonable judgment of Agency, such revocation is necessary to protect the
public health, safety, or welfare pursuant to the exercise of Agency's police powers; or (II)
Developer is in violation of the terms of this Agreement or any applicable law, statute,
ordinance, rule, or regulation pertaining to the preliminary work permitted hereunder or
Developer's or the Developer Representative's entry upon the Property pursuant to this
Agreement, and Developer has failed to cure such violation within two (2) days following
Developer's receipt of written notice of such violation from Agency.
206.2 Indemnification. Developer shall protect, defend, indemnify and hold
harmless Agency and City and Agency's and City's respective officers, officials, members,
employees, agents, and representatives (any of the foregoing shall be known individually as
"Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and severally, against
and from any and all claims, demands, causes of action, damages, costs, expenses, losses and
liabilities, at law or in equity, of every kind or nature whatsoever, including attorneys' fees and
expert witness fees, but excluding those resulting from environmental contamination of the
Property or other defects on the Property existing prior to Developer's entry thereon or not
otherwise caused by Developer or any of the Developer Representatives, but including, without
limitation, injury to or death of any person or persons and damage to or destruction of any
property, threatened, brought or instituted ("Claims"), arising out of or in any manner directly or
indirectly connected with the entry upon the Property by Developer or any of the Developer
Representatives pursuant to this Section or Section 207, below, including without limitation:
(a) any damage to the Property and any liability to any third party
incurred by reason of any acts or omission of, including, but not limited to, any commission of
any negligent or tortious acts, by Developer or the Developer Representatives, or any of them;
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(b) any mechanics' or materialmen's liens, claims, demands, actions
or suits arising (directly or indirectly) from (i) any work performed or materials supplied to or for
Developer, or (ii) any activities of Developer or any of the Developer Representatives, or any of
them, on or relating to the Property (including, without limitation, any claims by any of such
Developer Representatives); and
(c) any costs of removing Developer or the Developer Representatives
from the Property after the expiration of the term hereof unless Developer is otherwise entitled to
possession of the Property at such time.
207. Condition of the Property
207.1 Disclosure. The Agency shall, within the time set forth in the Schedule of
Performance, provide to the Developer copies of any environmental studies and reports with
respect to the Property of which it has actual knowledge, without any duty of investigation or
inquiry.
207.2 Investigation of Property. Pursuant to Section 206 hereof, the Developer
may engage an Environmental Consultant to make such investigations as Developer deems
necessary, including any "Phase 1" and/or "Phase 2" investigations of the Property, and the
Agency shall promptly be provided a copy of all final reports and test results provided by the
Environmental Consultant (the "Property Environmental Reports"). The Developer shall be
permitted to make such inspections of the Property pursuant to the requirements of Section 206.
The Developer shall approve or disapprove of the environmental condition of the Property in the
Developer's sole discretion, not later than thirty (30) days prior to the scheduled date for the
Closing of the Initial Escrow. The Developer's approval of the environmental condition of the
Property shall be one of Agency's Conditions Precedent to the Closing and one of Developer's
Conditions Precedent to the Closing, as set forth in Section 205 hereof. If the Developer, based
upon the Property Environmental Reports, disapproves the environmental condition of the
Property for any reason, in the Developer's sole discretion, then the Developer may (i) at its sole
cost and with prior written approval of the Agency of any remediation proposal, remediate the
Property, or any specific contaminated portion thereof, to an acceptable condition, or
(ii) terminate this Agreement by written Notice to the Agency pursuant to Section 603 hereof.
207.3 No Further Warranties As To Property Release of Agency. The physical
condition, possession, and title of the Property is and shall be delivered from Agency to
Developer in an "AS -IS" "WHERE IS" "WITH ALL FAULTS" condition, with no warranty
expressed or implied by Agency, including without limitation, the presence of Hazardous
Materials or the condition of the soil, its geology, the presence of known or unknown seismic
faults, or the suitability of the Property for the development purposes intended hereunder.
Upon the Agency's conveyance of fee title to each Parcel comprising the Property
to Developer, Developer shall be deemed to have waived, released and discharged forever the
Agency and the City, and their employees, officers, agents, members and representatives, from
all present and future claims, demands, suits, legal and administrative proceedings and from all
liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out
of or in any way connected with the condition of such Parcel, any Hazardous Materials on the
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Parcel, or the existence of Hazardous Materials contamination due to the generation of
Hazardous Materials from the Parcel or any other real property, however they came to be placed
there, except that arising out of the sole negligence or intentional misconduct of the Agency, the
City, or their employees, officers, agents or representatives.
The Developer acknowledges that it is aware of and familiar with the provisions
of Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his or 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."
Only with respect to the condition of the Property as set forth in this Section
207.31 the Developer hereby waives and relinquishes all rights and benefits which it may have
under Section 1542 of the California Civil Code.
Developer's Initials
Notwithstanding anything herein to the contrary, the release set forth in this
Section 207.3 shall become effective as to the individual Parcels comprising the Property on the
date Developer acquires fee title to each of said Parcel(s).
207.4 Developer Precautions After the Closing. Upon the Closing for the one or
more Parcels, the Developer shall take all necessary precautions to prevent the release into the
environment of any Hazardous Materials which are located in, on or under such Parcels, or
placed in, on, or under such Parcel(s) after the Close of Escrow for such Parcel(s). Such
precautions shall include compliance with all Governmental Requirements with respect to
Hazardous Materials. In addition, the Developer shall install and utilize such equipment and
implement and adhere to such procedures as are consistent with commercially reasonable
standards as respects the disclosure, storage, use, removal and disposal of Hazardous Materials.
207.5 Developer Indemnity. Upon the Closing for one or more Parcels,
Developer agrees to indemnify, defend and hold Agency harmless from and against any claim,
action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage,
or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based
upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous
Materials on, under, in, or about, or the transportation of any such Hazardous Materials to or
from, the Parcel(s) which first occurs after the Closing for such Parcel(s), or (ii) the violation, or
alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license
relating to the use, generation, release, discharge, storage, disposal or transportation of
Hazardous Materials on, under, in, or about, or to or from, the applicable Parcel(s) by Developer
or by Developer's contractors, subcontractors, agents, consultants, or representatives which
occurs after the Closing for such Parcel(s). This indemnity shall include, without limitation, any
damage, liability, fine, penalty, cost or expense arising from or out of any claim, action, suit or
proceeding for personal injury (including sickness, disease or death), tangible or intangible
property damage, compensation for lost wages, business income, profits or other economic loss,
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damage to the natural resource or the environment, nuisance, contamination, leak, spill, release
or other adverse effect on the environment. At the request of the Developer, the Agency shall
cooperate with and assist the Developer in its defense of any such claim, action, suit, proceeding,
loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that
the Agency shall not be obligated to incur any expense in connection with such cooperation or
assistance.
208. Deposit Payments. Developer shall be required to deposit with Escrow Agent
certain payments, to serve as a guarantee of Developer's commitment to develop the Project, in
accordance with the schedule set forth in Section 208.1 below (individually, a "Deposit
Payment," and collectively, the "Deposit Payments").
208.1 Schedule of Payments
(a) Initial Deposit Payment: Developer shall deposit Eight Hundred
Twenty -Five Thousand Dollars ($825,000) (the "Initial Deposit Payment Date"), with Escrow
Agent no later than the thirtieth (30`h) day after the Effective Date;
(b) Second Deposit Payment: Developer shall deposit Eight Hundred
Twenty -Five Thousand Dollars ($825,000) with Escrow Agent no later than the one (1) year
anniversary of the Initial Deposit Payment Date;
(c) Third Deposit Payment: Developer shall deposit Seven Hundred
Thousand Dollars ($700,000) with Escrow Agent no later than the second (2"d) anniversary of
the Initial Deposit Payment Date;
(d) Fourth Deposit Payment: Developer shall deposit Seven Hundred
Thousand Dollars ($700,000) with Escrow Agent no later than the third (P) anniversary of the
Initial Deposit Payment Date;
(e) Fifth Deposit Payment: Developer shall deposit Two Hundred
Thousand Dollars ($200,000) with Escrow Agent no later than the fourth (4 ) anniversary of the
Initial Deposit Payment Date.
208.2 Release of Deposit Payment Funds to Developer. Upon the written
request of Developer that has been approved, in writing, by Agency, in Agency's reasonable
discretion, Escrow Agent shall release portions of the funds comprising Deposit Payments, to the
extent such payments have been made by Developer, to reimburse Developer for costs Developer
incurs after the Effective Date for planning, designing, processing entitlements, and
environmental review, including staff costs to the extent such costs do not comprise more than
thirty-five percent (35%) of the requested disbursement, but not including legal fees and costs,
that are related to the Project (the "Eligible Costs"), in accordance with the terms of this Section
208.2.
(a) Boutique Hotel Portion of the Deposit Payments. Escrow Agent
shall pay up to Five Hundred Thousand Dollars ($500,000) from the Initial Deposit Payment,
and up to Five Hundred Thousand Dollars ($500,000) from the Second Deposit Payment to
Developer to reimburse Developer for Eligible Costs related to the Boutique Hotel (the
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"Boutique Hotel Portion of the Deposit Payments"). To the extent Escrow Holder has not paid
to Developer all of the Boutique Hotel Portion of the Deposit Payments it has received, pursuant
to the process set forth above by the Closing for the Boutique Hotel Parcel, all remaining
portions thereof shall be applied towards the Purchase Price for the Boutique Hotel Parcel.
(b) Ranch Villas Development Portion of the Deposit Payments.
Escrow Agent shall pay up to Twenty -Five Thousand Dollars ($25,000) from the Initial Deposit
Payment, and up to Twenty -Five Thousand Dollars ($25,000) from the Second Deposit Payment
to Developer to reimburse Developer for Eligible Costs related to the Ranch Villas Development
(the "Ranch Villas Development Portion of the Deposit Payments"). To the extent Escrow
Holder has not paid to Developer all of the Ranch Villas Development Portion of the Deposit
Payments it has received, pursuant to the process set forth above by the Closing for the Ranch
Villas Parcel, all remaining portions thereof shall be applied towards the Purchase Price for the
Ranch Villas Parcel
(c) Resort Hotel and Lake Casitas Development Portion of the Deposit
Payments. Escrow Agent shall pay up to Two Hundred Thousand Dollars ($200,000) from the
Initial Deposit Payment, up to Two Hundred Thousand Dollars ($200,000) from the Second
Deposit Payment, up to Four Hundred Thousand Dollars ($400,000) from the Third Deposit
Payment, and up to the Four Hundred Thousand Dollars ($400,000) from the Fourth Deposit
Payment, to Developer to reimburse Developer for Eligible Costs related to the Resort Hotel and
the Lake Casitas Development (the "Resort Hotel and Lake Casitas Development Portion of the
Deposit Payments"). To the extent Escrow Holder but has not paid to Developer all of the
Resort Hotel and Lake Casitas Development Portion of the Deposit Payments it has received,
pursuant to the process set forth above by the Closing for the Resort Hotel Parcel or the Lake
Casitas Parcel (whichever occurs earlier), all remaining portions thereof shall be applied towards
the Purchase Price for the Resort Hotel Parcel or Lake Casitas Parcel (as applicable).
(d) Resort Retail Village Development Portion of the Deposit
Payments. Escrow Agent shall pay up to Fifty Thousand Dollars ($50,000) from the Initial
Deposit Payment, up to Seventy -Five Thousand Dollars ($75,000) from the Second Deposit
Payment, up to One Hundred Fifty Thousand Dollars ($150,000) from the Third Deposit
Payment, and up to the One Hundred Fifty Thousand Dollars ($150,000) from the Fourth
Deposit Payment to Developer to reimburse Developer for Eligible Costs related to the Resort
Retail Village Development (the "Resort Retail Village Development Portion of the Deposit
Payments"). To the extent Escrow Holder has not paid to Developer all of the Resort Retail
Village Development Portion of the Deposit Payments it has received, pursuant to the process set
forth above by the time Developer is required to pay to City or Agency (as applicable)
Developer's initial payment under the Resort Retail Village Parcel Ground Lease, then Escrow
Agent shall pay to the City or Agency (as applicable) an amount of the remaining portions
thereof to be applied to such initial lease payment. To the extent that any portions of the Resort
Retail Village Development Portion of Deposit Payments remain after Developer's initial lease
payment has been paid to the City or Agency (as applicable), Escrow Agent shall pay such
remaining portions to Developer.
(e) Golf Casitas Development Portion of the Deposit Payments.
Escrow Agent shall pay up to Fifty Thousand Dollars ($50,000) from the Initial Deposit
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Payment, up to Twenty -Five Thousand Dollars ($25,000) from the Second Deposit Payment, up
to One Hundred Thousand Dollars ($100,000) from the Third Deposit Payment, up to the One
Hundred Thousand Dollars ($100,000) from the Fourth Deposit Payment, and up to Two
Hundred Thousand Dollars ($200,000) from the Fifth Deposit Payment to Developer to
reimburse Developer for Eligible Costs related to the Golf Casitas Development (the "Golf
Casitas Development Portion of the Deposit Payments"). To the extent Escrow Holder has not
paid to Developer all of the Golf Casitas Portion of the Deposit Payments it has received,
pursuant to the process set forth above by the Closing for the Golf Casitas Parcel, all remaining
portions thereof shall be applied towards the Purchase Price for the Golf Casitas Parcel.
208.3 Agency Retention of Deposit Payment Funds. Subject to Section 603
below, in the event this Agreement is terminated prior to the Initial Escrow for any reason other
than as a result of a Default by the Agency which is not cured within the applicable cure period,
Escrow Agent shall, within ten (10) days thereafter, deliver to Agency, and Agency shall be
entitled to retain, all unreleased portions of any Deposit Payments delivered to Escrow Agent
pursuant to this Section 208. Subject to Section 604 below, in the event the Initial Escrow
closes, but a subsequent Escrow fails to close and is terminated for any reason other than as a
result of a Default by the Agency which is not cured within the applicable cure period, Escrow
Agent shall, within ten (10) days thereafter, deliver to Agency, and Agency shall be entitled to
retain, all unreleased portions of the Deposit Payments delivered to Escrow Agent pursuant to
this Section 208.
209. Right of First Refusal. Right of First Refusal. Agency hereby grants to Developer
a right of first refusal to purchase that certain real property designated as Lot 6 on the Parcel Map
("Lot 6") and/or that certain real property designated as Lot 8 on the Parcel Map ("Lot 8"), in
accordance with the following terms and conditions ("Developer's Right of First Refusal"):
(a) Developer, during the period Developer's Right of First Refusal is effective
pursuant to the terms of this Section 209, shall have the right to exercise Developer's Right of
First Refusal with respect to each of Lot 6 and Lot 8 the first time, and only the first time,
Agency has determined to sell the applicable lot for hotel use and provided that at the time of
"Agency's Sale Notice" (as defined below) Developer and any and all of Developer's successors
in interest are not then in default under this Agreement, the Development Agreement, or the City
Declaration of CC&Rs.
(b) Prior to concluding any sale with a third party for either or both of Lot 6 or Lot 8
for hotel use, Agency shall provide Developer with written notice of Agency's intent to sell said
lot(s) for hotel use ("Agency's Sale Notice"). Agency's Sale Notice shall include a copy of the
agreement that contains the terms of the proposed sale (the "Proposed Sale Agreement").
Developer shall have thirty (30) days after receiving Agency's Sale Notice to notify Agency, in
writing, of Developer's election to exercise Developer's Right of First Refusal to acquire the
applicable lot(s) in accordance with the terms set forth in the Proposed Sale Agreement
("Developer's Election to Exercise"). In the event that before the expiration of Developer's
Election to Exercise, the economic terms of the Proposed Sale Agreement are subsequently
revised in a manner that makes the Proposed Sale Agreement materially more favorable to the
third party purchaser, Agency shall resubmit the Proposed Sale Agreement, as revised, to
Developer, and Developer shall have the right to exercise Developer's Right of First Refusal in
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accordance with the process, including the timeframes, outlined above in this Section 209. For
purposes of this Section 209, a reduction in the consideration paid to Agency by twenty-five
cents ($0.25) or less per square foot of property involved shall be deemed not to be materially
more favorable to the third party purchaser.
(c) Developer's failure to deliver to Agency Developer's Election to Exercise within
such thirty (30) day period shall be deemed Developer's election not to exercise Developer's
Right of First Refusal and Developer's Right of First Refusal with respect to Lot 6 and/or Lot 8,
as applicable, shall then terminate and Developer shall have no further right of first refusal with
respect to such lot(s). If Developer elects not to exercise (or is deemed to have elected not to
exercise) Developer's Right of First Refusal then Agency may sell Lot 6 and/or Lot 8 (as
applicable) to the third party purchaser, in accordance with the terms of the Proposed Sale
Agreement.
(d) If Developer elects to exercise Developer's Right of First Refusal by delivering to
Agency Developer's Election to Exercise, the parties shall promptly open an escrow with the
Escrow Agent, and provide the Escrow Agent with a copy of the Proposed Sale Agreement that
has been assigned to Developer, accompanied by an executed assignment agreement, or an
executed purchase and sale agreement substantially in the form of the Proposed Sale Agreement,
and the parties shall endeavor to close the escrow in accordance with the terms of the applicable
agreement. Developer's election to exercise Developer's Right of First Refusal. as to Lot 6
and/or Lot 8, as applicable, shall terminate Developer's Right of First Refusal as to such lot(s)
and Developer shall have no further right of first refusal with respect to such lot(s). Failure of
such escrow to close for any reason other than a default by Agency shall not effect the foregoing
termination of Developer's Right of First Refusal with respect to the applicable lot(s).
(e) Notwithstanding the foregoing or anything in this Agreement to the contrary,
Developer's Right of First Refusal as to both Lot 6 and Lot 8 shall terminate and be of no further
force or effect on the earlier of (a) the date this Agreement is terminated by either Developer or
Agency, or (b) the fifth (5a') anniversary of the Effective Date.
M Upon the termination of Developer's Right of First Refusal as to each of Lot 6
and Lot 8, or both, as set forth in this Section 209, Developer shall execute a termination or
quitclaim document reasonably requested by Agency and/or reputable title company to remove
Developer's Right of First Refusal as a cloud on title as to such lot(s).
(g) This Section 209 and Developer's Right of First Refusal set forth herein shall not
apply to an "Internal Agency Transfer." For purposes of this Section 209, an Internal Agency
Transfer is defined as a conveyance, from time to time and one or more times, of Lot 6 and/or
Lot 8 by Agency to the City or to any joint powers authority or similar entity in which Agency or
City is a member, or to subsequent conveyances of Lot 6 and/or Lot 8 between and among the
Agency, City, and such joint powers authorities or similar entities. The transferee of an Internal
Agency Transfer shall take conveyance of Lot 6 and/or Lot 8 subject to, and shall be bound by,
the terms of this Section 209 until Developer's Right of First Refusal is terminated pursuant to
the terms of this Section 209.
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300. DEVELOPMENT OF THE PROJECT
301. Scope of Development. The Developer shall develop or cause the development of
the Project in accordance with the Scope of Development, the Specific Plan, the City Municipal
Code, Governmental Requirements, Land Use Approvals, and the plans, drawings and
documents submitted by the Developer and approved by the Agency as set forth herein. Prior to
commencement of construction of any Phase of Development the Developer shall obtain and
deliver to the Agency evidence of the Contractor Bonds required pursuant to Section 205.1(n)
covering the applicable Phase of Development, and which provide that the Agency is authorized
to enforce such completion bond as a third party beneficiary.
302. Design Review.
302.1 Developer Submissions. Before commencement of construction of any
Phase of Development, and as one of Agency's Conditions Precedent to the Closing pursuant to
Section 205.1(d), at or prior to the time set forth herein, the Developer shall submit to the City
any plans and drawings (collectively, the "Design/Construction Development Drawings") which
may be required by the City with respect to any permits and entitlements which are required to
be obtained to develop a Phase of Development, and such plans for the Phase of Development as
required by the City in order for the Developer to obtain building and grading permits for the
Phase of Development. Within thirty (30) days after the City's disapproval or conditional
approval of such plans, the Developer shall revise the portions of such plans identified by the
City as requiring revisions and resubmit the revised plans to the City. All such
Design/Construction Development Drawings shall be consistent with the designs set forth in the
SilverRock Resort Project Summary prepared by Lowe Enterprises dated June 15, 2005, and the
SilverRock Resort Vision Summary 2005, prepared by 02 Architects, Inc., dated June 15, 2005,
and Agency reserves the right to request that the City disapprove any plans or designs that
Agency's Executive Director believes has too few Units.
302.2 City Review and Approval. The City shall have all rights to review and
approve or disapprove all Design/Construction Development Drawings and other required
submittals in accordance with the City Municipal Code, and nothing set forth in this Agreement
shall be construed as the City's approval of any or all of the Design/Construction Development
Drawings or other required submittals.
302.3 Revisions. Any and all change orders or revisions required by the City
and its inspectors which are required under the City Municipal Code and all other applicable
Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws
and regulations shall be included by the Developer in its Design/Construction Development
Drawings and other required submittals and shall be completed during the construction of the
applicable Phase of Development.
302.4 Defects in Plans. The Agency and the City shall not be responsible either
to the Developer or to third parties in any way for any defects in any of the Design/Construction
Development Drawings, nor for any structural or other defects in any work done according to the
approved Design/Construction Development Drawings, nor for any delays reasonably caused by
the review and approval processes established by this Section 302.
6.
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302.5 Land Use Approvals. Before commencement of construction of any Phase
of Development or other works of improvement upon the Property, the Developer shall, at its
own expense, secure or cause to be secured any and all land use and other entitlements, permits
and approvals which may be required for the applicable Phase of Development or work of
improvement by the City or any other governmental agency affected by such construction or
work, including but not limited to, site development permits, conditional use permits, temporary
use permits, minor use permits, and any environmental studies and documents required pursuant
to the California Environmental Quality Act (collectively, the "Land Use Approvals").
303. Schedule of Performance. The Developer shall submit all Design/Construction
Development Drawings, commence and complete all construction of the Project, and satisfy all
other obligations and conditions of this Agreement, within the times established therefor in the
Schedule of Performance.
304. Indemnity and Insurance Requirements. The Developer shall indemnify, defend,
and hold harmless the Agency and the City, and their respective officers, officials, members,
employees, agents, and representatives, from all claims or suits for, and damages to, property and
injuries to persons, including accidental death (including expert witness fees, attorneys fees, and
costs), which may be caused by any of the Developer's activities under this Agreement.
Commencing with the Effective Date hereof and ending on the date Agency issues a
Release of Construction Covenants for the final Phase of Development to be constructed on the
Property (the "Completion of Construction Date"), Developer shall procure and maintain, at its
sole cost and expense, in a form and content satisfactory to the Executive Director, the following
policies of insurance:
A policy of commercial general liability insurance written on a per occurrence basis in an
amount not less than Three Million Dollars ($3,000,000.00) per occurrence and Three Million
Dollars ($3,000,000.00) in the aggregate.
A policy of workers' compensation insurance in such amount as will fully comply with
the laws of the State of California against any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by Developer in the course of carrying
out the work or services contemplated in this Agreement.
A policy of commercial automobile liability insurance written on a per occurrence basis
in an amount not less than Three Million Dollars ($3,000,000.00). Said policy shall include
coverage for owned, non -owned, leased, and hired cars.
The following additional requirements shall apply to all of the above policies of
insurance:
All of the above policies of insurance shall be primary insurance and, except the
Worker's Compensation insurance, shall name Agency, City, and their respective officers,
officials, members, employees, agents, and representatives as additional insureds, using a pre-
2004 additional insured endorsement (or equivalent). The insurer shall waive all rights of
subrogation and contribution it may have against Agency, City, and their respective officers,
officials, members, employees, agents, and representatives, and their respective insurers. All of
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said policies of insurance shall provide that said insurance may not be materially amended or
cancelled without providing thirty (30) days' prior written notice to Agency and City. In the
event any of said policies of insurance are cancelled, the Developer shall, prior to the
cancellation date, submit new evidence of insurance in conformance with this Section to the
Executive Director. Not later than the Effective Date of this Agreement, Developer shall provide
the Executive Director with Certificates of Insurance or appropriate insurance binders evidencing
the above insurance coverages and said Certificates of Insurance or binders shall be subject to
the reasonable approval of the Executive Director. Upon the request of the Executive Director,
Developer shall provide Agency with complete copies of each policy of insurance required by
this Agreement.
The policies of insurance required by this Agreement shall be satisfactory only if
issued by companies (i) licensed and admitted to do business in California, rated "A" or better in
the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register,
and only if they are of a financial category Class VII or better, or (ii) authorized to do business in
California, rated "A+" or better in the most recent edition of Best Rating Guide, The Key Rating
Guide, or in the Federal Registry and only if they are of a financial category Class XV.
Notwithstanding the foregoing, in the event that the policies required hereunder are not available
from such insurers at commercially reasonable rates, the Executive Director shall have the
authority, in his or her sole and absolute discretion, to waive one or more of such requirements
provided the proposed policies will adequately protect the Agency's interests hereunder.
Agency may reasonably require coverage increases, provided that the percentage
increase in coverage shall not be required to exceed the percentage increase in the Consumer
Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for
Urban Wage Earners and Clerical Workers, Los Angeles -Riverside -Orange County Average, All
Items (1984 = 100) (the "Index"), from and after the date of this Agreement, or, if said Index is
discontinued, such official index as may then be in existence and which is most nearly equivalent
to said Index (the "CPI Adjustment"). Unless otherwise approved in advance by the Executive
Director, the insurance to be provided by Developer may provide for a deductible or self -insured
retention of not more than Fifty Thousand Dollars ($50,000), with such maximum amount to
increase at the same rate as the periodic increases in the minimum amount of total insurance
coverage set forth above.
Developer agrees that the provisions of this Section shall not be construed as limiting in
any way the extent to which Developer may be held responsible for the payment of damages to
any persons or property resulting from the Developer's activities or the activities of any person
or persons for which the Developer is otherwise responsible.
305. Indemni . Commencing on the Effective Date and ending on the Completion of
Construction Date, the Developer shall defend, indemnify, assume all responsibility for, and hold
the Agency and the City, and their respective representatives, volunteers, officers, officials,
members, employees and agents, harmless from all claims, demands, damages, defense costs or
liability of any kind for damage to property or injuries to persons, including accidental death
(including attorneys' fees and costs), which may be caused by any acts or omissions of the
Developer under this Agreement, whether such activities or performance thereof be by the
Developer or by anyone directly or indirectly employed or contracted with by the Developer and
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whether such damage shall accrue or be discovered before or after termination of this Agreement
including, but not limited to, Developer's failure to pay, if required, prevailing wages on the
construction and development of any Phase of Development. The Developer shall not be liable
for property damage or bodily injury occasioned by the sole negligence or willful misconduct of
the Agency, the City or their respective agents or employees.
306. Rights of Access. Prior to the Completion of Construction Date, for purposes of
assuring compliance with this Agreement, representatives of the Agency shall have the right of
access to the Property, without charges or fees, at normal construction hours during the period of
construction for the purposes of this Agreement, including but not limited to, the inspection of
the work being performed in constructing the Project so long as Agency representatives comply
with all safety rules and do not interfere with construction. The Agency (or its representatives)
shall, except in emergency situations, notify the Developer prior to exercising its rights pursuant
to this Section 308. Agency shall indemnify, defend, and hold Developer harmless from and
against all costs, claims, liability and judgments arising from the Agency's exercise of its right of
access hereunder.
307. Compliance With Laws• Payment of Taxes.
307.1 Compliance with Laws. The Developer shall carry out the design,
construction and operation of the Project and each Phase of Development in conformity with all
applicable laws, including all applicable state labor standards, the City zoning and development
standards, building, plumbing, mechanical and electrical codes, and all other provisions of the
City Municipal Code, and all applicable disabled and handicapped access requirements,
including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et
seq., Government Code Section 4450, et seq., Government Code Section 11135, at seq., and the
Unruh Civil Rights Act, Civil Code Section 51, at seq.
Nothing herein constitutes a representation or warranty by Agency that the
construction of the Project is (i) not a "public work" or (ii) not otherwise subject to California
Health and Safety Code Sections 33423 through 33426, or Chapter 1 of Part 7 of the California
Labor Code (commencing with section 1720), and all applicable statutory and regulatory
provisions related thereto, and Developer, on behalf of itself and its contractors and
subcontractors, expressly waives any right of reimbursement for any "increased costs" under
California Labor Code Section 1781 or otherwise with respect to the Property or Project.
Developer shall indemnify, defend, and hold Agency harmless, including but not limited to
litigation costs, expert witness fees, and reasonable attorneys' fees, from and against any and all
claims pertaining to the payment of wages for the Property or Project or failure to comply with
federal or state labor laws, regulations, or standards.
307.2 Taxes and Assessments. The Developer shall pay prior to delinquency all
ad valorem real estate taxes and assessments on the Property (after such time that Developer
acquires fee title to or becomes the ground lessee of each of the Parcels composing the Property),
subject to the Developer's right to contest in good faith any such taxes. Developer agrees on
behalf of itself, and on behalf of all persons or entities that may own an interest in the Property or
in the Units in the future, that during the term of the Declaration neither Developer nor any such
person or entity shall (i) apply for or receive any exemption from the payment of property taxes
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4t: I
or assessments on any interest in or to the Project or any of the Parcels composing the Property,
or (ii) take action, including any assessment appeal, to decrease the assessed value of any of the
Property (including the value of each respective Phase of Development) below the final assessed
value at the time the development of the Property or a Phase of Development (as applicable) is
completed.
308. Release of Construction Covenants. Upon the City's issuance of the last and final
certificate of occupancy for a Phase of Development, the Developer may request that the Agency
furnish the Developer with a Release of Construction Covenants for the applicable Phase of
Development. The Agency shall not unreasonably withhold any such Release of Construction
Covenants, and if the Developer is entitled thereto shall furnish to Developer a recordable
Release of Construction Covenants for the applicable Phase of Development within fifteen (15)
days after Developer's request thereof. The Release of Construction Covenants shall be a
conclusive determination of satisfactory completion of the applicable Phase of Development and
the Release of Construction Covenants shall so state. Any party then owning or thereafter
purchasing, leasing or otherwise acquiring any interest in the real property for which a Release
Construction Covenants has been issued shall not (because of such ownership, purchase, lease or
acquisition) incur any obligation or liability under this Agreement except for those continuing
covenants as described in Article 400 of this Agreement.
If the Agency refuses or fails to furnish a Release of Construction Covenants after
written request from the Developer, the Agency shall, within fifteen (15) days after written
request therefor, provide the Developer with a written statement of the reasons the Agency
refused or failed to furnish a Release of Construction Covenants. The statement shall also
contain the Agency's opinion of the actions the Developer must take to obtain a Release of
Construction Covenants for the applicable Phase of Development. A Release of Construction
Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of
the Developer to any holder of any mortgage, or any insurer of a mortgage securing money
loaned to finance the applicable Phase of Development, or any part thereof. The Release of
Construction Covenants is not a notice of completion as referred to in Section 309.3 of the
California Civil Code.
309. Financing of the Project.
309.1 A_nyroval of Financing. Within the times set forth in the Schedule of
Performance, and as one of Agency's Conditions Precedent to the Closing for each Escrow,
Developer shall submit to Agency evidence that Developer (i) has obtained or will have obtained
as of the Closing, construction financing from a commercial lender necessary to undertake the
acquisition of the applicable Parcel, and the construction of the applicable Phase of
Development, in accordance with this Agreement which may be in the form of a commitment, a
term letter, or such other form, with all such forms to be approved by Agency in Agency's
reasonable discretion (a "Construction Loan"); (ii) if desired by Developer, has obtained
"Mezzanine" financing in a form reasonably acceptable to Agency; and (iii) has obtained
sufficient equity capital to cover the difference between (a) the sum of the Construction Loan
and the Mezzanine financing and (b) the total cost of acquiring the applicable Parcel and
developing the applicable Phase of Development ("Developer's Equity Contribution"). The
Agency shall approve or disapprove such evidence of financing within thirty (30) days after
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receipt of a complete submission for the applicable Phase of Development. Approval shall not be
unreasonably withheld, delayed, or conditioned. If Agency shall disapprove any such evidence of
financing, Agency shall do so by Notice to Developer stating with reasonable specificity the
reasons for such disapproval and Developer shall promptly obtain and submit to Agency new
evidence of financing. Agency shall approve or disapprove such new evidence of financing in
the same manner and within the same times established in this Section 311.1 for the approval or
disapproval of the evidence of financing as initially submitted to Agency. Developer shall close
each approved Construction Loan prior to or concurrently with the real estate closing for the
applicable Parcel. Such evidence of financing shall include the following: (a) a copy of a loan
commitment(s) or term letter(s), obtained by Developer from one or more financial institutions
for the Construction Loan, subject to such lenders' reasonable, customary and normal conditions
and terms, and (b) documentation reasonably satisfactory to the Agency as evidence of the
"Mezzanine" financing and Developer's Equity Contribution.
309.2 Changes Requested by Lenders. In the event that a lender which has been
approved pursuant to Section 311.1 hereof requires one or more amendments to this Agreement,
or any of the attachments hereto, which amendments are reasonably acceptable to the Agency
Executive Director and do not materially affect Agency's interest hereunder, the Agency
Executive Director or his or her designee is hereby authorized to make such amendments without
further authorization from the Agency Board; provided, however, that the foregoing is not
intended to restrict or limit the Agency's legislative discretion.
309.3 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, whenever the Agency may
deliver any notice or demand to Developer with respect to any breach or default by the
Developer in completion of construction of the Project or any Phase of Development, the
Agency 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 which has previously requested such notice in writing. Each
such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its
option, within sixty (60) 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. It is
understood that a holder shall be deemed to have satisfied the sixty (60) 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 thereof) if and to the extent any such holder has within
such sixty (60) day period commenced proceedings to obtain title and/or possession and
thereafter the holder diligently pursues such proceedings to completion and cures or remedies the
default.
309.4 Failure of Holder to Complete Project. In any case where, sixty (60) days
after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the
Property or any part thereof receives a notice from Agency of a default by the Developer in
completion of construction of the Project, or any Phase of Development under this Agreement,
and such holder has not elected to commence a cure of such default as set forth in this Section
311, or if it has elected to commence such a cure but thereafter defaults hereunder and failed to
timely cure such default, the Agency may purchase the mortgage or deed of trust by payment to
the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and
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interest and all other sums secured by the mortgage or deed of trust, including without limitation,
any prepayment fees and costs. If the ownership of the Property or any part thereof has vested in
the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the
Agency upon payment to the holder of an amount equal to the sum of the following:
(a) The unpaid mortgage or deed of trust debt at the time title became
vested in the holder (less all appropriate credits, including those resulting from collection and
application of rentals and other income received during foreclosure proceedings);
(b) All expenses with respect to foreclosure including reasonable
attorneys' fees;
(c) The net expense, if any (exclusive of general overhead), incurred
by the holder as a direct result of the subsequent management of the Property or part thereof,
(d) The costs of any improvements or expenditures made by such
holder;
(e) An amount equivalent to the interest that would have accrued on
the aggregate of the amounts set forth in (a) through (d) above had all such amounts become part
of the mortgage or deed of trust debt and such debt had continued in existence to the date of
payment by the Agency; and
(f) Any customary prepayment charges imposed by the lender
pursuant to its loan documents and agreed to by the Developer.
309.5 Right of the Agency to Cure Mortgage or Deed of Trust Default. hi the
event of a mortgage or deed of trust default or breach by the Developer prior to the completion of
the construction of the Project or any Phase of Development, Developer shall immediately
deliver to Agency a copy of any mortgage holder's notice of default. If the holder of any
mortgage or deed of trust has not elected to cure any default by Developer under this Agreement,
the Agency shall have the right but no obligation to cure the default. In such event, the Agency
shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the
Agency in curing such default. The Agency shall also be entitled to a lien upon the Property, or
portion of the Property against which the mortgage or deed of trust is recorded, to the extent of
such costs and disbursements actually made by Agency.
309.6 Holder Not Obligated to Construct Project. The holder of any mortgage or
deed of trust encumbering the Property shall not be obligated by the provisions of this
Agreement to construct or complete the Project, or any portion thereof, or to guaranty such
construction or completion; nor shall any such covenant or any other provision in this Agreement
be construed so to obligate such holder.
310. Developer CC&Rs. Prior to the Agency's issuance of a Release of Construction
Covenants for any Phase of Development that contains Condominium Hotel Units and/or
Fractional Units, Developer shall have submitted to City, obtained City's approval of, and
recorded against the underlying Parcel a declaration of covenants, conditions, and restrictions
that (i) establishes a homeowners' association, (ii) is necessary to create a condominium regime
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for the condominiums described on the Condominium Plan to be recorded in accordance with all
applicable laws; (iii) clearly sets forth the maintenance obligations of the owners of the
Condominium Hotel Units and Fractional Units; (iv) sets forth the obligations of the owners of
the Condominium Hotel Units and Fractional Units to pay certain resort fees, as further set forth
in the City Declaration of CC&Rs; and requires all such resort fees to be paid and brought
current prior to any sale by the owner thereof, and (v) includes a disclosure regarding the public
ownership and control of the existing golf course and any future golf course that may be
developed in the SilverRock Resort Area and a statement that Developer does not and cannot
guarantee that the City will not make changes to such golf course(s) or change the use of the
underlying real property (the "Developer CC&Rs").
311. Interference with Municipal Golf Course: Developer shall carry out the
construction of the Project so as to minimize interference with the municipal golf course located
in the SilverRock Resort Area (the "Golf Course"), including, without limitation, taking all
necessary actions to ensure that dust (i) does not blow off or leave any Parcel under development
and enter onto any portion of the Golf Course; or (ii) is not tracked from any Parcel under
development onto any of the roadways within the SiverRock Resort Area. Developer shall
screen any Parcel under development to minimize the visual impacts of such development on
persons using the Golf Course. Developer acknowledges that the City has entered into a Use
Agreement with the Desert Classic Charities, dba Bob Hope Chrysler Classic, pursuant to which
the Golf Course may be utilized for the Bob Hope Chrysler Classic annual tournament. In any
year when the tournament is held at the Golf Course, no construction activities shall take place
during the televised portion of the tournament unless authorized, in writing, by the City
Manager, and Developer and Developer's contractors and subcontractors shall ensure that during
the tournament all construction sites are left in a neat and orderly condition. Developer
additionally agrees to coordinate with the tournament officials to ensure that construction
activities do not interfere with the tournament.
312. Infrastructure Improvements. Developer shall be responsible for all of the
following:
312.1 The cost of any and all curb cuts necessary to connect any portions of the
Project to the backbone infrastructure within the SilverRock Resort Area.
312.2 The cost to restore or replace any of backbone infrastructure within the
SilverRock Resort Area Developer believes should be altered once the City has completed the
same.
312.3 The cost to repair any damage to the backbone infrastructure within the
SilverRock Resort Area caused by Developer's construction activities.
312.4 Reconnecting the water and sewer lines for the comfort station located on
the Boutique Hotel Parcel.
in the future.
312.5 Relocating any above -ground utility if such relocation becomes necessary
312.6 Constructing and installing on -site water and sewer laterals and/or loops.
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312.7 Installing and paying electricity costs for all on -site lighting needs.
In addition to the foregoing, Developer hereby acknowledges and agrees that no
alterations shall be permitted to the roadway and/or sewer alignment in the SilverRock Resort
Area once the City submits its first plan review to the Coachella Valley Water District. In the
event any such alterations are unavoidable, Developer acknowledges that City cannot guarantee
that the altered connections will be available to Developer at the time the Boutique Hotel is
completed and opened.
400. DEVELOPMENT AGREEMENT; RESORT RETAIL VILLAGE PARCEL GROUND
LEASE
The City of La Quinta and Developer have entered into or will enter into, concurrently
herewith, the Development Agreement. hi the event Agency elects, in Agency's sole and
absolute discretion, to convey the Resort Retail Village Parcel to City, the parties contemplate
that City will enter into with Developer the Resort Retail Village Parcel Ground Lease, pursuant
to which City will subsequently lease to Developer such Parcel. hi the event Agency elects, in
Agency's sole and absolute discretion, to retain the fee interest in and to such Parcel, Developer
and Agency contemplate entering into the Resort Retail Village Parcel Ground Lease, and
Agency contemplates assigning its interests in said lease to City. As set forth herein, in the
Development Agreement, and in the Resort Retail Village Parcel Ground Lease (if applicable),
Developer shall be required to construct and operate on the Resort Retail Village Parcel the
Resort Retail Village Development. Any default of Developer under the Resort Retail Village
Parcel Ground Lease or under the Development Agreement which has not been cured within the
applicable cure period shall be deemed a Default hereunder, and shall give rise to all of Agency's
remedies set forth herein.
Notwithstanding anything herein to the contrary, the Resort Retail Village Parcel Lease,
if entered, shall have the following terms:
401. Term. The term of the Resort Retail Village Parcel Lease shall be fifty-five (55)
years.
402. Rent Schedule. The rent schedule for the Resort Retail Village Parcel is attached
hereto and incorporated herein as Attachment No. 15.
403. No Assi ng ment. The Developer may not assign its interest in the Resort Retail
Village Parcel Lease until the Agency issues a Release of Construction Covenants for the Resort
Retail Village Development.
404. Permitted Uses. The Developer shall use the Resort Retail Village Parcel only for
the uses and purposes permitted pursuant to the Specific Plan and pursuant to any applicable Site
Development Permit.
500. USE AND OPERATION OF THE PROPERTY
Operation of the Project. Developer shall enter into the necessary agreements to ensure
that DHR shall initially manage and operate the Phases of Development developed on the
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Boutique Hotel Parcel, the Resort Hotel Parcel, the Lake Casitas Parcel, the Golf Casitas Parcel,
and the Ranch Villas Parcel all in accordance with the requirements of this Section 500.
Notwithstanding anything herein to the contrary, until the Management Transfer Release Date
for each Phase of Development that includes Units, DHR or a successor entity authorized
pursuant to Section 703.2 (DHR or such permitted successor entity, an "Authorized Manager")
shall retain full management and operational control over all components of such Phase of
Development. The Authorized Manager of the hotel and Units to be developed on the Resort
Hotel Parcel shall also be the Authorized Manager for the Units to be developed on the Golf
Casitas Parcel and the Lake Casitas Parcel. The Authorized Manager of the hotel and Units to be
developed on the Boutique Hotel Parcel shall also be the Authorized Manager for the Units to be
developed on the Ranch Villas Parcel, regardless of whether the Boutique Hotel Parcel is
subsequently subdivided into two or more Parcels. Developer, on behalf of itself and any
Authorized Manager, covenants and agrees that each of the Phases of Development that include
Units shall, upon its completion, be operated in a Four Star Quality condition until the twentieth
(20a') anniversary of the date the Agency issues a Release of Construction Covenants for such
Phase of Development. No more than once per year after completion of any of the Phases of
Development that include Units, the Agency may select an independent consultant (the
"Performance Consultant") to perform a quality audit of such Phase(s) of Development for
purposes of determining that the applicable Phase of Development is operating at a Four Star
Quality (the "Performance Audit'). The then -owner of the applicable Phase of Development
(the "Phase of Development Owner") shall reimburse the Agency for the reasonable costs of the
Performance Audit. In the event that the Performance Audit concludes that the Phase of
Development is not operating at a Four Star Quality, the Phase of Development Owner shall pay
to the Agency the sum of One Thousand Dollars ($1,000) per day, as liquidated damages (the
"Performance Default Amount'), for each day that passes until the items noted in the
Performance Audit have been corrected, as determined by the Performance Consultant. All of
the costs and fees charged by the Performance Consultant for any follow-up inspections shall be
paid by the Phase of Development Owner.
LIQUIDATED DAMAGES. IF THE PERFORMANCE AUDIT CONCLUDES THAT A
PHASE OF DEVELOPMENT IS NOT OPERATING AT A FOUR STAR QUALITY,
THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, AGENCY AND DEVELOPER AGREE THAT
AGENCY WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT BY
DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, WHICH DAMAGES
SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE,
TO ASCERTAIN. AGENCY AND DEVELOPER, IN A REASONABLE EFFORT TO
ASCERTAIN WHAT AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH
DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, HAVE
AGREED BY PLACING THEIR INITIALS BELOW, THAT CONSIDERING ALL OF
THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT,
INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO
AGENCY THAT REASONABLY COULD BE ANTICIPATED, AND THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR
INCONVENIENT, THE PERFORMANCE DEFAULT AMOUNT SHALL BE DEEMED
TO CONSTITUTE A REASONABLE ESTIMATE OF AGENCY'S DAMAGES UNDER
THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CODE OF CIVIL
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PROCEDURE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN THE EVENT OF AND FOR SUCH DEFAULT BY DEVELOPER OR
DEVELOPER'S SUCCESSOR IN INTEREST, THE PHASE OF DEVELOPMENT
OWNER SHALL BE REQUIRED TO PAY TO AGENCY THE PERFORMANCE
DEFAULT AMOUNT AS LIQUIDATED DAMAGES AND AS AGENCY'S SOLE
DAMAGE REMEDY AGAINST THE PHASE OF DEVELOPMENT OWNER FOR A
DEFAULT UNDER THIS SECTION 500; PROVIDED, HOWEVER, THAT AGENCY
RETAINS AND RESERVES THE RIGHT TO EXERCISE ANY OTHER LEGAL OR
EQUITABLE REMEDIES AVAILABLE TO AGENCY HEREUNDER, INCLUDING,
WITHOUT LIMITATION, THE RIGHT TO BRING AN ACTION FOR SPECIFIC
PERFORMANCE. AGENCY AND DEVELOPER SPECIFICALLY ACKNOWLEDGE
THIS LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURES BELOW:
AGENCY
DEVELOPER
Notwithstanding anything herein to the contrary, the Phase of Development Owner shall
not be required to pay to Agency the liquidated damages required hereunder if the Phase of
Development Owner is obligated to pay the City liquidated damages in the same amount as
required hereunder pursuant to the Development Agreement or the applicable City Declaration of
CC&Rs.
501. Use in Accordance with Redevelopment Plan.
501.1 The Developer covenants and agrees for itself, its successors, assigns, and
every successor in interest to the Property or any part thereof, that upon the Developer's
acquisition of the Property and during construction and operation of the Project, and thereafter,
the Developer shall devote the Property to the uses specified in the Redevelopment Plan and this
Agreement for the term of the land use controls of the Redevelopment Plan.
501.2 All uses conducted on the Property, including, without limitation, all
activities undertaken by the Developer pursuant to this Agreement, shall conform to the
Redevelopment Plan and all applicable provisions of the City Municipal Code. The foregoing
covenants shall run with the land until the expiration of the land use controls of the
Redevelopment Plan.
502. Maintenance Covenants. The Developer shall maintain the Property and all
improvements thereon, including all landscaping, in a first class condition, and in compliance
with the terms of the Redevelopment Plan, and all applicable provisions of the City Municipal
Code.
503. Nondiscrimination Covenants. The 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 account of race, color, creed, religion, sex, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, or any part thereof, nor shall the Developer itself or any person claiming under or
through it 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. The foregoing covenants shall run with the land.
The Developer shall refrain from restricting the rental, sale or lease of the Property or
portion thereof on the basis of race, color, 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:
(a) 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 race, color, creed, religion, sex, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the 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 in the land herein conveyed. The foregoing covenants shall run with the land".
(b) 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 race, color, creed, religion, sex, marital status,
national origin, or ancestry 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".
(c) In contracts relating to the disposition of the realty: "There shall
be no discrimination against or segregation of, any person, or group of persons on account of
race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee
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, subtenants, sublessees or vendees of the
premises".
504. Effect of Violation of the Terms and Provisions of this Agreement After
Completion of Construction. The Agency is deemed the beneficiary of the terms and provisions
of this Agreement and of the covenants running with the land, for and in its own right, without
regard to whether the Agency has been, remains or is an owner of any land or interest therein in
the Property or the Project Area. The Agency shall have the right, if this Agreement or the
covenants herein are breached, to exercise all rights and remedies, and to maintain any actions or
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suits at law or in equity or other proper proceedings to enforce the curing of such breaches and to
avail itself of the rights granted herein to which it may be entitled, except as may be otherwise
set forth in this Agreement. The covenants contained in this Agreement shall not benefit or be
enforceable by any owner of any other real property within or outside the Project Area, or any
person or entity having an interest in such other real property. The covenants contained in this
Agreement shall remain in effect for the periods described herein, specifically including, without
limitation, the following:
(a) The environmental covenants set forth in Sections 207.3, 207.4,
and 207.5 shall remain in effect in perpetuity.
(b) The covenants pertaining to use of the Property which are set forth
in Section 503 shall remain in effect until the expiration of the land use controls of the
Redevelopment Plan.
(c) The covenants pertaining to maintenance of the Property, and all
improvements thereon, as set forth in Section 502 and in Section 504, shall remain in effect until
the expiration of the land use controls of the Redevelopment Plan.
(d) The covenants against discrimination, as set forth in Section 505,
shall remain in effect in perpetuity.
(e) The indemnity obligations, as set forth in Section 307 hereof, shall
remain in effect for the time period set forth in Section 307.
(f) The indemnity obligations, as set forth in Section 207.5 and in
Section 307.1 hereof, shall remain in effect in perpetuity.
505. Representations and Warranties.
505.1 Agency Representations. Agency represents and warrants to Developer as
follows:
(a) Authori . Agency is a public body, corporate and politic, existing
pursuant to the California Community Redevelopment Law (California Health and Safety Code
Section 33000), which has been authorized to transact business pursuant to action of the City.
Agency has full right, power and lawful authority to acquire, grant, sell and convey the Property
as provided herein, and the execution, performance and delivery of this Agreement by Agency
has been fully authorized by all requisite actions on the part of Agency.
(b) FIRPTA. Agency is not a "foreign person" within the parameters
of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any
similar state statute, or has complied and will comply with all the requirements under FIRPTA or
any similar state statute.
(c) No Conflict. To the Agency's best knowledge, Agency's
execution, delivery and performance of its obligations under this Agreement will not constitute a
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default or a breach under any contract, agreement or order to which Agency is a party or by
which it is bound.
(d) Conformance with Redevelopment Plan. The development and
use of the Project as required hereunder is in conformance with the Redevelopment Plan.
Until the Closing for any of the Parcels, Agency shall, upon learning of any fact or
condition which would cause any of the warranties and representations in this Section 507.1 not
to be true as of the respective Closing, immediately give written notice of such fact or condition
to Developer. Such exception(s) to a representation shall not be deemed a breach by Agency
hereunder, but shall constitute an exception which Developer shall have a right to approve or
disapprove. If Developer elects to close the applicable Escrow following disclosure of such
information, Agency's representations and warranties contained herein shall be deemed to have
been made as of the applicable Closing, subject to such exception(s). If, following the disclosure
of such information, Developer elects to not close the applicable Escrow, then this Agreement as
to the applicable Escrow shall automatically terminate, Developer shall be reimbursed the
theretofore undisbursed balance of any deposits made into Escrow, and neither party shall have
any further rights, obligations or liabilities hereunder; provided, however, that in the event the
Initial Escrow closes, a failure to close any subsequent Escrow shall not terminate this
Agreement. In the event the Initial Escrow fails to close, this Agreement shall automatically
terminate and neither party shall have any further rights or obligations hereunder, except that
both parties agree to take whatever actions are reasonably necessary to terminate any other
agreements that may have been executed in furtherance hereof. The representations and
warranties set forth in this Section 507.1 shall survive each of the real estate Closings provided
for herein.
505.2 Developer's Representations. Developer represents and warrants to
Agency as follows:
(a) Authori . Developer is a duly organized limited liability company
formed within and in good standing under the laws of the State of Delaware. Developer has full
right, power and lawful authority to purchase and accept the conveyance of each of the Parcels,
and to undertake all obligations as provided herein and the execution, performance and delivery
of this Agreement by Developer has been fully authorized by all requisite actions on the part of
the Developer.
(b) Experience. The Developer is experienced in the development of
the type of commercial projects which would satisfy the development requirements set forth
herein.
(c) No Conflict. To the best of Developer's knowledge, Developer's
execution, delivery and performance of its obligations under this Agreement will not constitute a
default or a breach under any contract, agreement or order to which the Developer is a party or
by which it is bound.
(d) No Developer Bankruptcy. Developer is not the subject of a
current or pending bankruptcy proceeding.
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Until the Closing for any of the Parcels, Developer shall, upon learning of any fact or
condition which would cause any of the warranties and representations in this Section 507.2 not
to be true as of the respective Closing, immediately give written notice of such fact or condition
to Agency. Such exception(s) to a representation shall not be deemed a breach by Developer
hereunder, but shall constitute an exception which Agency shall have a right to approve or
disapprove. If Agency elects to close the applicable Escrow following disclosure of such
information, Developer's representations and warranties contained herein shall be deemed to
have been made as of the applicable Closing, subject to such exception(s). If, following the
disclosure of such information, Agency elects to not close the applicable Escrow, then this
Agreement as to the applicable Escrow shall automatically terminate, and neither party shall
have any further rights, obligations or liabilities hereunder; provided, however, that in the event
the Initial Escrow closes, a failure to close any subsequent Escrow shall not terminate this
Agreement. In the event the Initial Escrow fails to close, this Agreement shall automatically
terminate and neither party shall have any further rights or obligations hereunder, except that
both parties agree to take whatever actions are reasonably required to terminate any other
agreements that may have been executed in furtherance hereof. The representations and
warranties set forth in this Section 507.2 shall survive each of the real estate closings provided
for herein.
600. DEFAULTS AND REMEDIES
601. Default Remedies. Subject to the extensions of time set forth in Section 702 of
this Agreement, failure by either party to perform any action or covenant required by this
Agreement within the time periods provided herein following notice and failure to cure as
described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default
shall give written notice of Default to the other party specifying the Default complained of.
Except as otherwise expressly provided in this Agreement, the claimant shall not institute any
proceeding against any other party, and the other party shall not be in Default if such party cures
such default within thirty (30) days from receipt of such notice, or if the nature of such default is
that it cannot reasonably be expected to be cured within such thirty (30) day period, if such party,
with due diligence, commences to cure, correct or remedy such failure or delay within thirty (30)
days from receipt of such notice, and completes such cure, correction or remedy with diligence.
602. Institution of Legal Actions. In addition to any other rights or remedies and
subject to the restrictions otherwise set forth in this Agreement, either party may institute an
action at law or equity to seek specific performance of the terms of this Agreement, or to cure,
correct or remedy any Default, or to obtain any other remedy consistent with the purpose of this
Agreement. Agency shall also have the right to pursue damages for Developer's defaults.
Notwithstanding the foregoing, however, in no event shall the Developer be entitled to damages
of any kind from Agency, including damages for economic loss, lost profits, or any other losses
or consequential damages of any kind. Such legal actions must be instituted in the Superior
Court of the County of Riverside, State of California, in an appropriate municipal court in that
county, or in the District of the United States District Court in which such county is located.
603. Termination Prior to the Close of the Initial Escrow.
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603.1 Termination by Developer. In the event that prior to the close of the
Initial Escrow (a) one or more of the Developer's Conditions Precedent to the Closing for the
Initial Escrow is not fulfilled on or before the time set forth in the Schedule of Performance and
such failure is not caused by the Developer, (b) any default of the Agency under this Agreement
prior to the close of the Initial Escrow is not cured within the time set forth in Section 601
hereof, after written demand by the Developer, (c) the Developer timely disapproves the
environmental condition of the Property pursuant to Section 207 hereof, or (d) Developer
reasonably determines that development of the Project would not be compatible with the other
development within the Parcel Map, then this Agreement may, at the option of the Developer, be
terminated by written Notice thereof to the Agency. From the date of the written Notice of
termination of this Agreement by the Developer to the Agency and thereafter this Agreement
shall be deemed terminated and there shall be no further rights or obligations between the parties
with respect to the Property, or any portion thereof, by virtue of or with respect to this
Agreement. Upon termination as a result of clause (b) above or as a result of Developer's failure
to obtain City's approval of plans that are consistent with this Agreement and with the Specific
Plan, after diligent efforts by Developer to so obtain, any then-undisbursed amounts deposited
into Escrow by Developer shall be paid to Developer.
603.2 Termination by Aeencv. In the event that prior to the close of the Initial
Escrow (a) the Developer (or any successor in interest) assigns this Agreement or any rights
herein or in any of the Parcels in violation of this Agreement, or assigns the Development
Agreement or any rights therein; or (b) one or more of the Agency's Conditions Precedent to the
Closing is not fulfilled on or before the Outside Date for Closing (as it may be extended) and
such failure is not caused by the Agency; or (c) the Developer is otherwise in default of this
Agreement and fails to cure such default within the time set forth in Section 601 hereof, after
written demand by the Agency; or (d) the Developer is the subject of a bankruptcy proceeding,
whether voluntarily or involuntarily commenced, then this Agreement shall, at the option of the
Agency, be terminated by the Agency by written Notice thereof to the Developer. From the date
of the written Notice of termination of this Agreement by the Agency to the Developer and
thereafter this Agreement shall be deemed terminated and there shall be no further rights or
obligations between the parties, except that Agency shall be entitled to retain all then-
undisbursed portions of the Deposit Payments and shall have any and all rights available to the
Agency as set forth in Section 605, Section 606, and Section 607 hereof.
604. Termination Prior to Subsequent Parcel Conveyance.
604.1 Termination by the Developer. In the event that, after the close of the
Initial Escrow but prior to the close of any subsequent Escrow (a) one or more of the
Developer's Conditions Precedent to the Closing for the applicable Escrow is not fulfilled on or
before the time set forth in the Schedule of Performance and such failure is not caused by the
Developer, (b) any default of the Agency under this Agreement prior to the Closing is not cured
within the time set forth in Section 601 hereof, after written demand by the Developer, or (c)
Developer reasonably determines that development of the Project would not be compatible with
the other development within the Parcel Map, then this Agreement with respect to that Escrow
and all contemplated subsequent Escrows (if any) may, at the option of the Developer, be
terminated by written Notice thereof to the Agency. From the date of the written Notice of
termination of this Agreement by the Developer to the Agency, this Agreement shall be deemed
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terminated with respect to such Escrow and there shall be no further rights or obligations
between the parties with respect to said Parcel(s) by virtue of or with respect to this Agreement.
Upon termination as a result of clause (b) above or as a result of Developer's failure to obtain
City's approval of plans that are consistent with this Agreement and with the Specific Plan, after
diligent efforts by Developer to so obtain, any then-undisbursed portions of the Deposit
Payments shall be paid to Developer.
604.2 Termination by the Agencv. In the event that, after the close of the Initial
Escrow but prior to the close of any subsequent Escrow (a) the Developer (or any successor in
interest) assigns this Agreement or any rights herein or in the applicable Parcel(s) in violation of
this Agreement, or assigns the Development Agreement or any rights therein; or (b) one or more
of the Agency's Conditions Precedent to the Closing for the applicable Escrow is not fulfilled on
or before the applicable Outside Date for Closing (as it may be extended) and such failure is not
caused by the Agency; or (c) the Developer is otherwise in default of this Agreement and fails to
cure such default within the time set forth in Section 601 hereof, after written demand by the
Agency; or (d) the Developer is the subject of a bankruptcy proceeding, whether voluntarily or
involuntarily commenced, then this Agreement with respect to that Escrow and all contemplated
subsequent Escrows (if any) shall, at the option of the Agency, be terminated by the Agency by
written Notice thereof to the Developer. From the date of the written Notice of termination of
this Agreement by the Agency to the Developer, this Agreement with respect to such Escrow(s)
shall be deemed terminated and there shall be no further rights or obligations between the parties
with respect to said Parcel(s) by virtue of or with respect to this Agreement.
605. Agency Option to Acquire Plans. If, at any time after the close of the Initial
Escrow this Agreement is terminated by the Agency as a result of a default by the Developer, at
the option of the Agency and without any additional consideration, which option may be
exercised in the Agency's sole and absolute discretion, the Developer shall deliver to the Agency
an executed assignment in a form reasonably acceptable to the Agency of the Developer's right
to use all plans, blueprints, drawings, sketches, specifications, tentative or final subdivision
maps, landscape plans, utilities plans, soils reports, noise studies, environmental assessment
reports, grading plans and any other materials relating to the construction of the Project on the
Property (the "Plans"), together with copies of all of the Plans, as have been prepared for the
development of the Project to date of the termination. Notwithstanding the foregoing, however,
Developer does not covenant to convey to the Agency the copyright or other ownership rights of
third parties. Agency understands and agrees that the assignment to Agency under this Section
605 is subject and subordinate to any assignment which Developer may make to a lender
providing financing for the project, and Agency agrees to execute any documents required by
such lender acknowledging and effectuating such subordination of Agency's rights in and to the
assignment. Agency's acquisition or use of the Plans or any of them shall be without any
representation or warranty by Developer as to the accuracy or completeness of any such Plans,
and Agency shall assume all risks in the use of the Plans.
606. Option n Agreement. In addition to any other rights and remedies available to
Agency hereunder, Agency shall be entitled, in its sole and absolute discretion, to repurchase the
Property, or any Parcel, with all of the improvements thereon, from Developer in the event that,
(i) Developer fails to commence construction of a Phase of Development within certain specified
timeframes, (ii) after commencement of construction, Developer fails to continuously proceed
F.
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with, and complete, construction of a Phase of Development within certain specified timeframes,
or (iii) Developer transfers or suffers an involuntary transfer of the Property, or a portion thereof,
in violation of the terms hereof. Said repurchase rights shall be as set forth in an option
agreement to be recorded at each Closing, against the applicable Parcel. The form of the Option
Agreement is attached hereto and incorporated herein as Attachment No.7 ("Option
Agreement').
607. Rinht to Reverter and Power of Termination. In addition to any other rights and
remedies available to Agency hereunder, Agency shall be entitled, in its sole and absolute
discretion, to reenter and take possession of the Property, or any Parcel, subject to all liens and
other matters of record, with all of the improvements thereon, from Developer in the event that
(i) Developer fails to commence construction of a Phase of Development within certain specified
timeframes, (ii) after commencement of construction, Developer fails to continuously proceed
with and complete, construction of the Phase of Development within certain, specified
timeframes, or (iii) Developer transfers or suffers an involuntary transfer of the Property, or a
portion thereof, in violation of the terms hereof. Said rights shall be as set forth in each Grant
Deed pursuant to which Agency shall convey a Parcel to Developer.
608. Acceptance of Service of Process. In the event that any legal action is
commenced by the Developer against the Agency, service of process on the Agency shall be
made by personal service upon the Executive Director of the Agency or in such other manner as
may be provided by law. In the event that any legal action is commenced by the Agency against
the Developer, service of process on the Developer shall be made by personal service upon any
officer of the Developer, whether made within or outside the State of California, or in such other
manner as may be provided by law.
609. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties 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.
610. Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver of any
Default or of any such rights or remedies, or deprive either such party of its right to institute and
maintain any actions or proceedings which it may deem necessary to protect, assert or enforce
any such rights or remedies.
611. Applicable Law. The internal laws of the State of California shall govern the
interpretation and enforcement of this Agreement, without regard to conflict of law principles.
612. Non -Liability of Officials and Employees of the Agency. No member, official or
employee of the Agency or the City shall be personally liable to the Developer, or any successor
in interest, in the event of any Default or breach by the Agency (or the City) or for any amount
which may become due to the Developer or its successors, or on any obligations under the terms
of this Agreement.
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613. Attorneys' Fees. In any action between the parties to interpret, enforce, reform,
modify, rescind, or otherwise in connection with any of the terms or provisions of this
Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive
relief, or any other relief to which it might be entitled, reasonable costs and expenses including,
without limitation, litigation costs, reasonable attorneys' fees and expert witness fees.
700. GENERAL PROVISIONS
701. Notices Demands and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice ("Notice") which either party may desire to give
to the other party under this Agreement must be in writing and may be given by any
commercially acceptable means to the party to whom the Notice is directed at the address of the
party as set forth below, or at any other address as that party may later designate by Notice.
To Agency: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Phone No.: 760-777-7031
Facsimile No.: 760-777-7101
Attention: Assistant Executive Director
With a copy to: Rutan & Tucker, LLP
611 Anton, Suite 1400
P.O. Box 1950
Costa Mesa, California 92628
Phone No.: 714-641-5100
Facsimile No.: 714-546-9035
Attention: M. Katherine Jenson, Esq.
To Developer: LDD SilverRock, LLC
74-001 Reserve Drive
Indian Wells, California 92210
Phone No.: 760-674-2200
Facsimile No.: 760-779-1469
Attention: Theodore R. Lennon, Jr.
With a copy to: Manatt, Phelps & Phillips, LLP
11355 W. Olympic Boulevard
Los Angeles, California 90064
Phone No.: 310-312-4217
Facsimile No.: 310-312-4224
Attention: Timi A. Hallem
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and to:
Lowe Enterprises, Inc.
11777 San Vicente Blvd., Suite 900
Los Angeles, California 90049
Attn: Corporate Counsel
Phone No.: 310-820-6661
Facsimile No.: 310-820-8131
Any written notice, demand or communication shall be deemed received upon
delivery if delivered by hand, including by reputable delivery service providing a receipt with the
date and time of delivery, and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mail.
702. Enforced Delay' Extension of Times of Performance. hi addition to specific
provisions of this Agreement, performance by either party hereunder shall not be deemed to be in
Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to causes beyond the control or without the fault of the party
claiming an extension of time to perform, which may include the following: war; insurrection;
acts of terrorism; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts
of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority; litigation; unusually severe weather;
inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or
supplier; acts or omissions of the other party; or acts or failures to act of the City or any other
public or governmental agency or entity (other than the acts or failures to act of the Agency
which shall not excuse performance by the Agency). Notwithstanding anything to the contrary in
this Agreement, an extension of time for any such cause shall be for the period of the enforced
delay and shall commence to run from the time of the commencement of the cause, if notice by
the party claiming such extension is sent to the other party within thirty (30) days of the
commencement of the cause. Times of performance under this Agreement may also be extended
in writing by the mutual agreement of Agency and Developer. Notwithstanding any provision of
this Agreement to the contrary, the lack of funding to commence or complete the Project or any
Phase of Development shall not constitute grounds of enforced delay pursuant to this Section
702.
703. Transfers of Interest in Property Agreement or Management. The qualifications
and identity of the Developer as the developer and DHR as the operator of high quality
commercial resort developments are of particular concern to the Agency. Furthermore, the
parties acknowledge that the Agency has negotiated the terms of this Agreement in
contemplation of the development and operation of the Project on the Property and the property
tax increment and Transient Occupancy Tax revenues to be generated by the operation of the
Project on the Property.
703.1 Transfers of Interest in Property or Agreement Prior to Agency's Issuance
of a Release of Construction Covenants. Except as provided in this Section 703.1, until the date
the Agency issues a Release of Construction Covenants for a particular Phase of Development
.. E
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(the "Fee Transfer Release Date'), (1) no voluntary successor in interest of the Developer shall
acquire any rights or powers under this Agreement with respect to said Phase of Development;
(2) the Developer shall not make any total or partial sale, transfer, conveyance, assignment, or
lease of the whole or any part of the applicable Parcel or the Phase of Development thereon; and
(3) no changes shall occur with respect to the ownership and/or control of Developer or of Lowe
Enterprises, including, without limitation, stock transfers, sales of issuances, or transfers, sales or
issuances of membership or ownership interests, or statutory conversions (any of the above, a
"Transfer"). Prior to the Fee Transfer Release Date for a particular Phase of Development, the
Agency may approve or disapprove a proposed Transfer in its sole and absolute discretion.
Notwithstanding the foregoing, Agency approval of a Transfer prior to the Fee
Transfer Release Date for a particular Phase of Development shall not be required in
connection with any of the following:
a. The conveyance or dedication of any portion of the Property to an
appropriate governmental agency, or the granting of easements or permits to facilitate
construction of the Project.
b. Any assignment for financing purposes (subject to such financing being
permitted pursuant to Section 311 of this Agreement), including the grant of a deed of
trust to secure the funds necessary for land acquisition, construction and permanent
financing of the Project or of a Phase of Development.
C. The Transfer by Developer to an entity whose managing member,
manager, or managing general partner is Developer or an entity in which Lowe
Enterprises owns and controls at least fifty-one percent (51 %), and has day-to-day control
of the development of the Phase of Development.
d. The sale by Developer of Condominium Hotel Units to third party buyers.
e. The sale, transfer or issuance of stock or membership interests of Lowe
Enterprises so long as a minimum of fifty-one percent (51%) of the outstanding and
voting stock, membership and/or ownership interests of Lowe Enterprises, and control of
Lowe Enterprises, is held, directly or indirectly, by Robert J. Lowe or his estate or a
member of his family. ,
703.2 Transfers of Operational Obligations. Notwithstanding anything in
Section 703.1 to the contrary, until the tenth (10th) anniversary of the date the Agency issues a
Release of Construction Covenants for each Phase of Development (the "Management Transfer
Release Date"), (i) neither Developer nor DHR (or any permitted successor in interest) shall
make any Transfer of the operational and/or managerial control, including, but not limited to,
financial and managerial decisionmaking, of such Phase of Development; and (ii) no changes
shall occur with respect to the ownership and/or control of DHR, or of Lowe Enterprises,
including, without limitation, stock transfers, sales of issuances, or transfers, sales or issuances of
membership or ownership interests, or statutory conversions (either of the above, a
"Management Transfer") without the prior written approval of the Agency; provided, however,
that transfers of the stock, ownership and/or membership interests of DHR or of Lowe
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ITMM
Enterprises may be made so long as a minimum of fifty-one percent (51%) of the outstanding
and voting stock, ownership, and/or membership interests of DHR and of Lowe Enterprises is
held, directly or indirectly, by Robert J. Lowe or his estate or a member of his family.
Notwithstanding the foregoing, Agency approval shall not be required for a Management
Transfer to any of the entities listed on Attachment No. 15, which is attached hereto and
incorporated herein by this reference; provided, however, that if any of the entities on
Attachment No. 14 operate under a "flag" name, the flag shall be a flag that operates at a Four
Star Quality. To the extent that the operating character or quality of any of the entities listed on
Attachment No. 14 substantially changes between the Effective Date and the date of the
proposed Management Transfer, Developer or Developer's successor in interest shall
demonstrate that the listed entity satisfies the requirements for transferee entities not listed on
Attachment No. 14, as outlined below in this Section 703.2. No Management Transfer or
Transfers, individually or collectively, shall be made that results in different entities operating
and managing the hotels and Units on the Resort Hotel Parcel, the Lakes Casitas Parcel, and the
Golf Casitas Parcel and no Management Transfer or Transfers, individually or collectively, shall
be made that results in different entities operating and managing the hotels and Units on the
Boutique Hotel Parcel, regardless of whether the Boutique Hotel Parcel is subdivided into two or
more legal parcels, and the Ranch Villas Parcel. Agency shall not unreasonably withhold, delay,
or condition approval of a proposed Management Transfer to an entity that is not listed on
Attachment No. 14, provided that Developer or Developer's successor in interest demonstrates
that the proposed operator has experience and reputation for operating luxury hotels at a Four
Star Quality equivalent to the experience and reputation of DHR, Rosewood Hotels and Resorts,
Vail Resorts, Inc., Loews Corporation, and Kimpton Hotel and Restaurant Group, LLC.
Developer or Developer's successor in interest shall provide such information as may reasonably
requested by the Agency to enable the Agency to review and approve (or disapprove) any
proposed operator, and shall reimburse the Agency for the Agency's costs incurred in
considering any such request.
703.3 Assignment and Assumption of Obligations. Except for the sale of
individual Condominium Hotel Units, any Transfer by Developer of any interest in the Property
or of any interest in this Agreement and all Management Transfers shall require the execution of
an assignment and assumption of obligations in a form reasonably acceptable to the Agency's
counsel. Transfers of Developer's rights and/or obligations under this Agreement made without
an Agency -approved assignment and assumption agreement are null and void. This requirement
shall apply regardless of whether Agency approval is required for the Transfer. Developer
agrees that at least thirty (30) days prior to such Transfer it shall give written notice to Agency of
such assignment and satisfactory evidence that the assignee has assumed in writing through an
assignment and assumption agreement all applicable obligations under this Agreement. A party
proposing to assign its obligations under this Agreement (i) shall remain liable for the obligations
until and unless the Agency has received a fully executed assignment and assumption agreement
in the form approved by the Agency's counsel, and (ii) shall remain liable for any default
hereunder that occurred prior to the effective date of the assignment. Developer or Developer's
successor in interest shall reimburse the Agency for any costs (other than staff time) the Agency
incurs in reviewing any assignment and assumption agreement required hereunder.
703.4 Successors and Assigns. All of the terms, covenants and conditions of this
Agreement shall be binding upon the Developer and its permitted successors and assigns.
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Whenever the term "Developer" is used in this Agreement, such term shall include any other
permitted successors and assigns as herein provided, and the term "Developer shall only mean
the owner of a Phase of Development from time to time during the period of such entity's
ownership, provided that the procedures set forth in this Agreement for that entity's acquisition
and or disposition.
703.5 Assignment by Agency. The Agency may assign or transfer any of its
rights or obligations under this Agreement with the approval of the Developer, which approval
shall not be unreasonably withheld; provided, however, that the Agency may assign or transfer
any of its interests hereunder to the City or to a joint powers authority in which Agency or the
City is a member at any time without the consent of the Developer.
704. Relationship Between Agency and Developer. It is hereby acknowledged that the
relationship between the Agency and the Developer is not that of a partnership or joint venture
and that the Agency and the Developer shall not be deemed or construed for any purpose to be
the agent of the other. Accordingly, except as expressly provided herein or in the Attachments
hereto, the Agency shall have no rights, powers, duties or obligations with respect to the
development, operation, maintenance or management of the Project.
705. Agency Approvals and Actions. The Agency shall maintain authority of this
Agreement and the authority to implement this Agreement through the Agency Executive
Director (or his duly authorized representative). Any reference to the Agency Executive Director
herein shall be deemed to include such authorized representative. The Agency Executive
Director, or his or her designee, shall have the authority to make approvals, issue interpretations,
waive provisions, and/or enter into amendments of this Agreement on behalf of the Agency so
long as such actions do not materially or substantially change the uses or development permitted
on the Property, or materially or substantially add to the costs incurred or to be incurred by the
Agency as specified herein, and such approvals, interpretations, waivers and/or amendments may
include extensions of time to perform as specified in the Schedule of Performance. All other
material and/or substantial interpretations, waivers, or amendments shall require the
consideration, action and written consent of the Agency Board.
706. Counterparts. This Agreement may be signed in multiple counterparts which,
when signed by all parties, shall constitute a binding agreement. This Agreement is executed in
two (2) originals, each of which is deemed to be an original.
707. Integration. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated by this Agreement, notwithstanding any previous
negotiations or agreements between the parties or their predecessors in interest with respect to all
or any part of the subject matter hereof. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged in this Agreement
and shall be of no further force or effect. Each party is entering this Agreement based solely
upon the representations set forth herein and upon each party's own independent investigation of
any and all facts such parry deems material. This Agreement includes Attachment Nos. 1 through
11, which are incorporated herein.
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708. Real Estate Brokerage Commission. The Agency and the Developer each
represent and warrant to the other that no broker or finder is entitled to any commission or
finder's fee in connection with the Developer's acquisition of the Property from the Agency. The
parties agree to defend and hold harmless the other party from any claim to any such commission
or fee from any other broker, agent or finder with respect to this Agreement which is payable by
such party as a result of the actions of the indemnifying party.
709. Titles and Captions. Titles and captions are for convenience of reference only and
do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
Reference to section numbers are to sections in this Agreement, unless expressly stated
otherwise.
710. Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation". This Agreement shall be interpreted as though prepared jointly by both
parties.
711. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to be performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or other covenants, agreements,
restrictions or conditions of this Agreement.
712. Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made in writing and in each instance signed on behalf of each
party. Developer shall be required to reimburse Agency for all costs Agency incurs in
negotiating, preparing, and processing any such alterations, changes, or modifications. In
connection with any request for an alteration, change or modification, Developer shall deposit
with the Agency the sum of Ten Thousand Dollars ($10,000). Notwithstanding the foregoing,
Agency's Executive Director shall have the discretion to authorize a lesser deposit, in the event
he or she determines the proposed alteration, change or modification is minor. In the event the
funds on deposit are depleted, Agency shall notify Developer of the same, and Developer shall
deposit with the Agency an additional Five Thousand Dollars ($5,000) to complete processing of
the requested alteration, change or modification. Developer shall make additional deposits to
Agency, as needed, pursuant to the foregoing process, until the requested alteration, change, or
modification is finalized. Within sixty (60) days after such alteration, change or modification is
finalized, Agency shall reimburse the Developer any unused sums.
713. Severability. If any term, provision, condition or covenant of this Agreement or
its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
714. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and including
n�
0
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the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also
excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of
the California Government Code. If any act is to be done by a particular time during the day, that
time shall be Pacific Time Zone time.
715. Legal Advice. Each party represents and warrants to the other the following: they
have carefully read this Agreement, and in signing this Agreement, they do so with full
knowledge of any right which they may have; they have received independent legal advice from
their respective legal counsel as to the matters set forth in this Agreement, or have knowingly
chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have
freely signed this Agreement without any reliance upon any agreement, promise, statement or
representation by or on behalf of the other party, or their respective agents, employees, or
attorneys, except as specifically set forth in this Agreement, and without duress or coercion,
whether economic or otherwise.
716. Time of Essence. Time is expressly made of the essence with respect to the
performance by the Agency and the Developer of each and every obligation and condition of this
Agreement.
717. Cooperation. Each party agrees to cooperate with the other in this transaction
and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or
appropriate to carry out the purposes and intent of this Agreement including, but not limited to,
releases or additional agreements.
718. Conflicts of Interest. No member, official or employee of the Agency shall have
any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or
employee participate in any decision relating to the Agreement which affects his personal
interests or the interests of any corporation, partnership or association in which he is directly or
indirectly interested.
719. Time for Acceptance of Agreement by Agency. This Agreement, when executed
by the Developer and delivered to the Agency, must be authorized, executed and delivered by the
Agency on or before forty-five (45) days after signing and delivery of this Agreement by the
Developer or this Agreement shall be void, except to the extent that the Developer shall consent
in writing to a further extension of time for the authorization, execution and delivery of this
Agreement.
[signatures on next page]
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IN WITNESS WHEREOF, the Agency and the Developer have executed this
Disposition and Development Agreement as of the date set forth above.
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. Katherine Jenson
Agency Counsel
AGENCY:
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
0
Executive Director
DEVELOPER:
LDD SILVERROCK, LLC,
a Delaware limited liability company
am
Its:
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ATTACHMENT NO.1
PROPERTY LEGAL DESCRIPTION
[To be Inserted]
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ATTACHMENT NO.2
SITE MAP
[To be Inserted]
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ATTACHMENT NO.3
PURCHASE PRICE
Parcel Purchase Price
Boutique Hotel Parcel $3,309,600
Ranch Villas Parcel $585,000
Parcel
Initial Purchase Price
Resort Hotel Parcel
$3,930,000
Black Box Parcel
$156,000
Resort Retail Village Parcel
$2,069,971
Golf Casitas Parcel
$1,726,000
Lake Casitas Parcel
$764,000
The Purchase Price for each of the Golf Casitas Parcel, Lake Casitas Parcel, Resort Hotel
Parcel, Resort Retail Village Parcel (if sold to Developer), and Black Box Parcel shall be
determined in the following manner: On or before the third anniversary of the Effective Date of
the DDA, and on or before the close of each subsequent three (3) year period until all Parcels
have been sold and conveyed to Developer, Developer and Agency shall select an appraiser
reasonably acceptable to both parties and commission an updated appraisal reflecting the fair
market value of any of the Parcels that have not, as of said date, been sold to Developer (each, an
"Appraisal"). Except as provided below, Agency shall be responsible for all of the costs
associated with each of said Appraisals. The Purchase Price for each Parcel (except the Boutique
Hotel Parcel and the Ranch Villas Parcel) shall be the fair market value of the Parcel, as set forth
in the most recent Appraisal. Subject to the following sentence, the Purchase Price for the
Boutique Hotel Parcel and for the Ranch Villas Parcel shall be as set forth above.
Notwithstanding anything herein to the contrary, in the event any of the Parcels, including,
without limitation, the Boutique Hotel Parcel and the Ranch Villas Parcel, are sold to Developer
within three (3) years after the Effective Date, and the acreage of the Parcel, as indicated by the
final and recorded Parcel Map, differs from the acreage set forth herein, then the Purchase Price
for said Parcel shall be recalculated, based on the following price per acre:
(i) Two Hundred Forty Thousand Dollars ($240,000) per acre for the Boutique Hotel
Parcel;
(ii) Two Hundred Forty Thousand Seven Hundred Forty -One Dollars ($240,741) per
acre for the Ranch Villas Parcel;
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DRAFT
(iii) Two Hundred Thousand Dollars ($200,000) per acre for the Lake Casitas Parcel,
Golf Casitas Parcel, Resort Hotel Parcel, and Black Box Parcel; and
(iv) One Hundred Seventy -Four Thousand Two Hundred Forty Dollars ($174,240) per
acre for the Resort Retail Village Parcel.
Notwithstanding anything herein to the contrary, in the event Michael A. Scarcella is still
an MAI appraiser at the time of an Appraisal, Mr. Scarcella shall be retained to perform any
Appraisal required hereunder. hi the event Michael A. Scarcella is no longer an MAI appraiser
providing ,appraisal services at the time of an Appraisal or is not available to perform the
Appraisal, and Agency and Developer cannot agree on an appraiser, either Developer or Agency
may notify the other party, in writing, that they are invoking the following process, and such
process shall then apply: Developer shall select, and shall be responsible for all of the costs for,
an independent and qualified MAI appraiser to perform the Appraisal. Within five (5) business
days after Developer's receipt of the Appraisal, Developer shall deliver to Agency a copy
thereof. If Agency does not agree with Developer's Appraisal, Agency shall notify Developer in
writing within five (5) business days after receipt thereof. Within sixty (60) days thereafter, or
such additional time reasonably necessary for completion, Agency, at its cost, shall deliver to
Developer an Appraisal prepared by an independent and qualified MAI appraiser. If Developer's
Appraisal is higher than Agency's Appraisal, then Developer's Appraisal shall be used to
determine the Purchase Price for any Parcels not yet purchased. If Developer's Appraisal is
lower than Agency's Appraisal, but less than or equal to five percent (5%) lower, the average of
Developer's Appraisal and Agency's Appraisal shall be used to determine the Purchase Price of
any Parcels not yet purchased. If Developer's Appraisal is lower than Agency's Appraisal, and
is more than five percent (5%) lower, Agency and Developer shall appoint, and shall share the
cost of, a third independent and qualified MAI appraiser who shall perform a review Appraisal
and shall render a determination of the fair market value of the Parcels not yet purchased. If
Agency and Developer cannot agree on a third appraiser, then an amount equal to seventy-five
percent (75%) of the difference between Agency's Appraisal and Developer's Appraisal shall be
added to Developer's Appraisal and said amount shall be used to determine the Purchase Price of
any Parcels not yet purchased.
Notwithstanding anything herein to the contrary, the Purchase Price for the Resort Retail
Village Parcel shall be applicable only if said Parcel is sold in fee to Developer. If said Parcel is
instead leased to Developer, the leasehold payments shall be as set forth in the Resort Retail
Village Parcel Ground Lease.
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ATTACHMENT NO.4
FORM OF GRANT DEED
[See Following Pages]
21
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DRAFT
RECORDING REQUESTED BY,
MAIL TAX STATEMENTS TO
AND WHEN RECORDED MAIL TO:
LDD SilverRock, LLC
74-001 Reserve Drive
Indian Wells, California 92210
Attn- Theodore R. Lennon, Jr.
iocument is exempt from paymenr or a recuru,
fee pursuant to Government Code Section 273
GRANT DEED
(Parcel __)
For valuable consideration, receipt of which is hereby acknowledged,
The LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic
(the "Agency"), acting to cant' out the Redevelopment Plan ("Redevelopment Plan") for the
La Quinta Redevelopment Project Area No. 1 (the "Project Area"), under the Community
Redevelopment Law of California, hereby grants to LDD SILVERROCK, LLC, a Delaware
limited liability company ("Developer"), the real property hereinafter referred to as the "Parcel,"
described in Exhibit A attached hereto and incorporated herein, subject to the existing easements,
restrictions and covenants of record described there.
1. Reservation of Mineral Rights. Agency excepts and reserves from the
conveyance herein described all interest of the Agency in oil, gas, hydrocarbon substances and
minerals of every kind and character lying more than five hundred (500) feet below the surface,
together with the right to drill into, through, and to use and occupy all parts of the Parcel lying
more than five hundred (500) feet below the surface thereof for any and all purposes incidental to
the exploration for and production of oil, gas, hydrocarbon substances or minerals from said
Parcel or other lands, but without, however, any right to use either the surface of the Parcel or
any portion thereof within five hundred (500) feet of the surface for any purpose or purposes
whatsoever, or to use the Parcel in such a manner as to create a disturbance to the use or
enjoyment of the Parcel.
2. Parcel Conveyance in Accordance With Redevelopment Plan, Disposition
and Development Agreement. The Parcel is conveyed in accordance with and subject to the
Redevelopment Plan for the La Quinta Redevelopment Project Area No. 1 ("Redevelopment
Plan") which was approved and adopted by Ordinance No. 43, on November 29, 1983, of the
City Council of the City of La Quinta, and a Disposition and Development Agreement entered
into between Agency and Developer dated , 2006 (the "DDA"), a copy of
which is on file with the Agency at its offices as a public record and which is incorporated herein
by reference. The DDA generally requires the Developer to construct and operate on the Parcel a
[Project Description] (the "Phase Development'), and other requirements as set forth therein.
All terms used herein shall have the same meaning as those used in the DDA.
3. Permitted Uses. The Developer covenants and agrees for itself, its successors, its
assigns, and every successor in interest to the Parcel or any part thereof, that upon the date of this
f
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Grant Deed ("Grant Deed") and during construction through completion of development and
thereafter, the Developer shall devote the Parcel to the uses specified in the Redevelopment Plan
for the periods of time specified therein. All uses conducted on the Parcel, including, without
limitation, all activities undertaken by the Developer pursuant to the DDA, shall conform to the
DDA, the Redevelopment Plan, and all applicable provisions of the City Municipal Code. The
foregoing covenants shall run with the land.
4. Restrictions on Transfer. The Developer further agrees that, except as permitted
or approved by the Agency pursuant to Section 703 of the DDA, (i) until the Developer obtains a
Release of Construction Covenants for the Phase of Development, no voluntary or involuntary
successor in interest of the Developer shall acquire any rights or powers under the DDA or this
Grant Deed, nor shall the Developer make any total or partial sale, transfer, conveyance,
assignment, subdivision, refinancing or lease of the whole or any part of the Parcel or the Phase
of Development thereon, and (ii) for a period of ten (10) years, commencing upon the date
Developer obtains a Release of Construction Covenants for the Phase of Development,
Developer shall retain full managerial and operational control of the Phase of Development.
5. Binding on Successors. All of the terms, covenants and conditions of this Grant
Deed shall be binding upon the Developer and the permitted successors and assigns of the
Developer. Whenever the term "Developer" is used in this Grant Deed, such term shall include
any other successors and assigns as herein provided.
6. Nondiscrimination. The Developer herein covenants by and for itself, its 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 race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
Developer itself or any person claiming under or through Developer, 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 in the land
herein conveyed. The foregoing covenants shall run with the land.
The Developer shall refrain from restricting the rental, sale or lease of the Parcel
on the basis of race, color, 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:
(a) 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 race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the 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 in the land herein conveyed. The foregoing covenants shall run with the land".
= E.
882/015610-0085 _'L_
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(b) 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 race, color, creed, religion, sex, marital status,
national origin, or ancestry 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".
(c) In contracts relating to the disposition of the realty: "There shall be no
discrimination against or segregation of, any person, or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee 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, subtenants, sublessees or vendees of the premises".
7. Agency's Right of Reverter and Power of Termination. The Agency has the
right, at its election, to reenter and take possession of the Parcel, with all improvements thereon,
and terminate and revest in the Agency the estate conveyed to the Developer, subject to all liens
and other matters of record, if after the closing and prior to the Agency's issuance of the Release
of Construction Covenants for the Phase of Development, the Developer (or its successors in
interest) shall:
a. fail to start construction of the Phase of Development as required
by the DDA for a period of ninety (90) days after written notice thereof from the Agency; or
b. abandon or substantially suspend construction of the Phase of
Development required by the DDA and fail to resume construction within ninety (90) days after
written notice thereof from the Agency; or
C. contrary to the provisions of Section 703 of the DDA Transfer or
suffer any involuntary Transfer in violation of the DDA, and such Transfer is not rescinded
within sixty (60) days of notice thereof from the Agency.
For purposes of this Grant Deed, the term "construction" shall mean excavation
work or physical construction, but shall not include any grading work completed by Developer
on the Parcel prior to the execution date hereof. Such right to reenter, terminate and revest shall
be subject to and be limited by, shall not defeat, render invalid or limit, and shall be subordinate
to:
1. Any mortgage or deed of trust permitted by the DDA; or
882/015610-0094 _3_
737414.05 a12/01/06
2. Any rights or interests provided in the DDA for the protection of
the holders of such mortgages or deeds of trust.
Upon the revesting in the Agency of title to the Parcel as provided in this Section 71 the Agency
shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Parcel
as soon and in such manner as the Agency shall find feasible and consistent with the objectives
of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and
responsible party or parties (as determined by the Agency) who will assume the obligation of
making or completing the Phase of Development, or such improvements in their stead as shall be
satisfactory to the Agency and in accordance with the uses specified for such Parcel or part
thereof in the Redevelopment Plan. Upon such resale of the Parcel, the net proceeds thereof after
repayment of any mortgage or deed of trust encumbering the Parcel which is permitted by the
DDA, shall be applied:
i. First, to reimburse the Agency, on its own behalf or on behalf of the City,
all costs and expenses incurred by the Agency, excluding City and Agency staff costs, but
specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the Parcel or part thereof (but less any
income derived by the Agency from the Parcel or part thereof in connection with such
management); all taxes, assessments and water or sewer charges with respect to the Parcel or part
thereof which the Developer has not paid; any payments made or necessary to be made to
discharge any encumbrances or liens existing on the Parcel or part thereof at the time or
revesting of title thereto in the Agency, or to discharge or prevent from attaching or being made
any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its
successors or transferees; any expenditures made or obligations incurred with respect to the
making or completion of the improvements or any part thereof on the Parcel, or part thereof; and
any amounts otherwise owing the Agency, and in the event additional proceeds are thereafter
available, then
ii. Second, to reimburse the Developer, its successor or transferee, up to the
amount equal to the sum of (a) the costs incurred by Developer for the acquisition and
development of the Parcel and for the improvements existing on the Parcel at the time of the
reentry and possession, less (b) any gains or income withdrawn or made by the Developer from
the Parcel or the improvements thereon.
Any balance remaining after such reimbursements shall be retained by the Agency as its
property. The rights established in this Section 7 are not intended to be exclusive of any other
right, power or remedy, but each and every such right, power, and remedy shall be cumulative
and concurrent and shall be in addition to any other right, power and remedy authorized herein or
now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact
that the Agency will have conveyed the Parcel to the Developer for redevelopment purposes,
particularly for development of the Phase of Development, and not for speculation in
undeveloped land.
8. Violations Do Not Impair Liens. No violation or breach of the covenants,
conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or
882/015610-0084 _4_
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L"
render invalid or in any way impair the lien or charge of any mortgage or deed of trust or
security interest permitted by Section 703 of the DDA.
9. Covenants Run With Land. All covenants contained in this Grant Deed shall be
covenants running with the land. All of Developer's obligations hereunder, except as otherwise
provided hereunder, shall terminate and shall become null and void upon the expiration of the
effectiveness of the Redevelopment Plan. Every covenant contained in this Grant Deed against
discrimination contained in paragraph 6 of this Grant Deed shall remain in effect in perpetuity.
10. Covenants For Benefit of Agency. All covenants without regard to technical
classification or designation shall be binding for the benefit of the Agency, and such covenants
shall run in favor of the Agency for the entire period during which such covenants shall be in
force and effect, without regard to whether the Agency is or remains an owner of any land or
interest therein to which such covenants relate. The Agency, in the event of any breach of any
such covenants, shall have the right to exercise all the rights and remedies and to maintain any
actions at law or suits in equity or other proper proceedings to enforce the curing of such breach.
The covenants contained in this Grant Deed, without regard to technical classification, shall not
benefit or be enforceable by any owner of any other real property within or outside the Project
Area, or any person or entity having any interest in any other such realty.
11. Amendments to Redevelopment Plan. No amendment to the Redevelopment
Plan shall require the consent of the Developer, but no such amendment shall diminish or restrict
the Developer's rights or expand the Developer's obligations hereunder or under the DDA
without the Developer's consent, except as required by State law.
AGENCY:
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
Date: By.
Executive Director
ATTEST:
Secretary of the Agency
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. Katherine Jenson
Agency Counsel
882/015610-0064 _5_
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� IM
Date:
DEVELOPER:
LDD SILVERROCK, LLC,
a Delaware limited liability company
0
Its:
882/015610-0084 6 '
737414.05 a12/01/06
AMI
STATE OF CALIFORNIA )
) ss
COUNTY OF
On
a Notary Public, personally appeared
before me,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF
On
a Notary Public, personally appeared
Notary Public
before me,
personally known to me (or proved to me on the basis of satisfactory evidence) to oe me
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF PARCEL
[TO BE INSERTED]
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DRAFT
ATTACHMENT NO.5
SCOPE OF DEVELOPMENT
L GENERAL SUMMARY
This document outlines the general requirements for the improvements to be constructed
on the Property. Specific details are addressed in the SilverRock Specific Plan 2006-080, as
amended by Resolution No. 2006-083, which was duly adopted by the City Council on July 18,
2006 ("Specific Plan"), and in the construction plans that will be prepared for the development.
The Property is identified as APN , located at the southwest intersection of Jefferson
Street and Avenue 52 in the City of La Quinta, and is approximately 58.97 acres in size. The
Specific Plan provides for the development of a commercial development project that contains
all of the following: a luxury boutique hotel and related amenities, a resort hotel and related
amenities, resort -style condominium/casitas units, two parking structures, and a resort retail
village. The Specific Plan sets forth the maximum number of Units that may be developed in (i)
the Boutique Hotel, (ii) the Ranch Villas Development, and (iii) the Resort Hotel, Golf Casitas
Development, and Lake Casitas Development. Notwithstanding that this Agreement does not set
forth a "minimum" number of Units that must be developed in each Phase of Development,
Developer acknowledges that the Agency's intent in entering into this Agreement is to achieve
the maximum number of Units that may be designed and developed pursuant to the Specific Plan
in each Phase of Development.
H. PROJECT COMPONENTS
A. Boutique Hotel
The Boutique Hotel shall be a Four Star Quality or higher luxury hotel with expanded
amenities, a high level of service and a unique architectural theme. The Boutique Hotel shall
provide an exceptional and personalized level of accommodation, services, and facilities.
Facilities shall be designed for short-term stay and shall include a management program to
encourage rental of any Condominium Hotel Units when not in use by their owners. The
Boutique Hotel shall contain not more than 225 Units. All Units in the Boutique Hotel may be
sold as Condominium Hotel Units. All Units will have full access to resort amenities and
services. A minimum of 35 of the Units shall have a Lock -Off Feature.
The public spaces in the Boutique Hotel, including restrooms, restaurants and meeting
spaces, shall be furnished with upgraded materials such as granite, marble, specialty lighting, and
custom millwork. Distinctive and authentic architectural details such as clay tile, iron gates,
fountains, and pavers shall be included throughout. Lobby areas shall feature elegant live plants
and floral displays.
Services offered shall include, but are not limited to, on -site sales efforts that solicit
and/or serve group meetings, turndown service, room service, laundry service, personalized
wake up calls, concierge and bell services, secure luggage storage facilities, and covered valet
parking.
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Amenities shall include at least one signature dining restaurant with minimum seating for
80 indoor and 40 outdoor, a well appointed lounge/bar with minimum seating for 40, guest
registration lobby of at least 1,500 square feet, a first-class spa and fitness facility of at least
8,000 square feet (sf), at least one fully amenitized pool offering food service and cabanas, and at
least 10,000 sf of interior meeting space. A highly upgraded Presidential Suite shall also be
included of at least 2,500 sf. Landscaping shall include distinctive entry water features, use of
fountains throughout, and substantial landscaping material. Hardscape materials shall include
tumbled pavers and tile in courtyard areas. At least 50 percent of required parking shall be
provided in covered or trellised parking areas. At least 150 parking spaces shall be included in a
parking structure to be developed on -site.
When not in use by the owners, all Units (except Fractional Units) in the Boutique Hotel
shall be offered for rental as a part of the Boutique Hotel. Such rental may be offered by the
owner of the Unit, a third party rental agent or an agent affiliated with the operator of the
Boutique Hotel. All use of all of the Units in the Boutique Hotel, including by the owners
thereof, shall be through the Boutique Hotel front desk check -in and check-out procedure, using
electronic keys controlled by the operator of the Boutique Hotel. The operator shall have the
ability to book all unbooked Units (except Fractional Units) as demand dictates within 2 weeks
of the date being requested, and may charge a booking fee for such bookings.
All Units in the Boutique Hotel shall be finished with upgraded materials such as stone,
wood, and tile flooring, upgraded carpet and pad, granite or tile counters, tile and/or marble
baths, decorative wood beam ceilings where applicable, flat screen televisions, LodgeNet or
equal services, 2 telephones, kitchenette with top -of -the -line or equal appliances, custom
fireplaces in some units, luxurious bedding, and top-quality furnishings, uniformity of
units/furnishings.
B. Ranch Villas Development
The Ranch Villas Development shall contain approximately fifty (50) Units, and
all of such Units shall have a Lock -Off Feature. All Units in the Ranch Villas Development may
be sold as Condominium Hotel Units. Resort pool area(s) shall be provided for the Units in the
Ranch Villas Development. No pools shall be owned by an individual Unit.
When not in use by the owners, all Units (except Fractional Units) in the Ranch
Villas Development shall be offered for rental as a part of the Boutique Hotel. Such rental may
be offered by the owner of the Unit, a third party rental agent or an agent affiliated with the
operator of the Boutique Hotel. All use of all of the Units in the Ranch Villas Development,
including by the owners thereof, shall be through the Boutique Hotel front desk check -in and
check-out procedure, using electronic keys controlled by the operator of the Boutique Hotel. The
operator shall have the ability to book all unbooked Units (except Fractional Units) as demand
dictates within 2 weeks of the date being requested, and may charge a booking fee for such
bookings.
All Units in the Ranch Villas Development are to be finished with upgraded
materials such as stone, wood, and tile flooring, upgraded carpet and pad, granite or tile counters,
tile and/or marble baths, decorative wood beam ceilings where applicable, flat screen televisions,
882/015610-0084 -2-
737414.05 a12/01/06
LodgeNet or equal services, 2 telephones, kitchenette with top -of -the -line appliances, custom
fireplaces in some Units, luxurious bedding, and top quality furnishings.
C. Resort Hotel/Golf Casitas Development/Lake Casitas Development
1. Resort Hotel
The Resort Hotel shall be a Four -Star Quality or higher luxury hotel with
expanded resort amenities, specifically designed to create a single source location for guests to
enjoy their stay. The Resort Hotel shall contain at least ninety (90) Hotel Units that are owned
and operated by Developer or an entity authorized or approved by the Agency pursuant to
Section 703.
The public spaces in the Resort Hotel, including restrooms, restaurants and
meeting spaces shall be furnished with upgraded materials such as granite, marble, specialty
lighting, and custom millwork. Distinctive and authentic architectural details consistent with the
resort theme shall be included throughout. Lobby areas shall be expansive and shall feature
elegant live plants, floral displays, and outstanding views.
Services offered shall include, but are not limited to, on -site sales efforts that
solicit and/or serve group meetings, turndown service, room service, laundry service,
personalized wake up calls, pool services, activities center, kids clubs, excursions, concierge and
bell services, secure luggage storage facilities, and covered valet parking.
Amenities shall include at least one signature dining restaurant with minimum
seating for 80 indoor and 30 outdoor, a well appointed lounge/bar with seating for a minimum of
40, a three -meal dining option seating at least 100 indoor and 60 outdoor, guest registration
lobby of at least 3,500 sf, a first-class spa and fitness facility of at least 12,000 sf, a kids club and
teen center of at least 2,500 sf, at least two fully amenitized resort pools offering food service,
cabanas and swim areas for children, one adult pool, and at least 20,000 sf of interior meeting
space. Landscaping shall include distinctive entry features, use of themed elements, and mature
landscaping material. At least 30 percent of the required parking shall be provided in covered or
trellised parking areas. At least 150 parking spaces shall be provided in a parking structure to be
developed on -site.
All Units are to be finished with upgraded materials such as stone, wood, and tile
flooring, upgraded carpet and pad, granite or tile counters, tile and/or marble baths, decorative
wood beam ceilings where applicable, flat screen televisions, LodgeNet or equal services, 2
telephones, kitchenette with top -of -the -line appliances, custom fireplaces in some units,
luxurious bedding, and top quality furnishings.
2. Lake Casitas Development and Golf Casitas Development
The Lake Casitas Development shall contain approximately fifty (50) Units; the
Golf Casitas Development shall contain approximately 72 Units; and all of such Units shall have
a Lock -Off Feature. All Units in the Lake Casitas Development and in the Golf Casitas
Development may be sold as Condominium Hotel Units. Resort pool area(s) shall be provided
882/015610-0084 -3-
737414.05 al2/01/06
for the Units in the Lake Casitas Development and for the Units in the Golf Casitas
Development. No pools shall be owned by an individual Unit.
When not in use by the owners, all Units (except Fractional Units) in the Lake
Casitas Development and in the Golf Casitas Development shall be offered for rental as a part of
the Resort Hotel. Such rental may be offered by the owner of the Unit, a third party rental agent
or an agent affiliated with the operator of the Resort Hotel. All use of all of the Units in the Lake
Casitas Development and in the Golf Casitas Development, including by the owners thereof,
shall be through the Resort Hotel front desk check -in and check-out procedure, using electronic
keys controlled by the operator of the Resort Hotel. The operator shall have the ability to book
all unbooked Units (except Fractional Units) as demand dictates within 2 weeks of the date being
requested, and may charge a booking fee for such bookings.
All Units in the Lake Casitas Development and in the Golf Casitas Development
are to be finished with upgraded materials such as stone, wood, and tile flooring, upgraded carpet
and pad, granite or tile counters, tile and/or marble baths, decorative wood beam ceilings where
applicable, flat screen televisions, LodgeNet or equal services, 2 telephones, kitchenette with
top -of -the -line appliances, custom fireplaces in some Units, luxurious bedding, and top quality
furnishings.
3. Unit/Lock-Off Feature Requirements.
The Resort Hotel, Golf Casitas Development, and Lake Casitas Development,
collectively, shall contain not more than 405 Units, and at least 115 of such Units shall have a
Lock -Off Feature.
4. Fractional Units.
Up to 30% of all Units which are developed, other than those which must be
retained as Hotel Units, may be sold as Fractional Units, of which no more than ten percent
(10%) of the aggregate number of Fractional Units may be developed within the main building
of the Resort Hotel.
D. Resort Retail Village Development
The Resort Retail Village Development shall consist of specialty retail development
intended to provide a variety of additional retail, restaurant, and entertainment options to hotel
guests and members of the local community. This mixed -use village may also include resort -
oriented office, live -work loft units, and multi -family residential units.
The design of the Resort Retail Village Development shall be complimentary to the
Resort Hotel, the Golf Casitas Development and the Lake Casitas Development in terms of both
quality and aesthetics. Pedestrian access shall be designed to encourage a seamless flow
between resort accommodations and resort retail village.
Tenants permitted in the Resort Retail Village Development shall include, but not be
limited to, themed or signature national presence restaurants, local and national retailers, banks,
882/015610-0084 -4-
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general store, brokerage, art galleries, gourmet market and resort -oriented offices. Other uses
may be approved in writing by the Director of Community Development
III. DEVELOPMENT CONCEPT
The Property shall be improved by the Developer in accordance with the provisions of
this Agreement, the Specific Plan, and all applicable codes, ordinances, and statutes including
requirements and procedures set forth in the La Quinta Municipal Code, and the Redevelopment
Plan regulations adopted in conjunction with or subsequent to execution of this Agreement.
IV. ON -SITE DEVELOPMENT AND IMPROVEMENTS
Developer shall prepare such plans, reports, and studies, and obtain such permits and
approvals as required, including, but not limited to, grading plans for construction of the Project.
Plans shall be prepared by a licensed civil engineer in good standing and subject to the approval
of the Director of Public Works.
Developer shall grant and permit all necessary and appropriate utility easements and
rights for the development of the Project, including but not limited to sanitary sewers, storm
drains, water, electrical power, telecommunications, natural gas, cable television, etc.
V. LANDSCAPING
Developer shall be responsible to fully landscape the Project in accordance with the
Specific Plan and landscape plans approved by the City.
VI. ON -SITE INFRASTRUCTURE IMPROVEMENTS
Developer shall be responsible for the construction of all on -site infrastructure
improvements that may be identified per the Specific Plan including, but not limited to, all
required internal utilities. All such construction shall be done to City standards. Additionally,
Developer shall be responsible for obtaining and delivering to the City such bonds or other
improvement security as City may require in accordance with applicable law, including but not
limited to payment and performance bonds.
VIL DEVELOPMENT STANDARDS
All development on the Property shall conform to the development standards set forth in the
Specific Plan, and other applicable City codes and development standards.
882/015610-0084
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DRAFT
ATTACHMENT NO.6
DEVELOPMENT AGREEMENT
[See following Document # 750537]
882/015610-0084
737414.05 a12/01/06
6
DRAFT
ATTACHMENT NO.7
FORM OF OPTION AGREEMENT
[See following Document # ]
882/015610-0084
737414.05 a12/01/06
DRAFT
ATTACHMENT NO.8
RELEASE OF CONSTRUCTION COVENANTS
[See Following Pages]
882/015610-0084
737414.05 a12/01/06
DRAFT
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
LDD SilverRock, LLC
74-001 Reserve Drive
Indian Wells, CA 92210
Attn: Theodore R. Lennon, Jr.
This document is exempt from the payment of a recording
fee pursuant to Government Code Section 27383
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release") is made by
the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the
"Agency"), in favor of LDD SILVERROCY, LLC, a Delaware limited liability company (the
"Developer"), as of
RECITALS
A. The Agency and the Developer have entered into that certain Disposition and
Development Agreement (the "DDA") dated , 2006 concerning the
redevelopment of certain real property situated in the City of La Quinta, California, a portion of
which is more fully described in Exhibit "A" attached hereto and made a part hereof (the
"Property").
B. As referenced in Section 310 of the DDA, the Agency is required to furnish the
Developer or its successors with a Release of Construction Covenants upon Developer's
completion of construction of the
[Insert applicable Phase of Development,
as that term is described in Section 100 of the DDA] (as defined in Section 100 of the DDA),
which Release is required to be in such form as to permit it to be recorded in the Recorder's
office of Riverside County. This Release is conclusive determination of satisfactory completion
of the construction and development required by the DDA.
C. The Agency has conclusively determined that such construction and development
has been satisfactorily completed.
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The
[Insert applicable Phase of Development, as that
term is described in Section 100 of the DDA]to be constructed by the Developer has been fully
and satisfactorily completed in conformance with the DDA. Any operating requirements and all
use, maintenance or nondiscrimination covenants contained in the DDA and other documents
executed and recorded pursuant to the DDA shall remain in effect and enforceable according to
their terms.
4
�i j
862/015610-00&t
737414.05 a12/01/06
DRAFT
2. This Release of Construction Covenants does not constitute evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or
any insurer of a mortgage security money loaned to finance the work of construction if
improvements and development of the Property, or any part hereof.
3. This Release of Construction Covenants does not denote completion of any work
required to be completed, other than on the Property.
4. This Release of Construction Covenants is not a notice of completion as referred
to in Section 3093 of the California Civil Code.
5. Nothing contained in this instrument shall modify in any other way any other
provisions of the DDA.
982/015610-0084 _2_
737414.05 a17101/06
DRAFT
IN WITNESS WHEREOF, the Agency has executed this Release as of the date set
forth above.
ATTEST:
Agency Secretary
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
Its:
APPROVED BY DEVELOPER:
LDD SILVERROCK, LLC,
a Delaware limited liability company
M
Its:
882/015610-0094 _3_
737414.05 .12/01/06
DRAFT
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
[TO BE ATTACHED]
F
882/015610-0094 _4_
737414.05 a@/01/06
DRAFT
STATE OF CALIFORNIA )
) ss
COUNTY OF
On
a Notary Public, personally appeared
before me,
personally known to me (or proved to me on the basis of satistactory eviaence) to De LIM
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA )
ss
COUNTY OF )
On
a Notary Public, personally appeared
Notary Public
before me,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0084 _5_
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DRAFT
ATTACHMENT NO.9
SCHEDULE OF PERFORMANCE
[See attached individual schedules for each of the (i) Boutique Hotel,
(ii) Ranch Villas Development, (iii) Resort Hotel, (iv) Resort Retail
Village Development, (v) Black Box, (vi) Lake Casitas Development, and
(vi) Golf Casitas Development]
This Schedule of Performance describes each of the Ranch Villas Development, Resort Retail
Village Development, Black Box, Lake Casitas Development, and Golf Casitas Development as
constructed in a single phase. In the event Developer desires to construct the foregoing Phases
of Development in more than one phase, Developer shall submit to the Executive Director and
obtain his or her approval of, a Phasing Plan.
1 All days are calendar days in this Schedule of Performance.
882/015610-0084
737414.05 a12/01/06
DRAFT
SCHEDULE OF PERFORMANCE FOR
BOUTIQUE HOTEL
982/015610-0084
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DRAFT
SCHEDULE OF PERFORMANCE FOR
BOUTIQUE HOTEL
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Prior to Agency's approval of final draft.
2.
Developer and Agency open Escrow.
Within 10 days after Effective Date.
3.
Developer's submission of complete Site
Within 4 months after Effective Date of DDA.
Development Permit Application "SDPA",
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Preliminary Grading Plan
4.
Review of SDPA by all applicable City*
Agency will use reasonable efforts to cause such
departments.
review within 45 days after Developer's submission of
SDPA.
5.
Agency response to Developer as to City
Within 14 days after receipt of final comments from
comments on SDPA.
city.
6.
Developer and City responses.
Developer will respond to any request within 14 days
and Agency will use reasonable efforts to cause City
to respond to any submission within 14 days.
7.
Agency publishes Notice of Public Hearing
Within 10 days after Developer responds to all of
for SDPA before the Planning
City's comments in the preceding section.
Commission.
8.
Planning Commission Public Hearing and
Approximately 10 days after publication.
consideration of SDPA.
9.
City Council Public Hearing and
Approximately 30 days after approval by Planning
consideration of SDPA
Commission.
10.
City's issuance of SDPA and conditions.
Within 7 da s after approval by City Council.
11.
Developer's preparation of final grading
Within 180 days after City's issuance of SDPA.
plans and Design/Construction
Development Drawings for Boutique
Hotel.
12.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the
Design/Construction Development Drawings for
Boutique Hotel.
Boutique Hotel.
13.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence of
conditions, or denial of Developer's
financing.
evidence of financing for Boutique Hotel.
14.
Review of final grading plans and
Agency will use reasonable efforts to cause such
Design/Construction Development
review within 45 days after Developer's submittal.
Drawings by all applicable City*
departments.
882/015610-0084
737414 05 al2/01/06
DRAFT
Item of Performance
Time for Completion
15.
Developer conducts its inspections of
Not later than 30 days prior to scheduled date for
physical and environmental condition of
Closing.
property and procures commercial general
insurance.
16.
_jjLbj[ity
Agency response to Developer as to City
Within 7 days after receipt of final comments from
comments on final grading plans and
City.
Design/Construction Development
Drawings.
17.
Developer and City responses.
Developer will respond to any request within 15 days
and Agency will use reasonable efforts to cause City
to respond to any submittal within 7 days.
18.
Developer obtains bids for construction of
Within 1 month after City approves final grading
the Boutique Hotel.
plans and Design/Construction Development
Drawin s.
19.
Developer and Agency execute and deposit
Three (3) days prior to the scheduled Closing Date.
into escrow the City Declaration of
CC&Rs, Option Agreement, Grant Deed,
Water Agreement, Maintenance
Agreement, Memorandum of DDA, and all
additional funds and documents required
under this Agreement in order to close the
Escrow, including the closing costs for
which each party is responsible to pa.
20.
Developer deposits into Escrow the
Three (3) days prior to the scheduled Closing Date.
Purchase Price for the Boutique Hotel
Parcel.
21.
Escrow closes and Developer acquires fee
After completion of Items 1-20 and the satisfaction or
title to Boutique Hotel Parcel.
waiver of all of Agency's Conditions Precedent to the
Closing and Developer's Conditions Precedent to the
Closing, but in no event later than the date that is 20
months after the Effective Date; provided, however,
that (i) the Executive Director of the Agency may
extend such date by up to six (6) additional months,
pursuant to Section 202.5, and (ii) if the Agency's or
City's review time in any of the foregoing Items
exceeds the time allotted for such review, then such
date shall automatically be extended by the number of
days by which the Agency or City exceeded its
allotted time.
22.
Developer pulls grading permit for
Within 15 days after Close of Escrow.
Boutique Hotel and commences Eading
23.
Developer pulls building permit for
Within 15 days after Close of Escrow.
Boutique Hotel and commences building.
24.
Developer commences construction of
Within 60 days after Close of Escrow.
Bouti ue Hotel.
882/015610-0084 _ 5 3737414.05 al2/01/06 _2
DRAFT
Item of Performance
Time for Completion
25.
Developer submits Developer CC&Rs to
Within 90 days prior to anticipated date for City's
Agency for approval.
issuance of first temporary or final certificate of
occul)ancy for Boutique Hotel.
26.
Agency reviews Developer CC&Rs.
Within 30 days after submittal.
27.
Developer's completion of Phase One of
Within 24 months after commencement of
Boutique Hotel.
construction for Boutique Hotel.
28.
Developer's completion of Boutique Hotel.
Within 36 months after commencement of
construction for Boutique Hotel.
* Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
882/015610-OO8-t -3-
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DRAFT
SCHEDULE OF PERFORMANCE FOR
RANCH VILLAS DEVELOPMENT
882/0I5610-008-t
737414.05 ai2/01/06
DRAFT
SCHEDULE OF PERFORMANCE FOR
RANCH VILLAS DEVELOPMENT
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Prior to Agency's approval of final draft.
2.
Developer and Agency open Escrow.
Within 10 days after Effective Date.
3.
Developer's submission of complete Site
Within 4 months after Effective Date of DDA.
Development Permit Application "SDPA",
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Prelimiriml Grading Plan
4.
Review of SDPA by all applicable City*
Agency will use reasonable efforts to cause such
departments.
review within 45 days after Developer's submission of
SDPA.
5.
Agency response to Developer as to City
Within 14 days after receipt of final comments from
comments on SDPA.
city.
6.
Developer and City responses.
Developer will respond to any request within 14 days
and Agency will use reasonable efforts to cause City
to respond to an submission within 14 days.
7.
Agency publishes Notice of Public Hearing
Within 10 days after Developer responds to all of
for SDPA before the Planning
City's comments in the preceding section.
Commission.
8.
Planning Commission Public Hearing and
Approximately 10 days after publication.
consideration of SDPA.
9.
City Council Public Hearing and
Approximately 30 days after approval by Planning
consideration of SDPA
Commission.
10.
City's issuance of SDPA and conditions.
Within 7 days after approval by Ci Council.
11.
Developer's preparation of final grading
Within 180 days after City's issuance of SDPA.
plans and Design/Construction
Development Drawings for Ranch Villas
Develo ment.
12.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the Ranch
Design/Construction Development Drawings for
Villas Develo ment.
Ranch Villas Development.
13.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence of
conditions, or denial of Developer's
financing.
evidence of financing for Ranch Villas
Develo ment.
14.
Review of final grading plans and
Agency will use reasonable efforts to cause such
Design/Construction Development
review within 45 days after Developer's submittal.
Drawings by all applicable City*
departments.
892/015610-0084 _2_
737414.05 al2/01/06
DRAFT
Item of Performance
Time for Completion
15.
Developer conducts its inspections of
Not later than 30 days prior to scheduled date for
physical and environmental condition of
Closing.
property and procures commercial general
liability insurance.
16.
Agency response to Developer as to City
Within 7 days after receipt of final comments from
comments on final grading plans and
City.
Design/Construction Development
Drawin s.
17.
Developer and City responses.
Developer will respond to any request within 15 days
and Agency will use reasonable efforts to cause City
to respond to any submittal within 7 days.
18.
Developer obtains bids for construction of
Within 1 month after City approves final grading
the Ranch Villas Development.
plans and Design/Construction Development
Drawings.
19.
Developer and Agency execute and deposit
Three (3) days prior to the scheduled Closing Date.
into escrow the City Declaration of
CC&Rs, Option Agreement, Grant Deed,
Water Agreement, Maintenance
Agreement, Memorandum of DDA, and all
additional funds and documents required
under this Agreement in order to close the
Escrow, including the closing costs for
which each party is responsible to pa.
20.
Developer deposits into Escrow the
Three (3) days prior to the scheduled Closing Date.
Purchase Price for the Ranch Villas
Development Parcel.
21.
Escrow closes and Developer acquires fee
After completion of Items 1-20 and the satisfaction or
title to Ranch Villas Development Parcel.
waiver of all of Agency's Conditions Precedent to the
Closing and Developer's Conditions Precedent to the
Closing, but in no event later than the date that is 20
months after the Effective Date; provided, however,
that (i) the Executive Director of the Agency may
extend such date by up to six (6) additional months,
pursuant to Section 202.5, and (ii) if the Agency's or
City's review time in any of the foregoing Items
exceeds the time allotted for such review, then such
date shall automatically be extended by the number of
days by which the Agency or City exceeded its
allotted time.
22.
Developer pulls grading permit for Ranch
Within 15 days after Close of Escrow.
Villas Development and commences
adin
23.
Developer pulls building permit for Ranch
Within 15 days after Close of Escrow.
Villas Development and commences
buildin .
24.
Developer commences construction of
�Wiithindays after Close of Escrow.
Ranch Villas Develo ment.
882/015610-0084 _3- �11 657
737414.05 al2/01/06
DRAFT
Item of Performance
Time for Completion
25.
Developer submits Developer CC&Rs to
Within 90 days prior to anticipated date for City's
Agency for approval.
issuance of temporary or final certificate of
occupancy.
26.
Agency reviews CC&Rs.
Within 30 days after submittal.
27.
Developer's completion of Phase One of
Within 24 months after commencement of
Ranch Villas Development.
construction for Ranch Villas Development.
28.
Developer's completion of Ranch Villas
Within 36 months after commencement of
Development.
construction for Ranch Villas Development.
* Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
882/015610-0084 _4_
737414.05 a12/01/06
o..
SCHEDULE OF PERFORMANCE FOR
RESORT HOTEL
882/015610-0084
737414 05 a12/01/06
DRAFT
SCHEDULE OF PERFORMANCE FOR
RESORT HOTEL
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Prior to Agency's approval of final draft.
2.
Developer and Agency open Escrow.
Within 10 days after the Effective Date.
3.
Developer's submission of complete Site
Within 8 months after Closing for Boutique Hotel
Development Permit Application "SDPA",
Parcel.
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Preliminary Grading Plan
4.
Review of SDPA by all applicable City*
Agency will use reasonable efforts to cause such
departments.
review within 45 days after Developer's submission of
SDPA.
5.
Agency response to Developer as to City
Within 14 days after receipt of final comments from
continents on SDPA.
city.
6.
Developer and City responses.
Developer will respond to any request within 14 days
and Agency will use reasonable efforts to cause City
to respond to any submission within 14 days.
7.
Agency publishes Notice of Public Hearing
Within 10 days after Developer responds to all of
for SDPA before the Planning
City's comments in the preceding section.
Commission.
8.
Planning Commission Public Hearing and
Approximately 10 days after publication.
consideration of SDPA.
9.
City Council Public Hearing and
Approximately 30 days after approval by Planning
consideration of SDPA
Commission.
10.
Ci 's issuance of SDPA and conditions.
Within 7 days after approval b CityCouncil.
11.
Developer's preparation of final grading
Within 240 days after City's issuance of SDPA.
plans and Design/Construction
Development Drawings for Resort Hotel.
12.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the Resort
Design/Construction Development Drawings for
Hotel.
Resort Hotel.
13.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence of
conditions, or denial of Developer's
financing.
evidence of financing for Resort Hotel.
14.
Review of final grading plans and
Agency will use reasonable efforts to cause such
Design/Construction Development
review within 45 days after Developer's submittal.
Drawings by all applicable City*
departments.
882/015610-0084
737414.05 a12/01/06
II AM
Item of Performance
Time for Completion
15.
Developer conducts its inspections of
Not later than 30 days prior to scheduled date for
physical and environmental condition of
Closing.
property and procures commercial general
liabilitv insurance.
16.
Agency response to Developer as to City
Within 7 days after receipt of final comments from
comments on final grading plans and
City.
Design/Construction Development
Drawin s.
17.
Developer and City responses.
Developer will respond to any request within 15 days
and Agency will use reasonable efforts to cause City
to respond to any submittal within 7 days.
18.
Developer obtains bids for construction of
Within 2 months after City approves final grading
the Resort Hotel.
plans and Design/Construction Development
Drawings.
19.
Developer and Agency execute and deposit
Three (3) days prior to the scheduled Closing Date.
into escrow the City Declaration of
CC&Rs, Option Agreement, Grant Deed,
Water Agreement, Maintenance
Agreement, and all additional funds and
documents required under this Agreement
in order to close the Escrow, including the
closing costs for which each party is
res onsible to a .
20.
Developer deposits into Escrow the
Three (3) days prior to the scheduled Closing Date.
Purchase Price for the Resort Hotel Parcel.
21.
Escrow closes and Developer acquires fee
After completion of Items 1-20 and the satisfaction or
title to Resort Hotel Parcel.
waiver of all of Agency's Conditions Precedent to the
Closing and Developer's Conditions Precedent to the
Closing, but in no event later than the date that is 30
months after the Closing for the Boutique Hotel
Parcel; provided, however, that (i) the Executive
Director of the Agency may extend such date by up to
six (6) additional months, pursuant to Section 202.5,
and (ii) if the Agency's or City's review time in any of
the foregoing Items exceeds the time allotted for such
review, then such date shall automatically be extended
by the number of days by which the Agency or City
exceeded its allotted time.
22.
Developer pulls grading permit for Resort
Within 15 days after Close of Escrow.
Hotel and commences gradin
23.
Developer pulls building permit for Resort
Within 15 days after Close of Escrow.
Hotel and commences buildin .
24.
Developer commences construction of
Within 60 days after Close of Escrow.
Resort Hotel.
882/015610-0084 -2-
737414.05 al2/01/06
Item of Performance
Time for Completion
25.
Developer submits Developer CC&Rs to
Within 90 days prior to anticipated date for City's
Agency for approval.
issuance of first temporary or final certificate of
occupancy for Resort Hotel.
26.
Agency reviews Developer CC&Rs.
Within 30 days after submittal.
27.
Developer's completion of Phase One of
Within 24 months after commencement of
Resort Hotel.
construction for Resort Hotel.
28.
Developer's completion of Phase One of
Within 36 months after commencement of
Resort Hotel.
construction for Resort Hotel.
29.
Developer's completion of Resort Hotel.
Within 36 months after commencement of
construction for Resort Hotel.
* Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
j0
882/015610-0084
737414.05 al2/01/06
SCHEDULE OF PERFORMANCE FOR
RESORT RETAIL VILLAGE DEVELOPMENT
'82/015610-0084
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DRAFT
SCHEDULE OF PERFORMANCE FOR
RESORT RETAIL VILLAGE DEVELOPMENT
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Prior to Agency's approval of final draft.
2.
Developer and Agency open Escrow.
Within 1Oda s after Effective Date.
3.
Developer's submission of complete Site
Within 8 months after Closing for Boutique Hotel
Development Permit Application "SDPA",
Parcel.
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Preliminary Grading Plan
4.
Review of SDPA by all applicable City*
Agency will use reasonable efforts to cause such
departments.
review within 45 days after Developer's submission of
SDPA.
5.
Agency response to Developer as to City
Within 14 days after receipt of final comments from
comments on SDPA.
city.
6.
Developer and City responses.
Developer will respond to any request within 14 days
and Agency will use reasonable efforts to cause City
to respond to any submission within 14 days.
7.
Agency publishes Notice of Public Hearing
Within 10 days after Developer responds to all of
for SDPA before the Planning
City's comments in the preceding section.
Commission.
8.
Planning Commission Public Hearing and
Approximately 10 days after publication.
consideration of SDPA.
9.
City Council Public Hearing and
Approximately 30 days after approval by Planning
consideration of SDPA.
Commission.
10.
City's issuance of SDPA and conditions.
Within 7 days after approval by Ci Council.
11.
Developer's preparation of final grading
Within 240 days after City's issuance of SDPA.
plans and Design/Construction
Development Drawings for Resort Retail
Village Development.
12.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete Resort
Design/Construction Development Drawings for
Retail Village Develo ment.
Resort Retail Village Development.
13.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence of
conditions, or denial of Developer's
financing.
evidence of financing for Resort Retail
Village Development.
14.
Review of final grading plans and
Agency will use reasonable efforts to cause such
Design/Construction Development
review within 45 days after Developer's submittal.
Drawings by all applicable City*
departments.
u�
682/015610-0084
737414.05 aIV(11106
DRAFT
Item of Performance
Time for Completion
15.
Developer conducts its inspections of
Not later than 30 days prior to scheduled date for
physical and environmental condition of
Closing.
property and procures commercial general
liability insurance.
16.
Agency response to Developer as to City
Within 7 days after receipt of final comments from
comments on final grading plans and
City.
Design/Construction Development
Drawin s.
17.
Developer and City responses.
Developer will respond to any request within 15 days
and Agency will use reasonable efforts to cause City
to respond to any submittal within 7 days.
18.
Developer obtains bids for construction of
Within 2 months after City approves final grading
the Resort Retail Village Development.
plans and Design/Construction Development
Drawings.
19.
Developer and Agency execute and deposit
Three (3) days prior to the scheduled Closing Date.
into escrow the Option Agreement, Grant
Deed, Water Agreement, Maintenance
Agreement, and all additional funds and
documents required under this Agreement
in order to close the Escrow, including the
closing costs for which each party is
responsible to pay.
20.
Developer deposits into Escrow the
Three (3) days prior to the scheduled Closing Date.
Purchase Price for the Resort Retail Village
Parcel.
21.
Escrow closes and Developer acquires fee
After completion of Items 1-20 and the satisfaction or
title to Resort Retail Village Parcel.
waiver of all of Agency's Conditions Precedent to the
Closing and Developer's Conditions Precedent to the
Closing, but in no event later than the date that is 30
months after the Closing for the Boutique Hotel
Parcel; provided, however, that (i) the Executive
Director of the Agency may extend such date by up to
six (6) additional months, pursuant to Section 202.5,
and (ii) if the Agency's or City's review time in any of
the foregoing Items exceeds the time allotted for such
review, then such date shall automatically be extended
by the number of days by which the Agency or City
exceeded its allotted time.
22.
Developer pulls grading permit for Resort
Within 15 days after Close of Escrow.
Retail Village Development and
commences grading
23.
Developer pulls building permit for Resort
Within 15 days after Close of Escrow.
Retail Village Development and
commences building.
24.
Developer commences construction of
TW7Ahi�6O a�after�ofrow.
Resort Retail Village Development.
882/015610-0084
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"tAM
Item of Performance Time for Completion
25, Developer's completion of Resort Retail Within 18 months after commencement of
Village Development. construction for Resort Retail Village Development.
• Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
6
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SCHEDULE OF PERFORMANCE FOR
BLACK BOX HOTEL
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w :.xw
SCHEDULE OF PERFORMANCE FOR
BLACK BOX HOTEL
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Prior to Agency's approval of final draft.
2.
Developer and Agency open Escrow.
Within 10 days after Closing for Boutique Hotel
Parcel.
3.
Developer's submission of funding
Within 4 months after Closing for Boutique Hotel
development and operation plan for Black
Parcel.
Box "Black Box Ian").
4.
Review of Black Box Plan by City and
Agency will review and will use reasonable efforts to
Agency.
cause City to review within 30 days of Developer's
submittal of Black Box Plan.
5.
Agency response to Developer as to City
Within 14 days after receipt of final comments from
and Agency comments on Black Box Plan.
Ci .
6.
Agency, City and Developer responses.
Developer will respond to any request within 14 days
and Agency will respond and will use reasonable
efforts to cause City to respond to any submission
within 14 days.
7.
Developer's submission of complete Site
Within 6 months after Closing for Boutique Hotel
Development Permit Application "SDPA",
Parcel.
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Preliminary Grading Plan
8.
Review of SDPA by all applicable City*
Agency will use reasonable efforts to cause such
departments.
review within 45 days after Developer's submission of
SDPA.
9.
Agency response to Developer as to City
Within 14 days after receipt of final comments from
comments on SDPA.
city.
10.
Developer and City responses.
Developer will respond to any request within 14 days
and Agency will use reasonable efforts to cause City
to respond to my submission within 14 days.
11.
Agency publishes Notice of Public Hearing
Within 10 days after Developer responds to all of
for SDPA before the Planning
City's comments in the preceding section.
Commission.
12.
Planning Commission Public Hearing and
Approximately 10 days after publication.
consideration of SDPA.
13.
City Council Public Hearing and
Approximately 30 days after approval by Planning
consideration of SDPA.
Commission.
14.
Cit 's issuance of SDPA and conditions.
Within 7 days after approval by City Council.
GG
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Item of Performance
Time for Completion
15.
Developer's preparation of final grading
Within 240 days after City's issuance of SDPA.
plans and Design/Construction
Drawings for Black Box.
-Development
16.
Developer's submission of (i) evidence of
Within 20 days after Developer's completion of
financing necessary to complete the Black
Design/Construction Development Drawings for
Box and (ii) management and operation
Black Box.
plan, including proposed transfer to the
City or a non-profit public benefit
corporation approved by the Ci .
17.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence of
conditions, or denial of Developer's
financing and Developer's management and operation
evidence of financing for Black Box and of
plan.
Developer's management and operation
lan.
18.
Review of management and operation plan
Agency will review and will use reasonable efforts to
by City and Agency.
cause City to review within 30 days of Developer's
submittal.
19.
Agency response to Developer as to City
Developer will respond to any request within 14 days
and Agency comments on management and
and Agency will respond and will use reasonable
operation plan.
efforts to cause City to respond to any submission
within 14 days.
20.
Review of final grading plans and
Agency will use reasonable efforts to cause such
Design/Construction Development
review within 45 days after Developer's submittal.
Drawings by all applicable City*
de artments.
21.
Developer conducts its inspections of
Not later than 30 days prior to scheduled date for
physical and environmental condition of
Closing.
property and procures commercial general
liabilitv insurance.
22.
Agency response to Developer as to City
Within 7 days after receipt of final comments from
comments on final grading plans and
City.
Design/Construction Development
Drawin s.
23.
Developer and City responses.
Developer will respond to any request within 15 days
and Agency will use reasonable efforts to cause City
to respond to any submittal within 7 days.
24.
Developer obtains bids for construction of
Within 2 months after City approves final grading
the Black Box.
plans and Design/Construction Development
Drawings.
25.
Developer and Agency execute and deposit
Three (3) days prior to the scheduled Closing Date.
into escrow the Option Agreement, Grant
Deed, Water Agreement, and all additional
funds and documents required under this
Agreement in order to close the Escrow,
including the closing costs for which each
paily is res onsible to pay.
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Item of Performance
Time for Completion
26.
Developer deposits into Escrow the
Three (3) days prior to the scheduled Closing Date.
Purchase Price for the Black Box Parcel.
27.
Escrow closes and Developer acquires fee
After completion of Items 1-20 and the satisfaction or
title to Black Box Parcel.
waiver of all of Agency's Conditions Precedent to the
Closing and Developer's Conditions Precedent to the
Closing, but in no event later than the date that is 30
months after the Closing for the Boutique Hotel
Parcel; provided, however, that (i) the Executive
Director of the Agency may extend such date by up to
six (6) additional months, pursuant to Section 202.5,
and (ii) if the Agency's or City's review time in any of
the foregoing Items exceeds the time allotted for such
review, then such date shall automatically be extended
by the number of days by which the Agency or City
exceeded its allotted time.
28.
Developer pulls grading permit for Black
Within 15 days after Close of Escrow.
Box and commences grading
29.
Developer pulls building permit for Black
Within 15 days after Close of Escrow.
Box and commences building.
30.
Developer commences construction of
Within 60 days after Close of Escrow.
Black Box.
31.
Developer's completion of Black Box.
Within 24 months after commencement of
construction for Black Box.
* Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
r
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SCHEDULE OF PERFORMANCE FOR
LAKE CASITAS DEVELOPMENT
671
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SCHEDULE OF PERFORMANCE FOR
LAKE CASITAS DEVELOPMENT
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Prior to A enc 's approval of final draft.
2.
Developer and Agency open Escrow.
Within IOda s after Effective Date.
3.
Developer's submission of complete Site
Within 19 months after Closing for Boutique Hotel
Development Permit Application "SDPA",
Parcel.
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Preliminary Grading Plan
4.
Review of SDPA by all applicable City*
Agency will use reasonable efforts to cause such
departments.
review within 45 days after Developer's submission of
SDPA.
5.
Agency response to Developer as to City
Within 14 days after receipt of final comments from
comments on SDPA.
city.
6.
Developer and City responses.
Developer will respond to any request within 14 days
and Agency will use reasonable efforts to cause City
to respond to any submission within 14 days.
7.
Agency publishes Notice of Public Hearing
Within 10 days after Developer responds to all of
for SDPA before the Planning
City's comments in the preceding section.
Commission.
8.
Planning Commission Public Hearing and
Approximately 10 days after publication.
consideration of SDPA.
9.
City Council Public Hearing and
Approximately 30 days after approval by Planning
consideration of SDPA.
Commission.
10.
City's issuance of SDPA and conditions.
Within 7 da s after approval by City Council.
11.
Developer's preparation of final grading
Within 180 days after City's issuance of SDPA.
plans and Design/Construction
Development Drawings for Lake Casitas
Develo ment.
12.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the Lake
Design/Construction Development Drawings for Lake
Casitas Development.
Casitas Development.
13.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence of
conditions, or denial of Developer's
financing.
evidence of financing for Lake Casitas
Develo ment.
14.
Review of final grading plans and
Agency will use reasonable efforts to cause such
Design/Construction Development
review within 45 days after Developer's submittal.
Drawings by all applicable City*
departments.
r
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Item of Performance
Time for Completion
15.
Developer conducts its inspections of
Not later than 30 days prior to scheduled date for
physical and environmental condition of
Closing.
property and procures commercial general
liability insurance.
16.
Agency response to Developer as to City
Within 7 days after receipt of final comments from
comments on final grading plans and
City.
Design/Construction Development
Drawings.
17.
Developer and City responses.
Developer will respond to any request within 15 days
and Agency will use reasonable efforts to cause City
to respond to any submittal within 7 days.
18.
Developer obtains bids for construction of
Within 1 month after City approves final grading
the Lake Casitas Development.
plans and Design/Construction Development
Drawings.
19.
Developer and Agency execute and deposit
Three (3) days prior to the scheduled Closing Date.
into escrow the City Declaration of
CC&Rs, Option Agreement, Grant Deed,
Water Agreement, Maintenance
Agreement, and all additional funds and
documents required under this Agreement
in order to close the Escrow, including the
closing costs for which each party is
responsible to pay.
20.
Developer deposits into Escrow the
Three (3) days prior to the scheduled Closing Date.
Purchase Price for the Lake Casitas
Development Parcel.
21.
Escrow closes and Developer acquires fee
After completion of Items 1-20 and the satisfaction or
title to Lake Casitas Development Parcel.
waiver of all of Agency's Conditions Precedent to the
Closing and Developer's Conditions Precedent to the
Closing, but in no event later than the date that is 42
months after the Closing for the Boutique Hotel
Parcel; provided, however, that (i) the Executive
Director of the Agency may extend such date by up to
six (6) additional months, pursuant to Section 202.5,
and (ii) if the Agency's or City's review time in any of
the foregoing Items exceeds the time allotted for such
review, then such date shall automatically be extended
by the number of days by which the Agency or City
exceeded its allotted time.
22.
Developer pulls grading permit for Lake
Within 15 days after Close of Escrow.
Casitas Development and commences
grading
23.
Developer pulls building permit for Lake
Within 15 days after Close of Escrow.
Casitas Development and commences
buildin .
24.
Developer commences construction of
Within 60 days after Close of Escrow.
Lake Casitas Development.
r w
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Item of Performance
Time for Completion
25.
Developer submits Developer CC&Rs to
Within 90 days prior to anticipated date for City's
Agency for approval.
issuance of first temporary or final certificate of
occupancy for Lake Casitas Development.
26.
Agency reviews Developer CC&Rs.
Within 30 days after submittal.
27.
Developer's completion of Lake Casitas
Within 24 months after commencement of
Develo ment.
construction for Lake Casitas Development.
* Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
n rr
882/015610-0094
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DRAFT
SCHEDULE OF PERFORMANCE FOR
GOLF CASITAS DEVELOPMENT
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DRAFT
SCHEDULE OF PERFORMANCE FOR
GOLF CASITAS DEVELOPMENT
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Prior to Agency's approval of final draft.
2.
Developer and Agency open Escrow.
Within 10 days after Effective Date.
3.
Developer's submission of complete Site
Within 25 months after Closing for Boutique Hotel
Development Permit Application "SDPA",
Parcel.
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Preliminary Grading Plan
4.
Review of SDPA by all applicable City*
Agency will use reasonable efforts to cause such
departments.
review within 45 days after Developer's submission of
SDPA.
5.
Agency response to Developer as to City
Within 14 days after receipt of final comments from
comments on SDPA.
City.
6.
Developer and City responses.
Developer will respond to any request within 14 days
and Agency will use reasonable efforts to cause City
to respond to any submission within 14 days.
7.
Agency publishes Notice of Public Hearing
Within 10 days after Developer responds to all of
for SDPA before the Planning
City's comments in the preceding section.
Commission.
8.
Planning Commission Public Hearing and
Approximately 10 days after publication.
consideration of SDPA.
9.
City Council Public Hearing and
Approximately 30 days after approval by Planning
consideration of SDPA.
Commission.
10.
City's issuance of SDPA and conditions.
Within 7 days after approval by City Council.
11.
Developer's preparation of final grading
Within 180 days after City's issuance of SDPA.
plans and Design/Construction
Development Drawings for Golf Casitas
Development.
12.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the Golf
Design/Construction Development Drawings for Golf
Casitas Development.
Casitas Development.
13.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence of
conditions, or denial of Developer's
financing.
evidence of financing for Golf Casitas
Develo ment.
14.
Review of final grading plans and
Agency will use reasonable efforts to cause such
Design/Construction Development
review within 45 days after Developer's submittal.
Drawings by all applicable City*
departments.
r
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Item of Performance
Time for Completion
15.
Developer conducts its inspections of
Not later than 30 days prior to scheduled date for
physical and environmental condition of
Closing.
property and procures commercial general
liability insurance.
16.
Agency response to Developer as to City
Within 7 days after receipt of final comments from
comments on final grading plans and
City.
Design/Construction Development
Drawings.
17.
Developer and City responses.
Developer will respond to any request within 15 days
and Agency will use reasonable efforts to cause City
to respond to any submittal within 7 days.
18.
Developer obtains bids for construction of
Within 1 month after City approves final grading
the Golf Casitas Development.
plans and Design/Construction Development
Drawings.
19.
Developer and Agency execute and deposit
Three (3) days prior to the scheduled Closing Date.
into escrow the City Declaration of
CC&Rs, Option Agreement, Grant Deed,
Water Agreement, Maintenance
Agreement, and all additional funds and
documents required under this Agreement
in order to close the Escrow, including the
closing costs for which each party is
res onsible to pay.
20.
Developer deposits into Escrow the
Three (3) days prior to the scheduled Closing Date.
Purchase Price for the Golf Casitas Parcel.
21.
Escrow closes and Developer acquires fee
After completion of Items 1-20 and the satisfaction or
title to Golf Casitas Parcel.
waiver of all of Agency's Conditions Precedent to the
Closing and Developer's Conditions Precedent to the
Closing, but in no event later than the date that is 48
months after the Closing for the Boutique Hotel
Parcel; provided, however, that (i) the Executive
Director of the Agency may extend such date by up to
six (6) additional months, pursuant to Section 202.5,
and (ii) if the Agency's or City's review time in any of
the foregoing Items exceeds the time allotted for such
review, then such date shall automatically be extended
by the number of days by which the Agency or City
exceeded its allotted time.
22.
Developer pulls grading permit for Golf
Within 15 days after Close of Escrow.
Casitas Development and commences
grading
23.
Developer pulls building permit for Golf
Within 15 days after Close of Escrow.
Casitas Development and commences
buildin .
24.
Developer commences construction of Golf
Within 60 days after Close of Escrow.
Casitas Development.
r
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DRAFT
Item of Performance
Time for Completion
25.
Developer submits Developer CC&Rs to
Within 90 days prior to anticipated date for City's
Agency for approval.
issuance of first temporary or final certificate of
occupancy for Golf Casitas Development.
26.
Agency reviews Developer CC&Rs.
Within 30 days after submittal.
27.
Developer's completion of Golf Casitas
Within 24 months after commencement of
Develo ment.
construction for Golf Casitas Development.
* Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
r rr�
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ATTACHMENT NO.10
MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
882/015610-0084
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DRAFT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
La Quinta Redevelopment Agency,
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
(Space Above For Recorder's Use)
This Memorandum of Disposition and Development
Agreement is recorded at the request and for the benefit of
the La Quinta Redevelopment Agency and is exempt from
the payment of a recording fee pursuant to Government
Code § 27383.
MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
This MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
("Memorandum") is entered into this _ day of 2006, by and between the
LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"),
and LDD SILVERROCK, LLC, a Delaware limited liability company ("LDD").
This Memorandum is made with reference to the following:
1. On or about Agency and LDD entered into that certain
Disposition and Development Agreement (the "Agreement") which provides for (i) Agency to
sell to LDD that certain real property located in the City of La Quinta, County of Riverside, State
of California, more particularly described in the legal description attached hereto as Exhibit "A"
and incorporated herein by this reference (the "Property"), and (ii) LDD to develop and operate
on the Property a luxury hotel with related amenities. The definitions of all terms contained in
the Agreement shall apply to this Memorandum.
2. On or about the date of this Memorandum, LDD acquired from Agency fee title to
a portion of the Property.
3. The Agreement provides for Agency and LDD to enter into this Memorandum
and to record the same in the Official Records of the County of Riverside to provide notice to all
persons of the existence of said Agreement and to cause the Agreement to run with the Property
and be binding on LDD and LDD's successors -in -interest as to the Property.
4. 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.
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DRAFT
IN WITNESS WHEREOF, Agency and LDD have entered into this Memorandum as of
the date first set forth above.
ATTEST:
Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
"Agency"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
Lo
Its: Executive Director
"LDD"
LDD SILVERROCK, LLC, a Delaware limited
liability company
an
Its:
f3
882/015610-0084 _2_
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":am
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On , before me, a Notary
Public, personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On , before me, a Notary
Public, personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
G32
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
E33
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Rter
ATTACHMENT NO.11
PARCEL MAP
[See following pages]
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u�
rc:
ATTACHMENT NO.12
FOUR STAR QUALITY REQUIREMENTS
[See following pages]
Four -Star Quality under this agreement indicates an outstanding hotel providing the guest
with a luxury experience in a distinctive setting, including expanded amenities and exceptional
service. Guests can expect an exceptional experience, where no less than ninety five (95)
percent of the following detailed characteristics are consistently met or exceeded:
Services Detail
Staff is well-groomed with professional, neat and well -maintained attire.
• All staff encountered are pleasant and professional in their demeanor.
• Front desk staff are articulate, smile and make eye contact.
• The front desk is staffed twenty-four hours.
• Restaurant on -site serving three meals daily.
• Valet parking is available.
• Baggage assistance is automatic.
• Complimentary newspapers are delivered to room automatically.
• Complete room service is available.
• Workstation is available where guest can access Internet.
• Basic fitness equipment is provided, including treadmills and cycles.
• Written confirmation is automatic or offered, either by mail, fax or e-mail.
• Guests name is used effectively, but discreetly, as a signal of recognition.
• The time from arriving at the reception area until registration is complete does not exceed
five minutes (includes queuing).
• Bed is plush and inviting with oversized or numerous pillows.
• Bedcovers are elegant and stylish and with linens of exceptional quality and comfort.
• All written information is provided on good quality paper or pads, custom -printed or
logoed.
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• Bathroom presentation and placement of amenities and linens is thoughtful, careful, and
elegant.
• Fresh ice is provided during evening service or at another time during the day.
• Turndown service is automatically provided.
• During turndown service, guest clothing is neatly handled and guest toiletries are neatly
arranged and displayed on a cloth or shelf.
• Room service is delivered within 30 minutes.
• Room service order is delivered within five minutes of quoted time.
• Two hour pressing available
• Same day laundry and dry cleaning is available seven days/week.
• Wake-up call is personalized with guest's name and time of day.
• Wake-up call is delivered within two minutes of requested time.
• Special service desk identified as concierge/guest service is situated apart from
reception/front desk.
• If spa services are present, treatments are begun and ended on schedule, within five
minutes of expected or booked time.
• If spa services are present, during treatment, therapist appears to be genuinely expert,
moving seamlessly through the treatment as described and expected.
Facilities Details
• Self parking area is free of debris, good condition; surfaces, curbs, paths.
• All outdoor walkways and approaches are well -maintained and cleaned.
• Outdoor awnings, signs, marquees, flags, and plantings are clean and in good condition.
• Public spaces are free of obvious hazards.
• Elevator landings, cars and doors/tracks are clean and in good condition.
• Guest room corridor floors, walls and ceilings are free of debris, marks, and damage.
All furniture, fixtures and equipment are clean, neat and well -maintained.
• Ashtrays throughout public areas are well -maintained and free of excessive debris.
• Temperature in all interior public areas are maintained in general comfort range.
Public washrooms very hygienic and neat, with well -stocked paper and soap.
61T
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• Public washroom fixtures, walls and floors are in very good condition.
• Meeting rooms are well -signed so that it is easy to find and arrive at a specific room.
• Meeting room doors are in good condition, free of nicks and damage.
• Meeting room interiors are in generally good condition, including walls, floors and
ceiling.
• Lobby provides a comfortable seating area.
• Lobby floors, walls and ceiling are free of debris, marks and damage.
• Lobby areas feature elegant live plants and/or fresh floral displays.
• Notices are professional, matching decor, not "homemade".
• Vending and/or ice machines are located on each guest floor.
• Vending and/or ice areas and equipment are clean, well -lit, and well -maintained.
Service doors are clean, free of marks and damage, and closed.
• A variety of different sized and appointed rooms available in hotel.
• High quality, varied, and major brand sundry selections are available in an on -site store.
Suite (separate bedroom and living areas) accommodations are available.
A dedicated and secure luggage storage area is available.
• Public phones are convenient, and equipped with seats, privacy panels and pad/pens.
• Public washrooms are furnished with upgraded materials and appointments/luxurious
design.
• Televisions feature premium cable TV (two movie channels, two all -news, two financial).
Pay -Movie selections are available through television.
Guest room telephones have two lines.
Guest rooms equipped with data ports (guest can connect laptop to the Internet).
• Direct dial phones with direct long distance dialing are available in each guest room.
• If public phonebook present, it is displayed in attractive cover.
Guest Room Detail
Hardware and hangings (door locks, racks, artwork, etc.) are secure and in good
condition.
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DRAFT
• Carpet/floor is free of debris, stains, wear, loose threads, open seams, etc.
• Walls and ceilings are free of marks, stains and damage.
• Drapes are free of stains, damage; pull easily and hang properly.
• Furniture is free of dust, marks and damage.
• All printed material including collateral, phonebooks and stationery are neat, crisp and
current.
• Drawers and shelves are clean, free of dust and debris.
• All light bulbs operate; all light fixtures and lamps are in good condition, clean.
• Mirrors and windows are free of smudges and damage throughout.
• If safe is provided, it is clean, functional and convenient.
• Room equipped with accurate, functional clock and radio/stereo.
• Color television works and is equipped with remote control, and is minimum 19".
• All bedding and linens are free of debris, hairs, damage and stains.
• Room heating and air conditioning is easily controlled by guest and is quiet.
Air is fresh and clean, no stuffiness or odors.
Sink, tub, shower, toilet, bidet are very clean, free of hairs, stains and discoloration.
Bathroom tile and grouting is clean, not discolored, cracked or mildewed.
• Faucets and drains operate smoothly and easily.
• Minimum bath linen is present: one bathmat; two each of facecloth, hand towel and bath
towel.
If robes are provided, they are free of spots, stains and loose threads.
Guest room door and frame free of marks, scratches and scuffs.
• Comfortable seating for two people (other than bed).
• Guest service directory, pad and pen/pencil present and conveniently placed.
• Enclosed closets (means closets must have doors).
• There are three spacious drawers or enclosed shelves (inside closet).
• A Luggage rack or bench provided; and adequate space to leave suitcase.
Extra clean and hygienic blanket and pillow provided in room.
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Lighting throughout the room is adequate.
The room can be fully darkened.
Full-length mirror present in room.
• A hairdryer present in room, clean and functional.
• Each guest room has two phones (one could be in the bathroom).
• Comfortable desk and chair are available for working, complete with telephone, data
port, and light.
• Insulated ice bucket, vinyl or better, as well as glass glassware; clean and hygienic are
present in room.
• Minibar is present (defined as selection of several beverages and snacks). It is non auto -
charge, and premium products are attractively displayed.
• Minibar is hygienic, free of spills and damage, all products are sealed, price list present.
• If coffeemaker is present, it is hygienic, and ceramic mugs and napkins are available.
Pillows are plush and full, no foam.
Framed artwork or interesting architectural features exist in room.
• Excellent lighting is provided in bathroom for makeup and shaving.
• Hygienic soap, shampoo and four other bath amenities are provided. Amenities are
presented attractively, thoughtfully (not simply lined up on counter).
• Towels are of absorbent quality, with soft nap and no discoloration.
Towels are free of spots, stains, tears and obvious frays.
• Guest room is of generous size, and provides ample seating for more than two persons.
• Selection of at least 10 hangers including a variety of bars, clips and padded.
• In -room safe is present.
• Bed is triple sheeted or features washable duvets.
• Live plants are present in guest rooms.
• Shaving/makeup, lighted magnifying mirror is present.
Specialized Facility Detail
Poolibeach furniture is clean, hygienic and well -maintained.
Pool deck or beach/sand is clean and free of excessive debris.
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Pool deck and tiling are in good condition, free of excessive damage or wear.
Pool water is clean, free of debris and free of notable odors.
• Pool fittings and equipment (ladders, dive boards) are secure and in good condition.
• If tennis exists on site under same management, court surfaces are in good condition, free
of damage and well -marked.
Tennis courts and surrounding areas are clean and free of debris.
• Fixtures, nets, lights, fences are well -maintained and good condition.
• If golf exists on site under same management, pro shop/clubhouse interior are clean and
well -maintained; displays and counters neat and tidy.
Pro shop/clubhouse and surrounding areas are clean with well -maintained appearance.
Golf carts are clean, well -organized and maintained.
• Rental equipment is clean and good condition, including bags.
• Guest can pick up e-mail and access the Internet from a Business Center workstation.
Business Center working areas are clean, tidy and professional.
• Comfortable office -style chairs at the Business Center guest workstations.
• All fitness, treatment and relaxation areas are hygienic, neatly organized and maintained.
• Spa reception area is well-defined, neat and professional.
• Fitness equipment is clean, in very good condition, conveniently laid out.
• Fitness/workout area is well -ventilated, with comfortable temperature.
• Fitness equipment is available with personal headphones/televisions.
• Sound system or television provided in fitness/workout areas.
• Towels are provided in locker and fitness areas.
• Grooming area equipped with hairdryers; soap and shampoo conveniently placed.
• All amenities are neatly and professionally presented; very hygienic.
Locker room, showers, sauna and hot tub extremely clean, hygienic appearance.
• If Business Center is present, a semi -private working area with workstation and telephone
is available for guests.
• If a spa exists on site, robes and slippers or spa sandals are available in variety of sizes,
and they are clean and in good condition.
u�
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If spa or fitness center exists on site, complimentary amenities to include body lotion,
shower caps, talc/deodorant and combs.
If spa exists on site, at least two types of massage and either body treatments or facials
are also offered.
If tennis is available on site, water is available courtside.
• If pool or beach service is present, ample towels are available poolside or at the beach.
• Current newspapers and national -title magazines are provided in fitness and locker areas.
If spa, treatment rooms are equipped with individually controlled temperature and sound
systems.
iJJA
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ATTACHMENT NO.13
LIST OF PUBLIC IMPROVEMENTS
[See following pages]
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ATTACHMENT NO.14
LIST OF AUTHORIZED MANAGERS
1. Tishman Hotel Corporation
2. Rosewood Hotels and Resorts, LLC
3. Gemstone Resorts International, LLC
4. Noble House Hotels and Resorts
5. Intercontinental Hotels Group
6. Marriott International, Inc.
7. Starwood Hotels and Resorts Worldwide, Inc.
8. Global Hyatt Corporation
9. Fairmont Raffles Holdings
10. Four Seasons Hotels, Inc.
11. Loews Corporation
12. West Paces Hotel Group
13. Mandarin Oriental Hotel Group
14. The Hong Kong and Shanghai Hotels
15. Vail Resorts, Inc.
16. Hilton Hotels Corporation
17. Ritz Carlton Hotel Company, LLC
18. Kimpton Hotel and Restaurant Group, LLC
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ATTACHMENT NO.15
RENT SCHEDULE FOR RESORT RETAIL VILLAGE PARCEL
[See following pages]
i
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