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2011 06 07 CC61r# 4 #OdA City Council agendas are available on the City's web page @ www.la-quinta.org CITY COUNCIL I;TCVA 1 117111 CITY COUNCIL CHAMBERS 78-495 Calle Tampico La Quinta, California 92253 Regular Meeting TUESDAY, JUNE 7, 2011 3:00 P.M. Closed Session / 4:00 P.M. Open Session Beginning Resolution No. 2011-038 Ordinance No. 487 CALL TO ORDER Roll Call: Council Members: Evans, Franklin, Henderson, 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 NOTE: Time permitting the City Council may conduct Closed Session discussions during the dinner recess. Persons identified as negotiating parties are not invited into the Closed Session meeting when acquisition of real property is considered. 1. CONFERENCE WITH LABOR NEGOTIATORS, SKI HARRISON AND THOMAS P. GENOVESE REGARDING NEGOTIATIONS WITH THE LA QUINTA CITY EMPLOYEES ASSOCIATION PURSUANT TO GOVERNMENT CODE SECTION 54957.6 MEET AND CONFER PROCESS •«. 001 CITY COUNCIL AGENDA 1 JUNE 7, 2011 !I 2. CONFERENCE WITH CITY ATTORNEY PURSUANT TO GOVERNMENT CODE SECTION 54956.9(c) RE: INITIATION OF LITIGATION (ONE MATTER — PETITION FOR APPOINTMENT OF RECEIVER FOR 46-810 HIGHLAND PALMS DRIVE, LA QUINTA) RECESS TO CLOSED SESSION AND TO REDEVELOPMENT AGENCY RECONVENE AT 4:00 P.M. 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. CONFIRMATION OF AGENDA PRESENTATIONS 1. LA QUINTA LIBRARY AND MUSEUM QUARTERLY REPORT FOR JANUARY THROUGH MARCH 2O11 WRITTEN COMMUNICATIONS — NONE APPROVAL OF MINUTES 1. APPROVAL OF MINUTES OF MAY 17, 2011 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 JUNE 7, 2011 2. APPROVAL OF AN AMENDMENT TO THE BANKING SERVICES CONTRACT WITH WELLS FARGO BANK 3. APPROVAL OF A ONE YEAR CONTRACT EXTENSION WITH VINTAGE ASSOCIATES FOR THE PARK LANDSCAPE MAINTENANCE SERVICES CONTRACT FOR FISCAL YEAR 2011-2012 » 002 CITY COUNCIL AGENDA 2 JUNE 7, 2011 4. AUTHORIZATION OF OVERNIGHT TRAVEL FOR ONE MEMBER OF THE CITY COUNCIL TO ATTEND THE LEAGUE OF CALIFORNIA CITIES REVENUE AND TAXATION COMMITTEE MEETING TO BE HELD JUNE 17, 2011 IN SACRAMENTO, CALIFORNIA 5. AUTHORIZATION OF OVERNIGHT TRAVEL FOR ONE MEMBER OF THE CITY COUNCIL TO ATTEND THE NATIONAL LEAGUE OF CITIES BOARD OF DIRECTORS MEETING TO BE HELD JULY 7-9, 2011 IN CHARLOTTE, NORTH CAROLINA 6. APPROVAL OF AMENDMENT NO. 2 TO THE AGREEMENT WITH YOUNG ELECTRIC SIGN COMPANY FOR PROJECT NO. LMC 2008-14, LANDSCAPE LIGHTING MAINTENANCE SERVICES FOR LANDSCAPE & LIGHTING ASSESSMENT DISTRICT 89-1 7. APPROVAL OF AMENDMENT NO. 2 TO THE AGREEMENT WITH TESERRA FOR PROJECT NO. LMC 2008-13, LANDSCAPE MAINTENANCE SERVICES FOR LANDSCAPE & LIGHTING ASSESSMENT DISTRICT 89-1 8. ADOPTION OF A RESOLUTION TO EXTEND THE TIME FOR COMPLETION OF THE OFFSITE AND ONSITE IMPROVEMENTS FOR TRACT MAP NO. 29436, HIDDEN CANYON, TRANS WEST HOUSING, INC. 9. APPROVAL OF AMENDMENT NO. 3 TO THE MAINTENANCE SERVICES AGREEMENT WITH CLEANSTREET FOR MECHANICAL STREET SWEEPING SERVICES 10. APPROVAL OF ASSIGNMENT AND ASSUMPTION AGREEMENTS FOR TRACT MAP NO. 30092, PIAZZA SERENA, K. HOVNANIAN FORECAST HOMES, INC. 11. ADOPTION OF A RESOLUTION TO EXTEND THE TIME FOR COMPLETION OF THE ON -SITE IMPROVEMENTS FOR TRACT MAP NO. 32070, CODORNIZ, RJT HOMES, LLC 12. ACCEPTANCE OF A GRANT OF EASEMENT AND AGREEMENT FOR ROADWAY PURPOSES AT DUNE PALMS ROAD AND "A" STREET WITH DESERT SANDS UNIFIED SCHOOL DISTRICT 13. APPROVAL TO EXCUSE COMMISSIONER MARK WEBER'S ABSENCES FROM THE JUNE 14 AND JUNE 28, 2011 PLANNING COMMISSION MEETINGS ''N, 003 CITY COUNCIL AGENDA 3 JUNE 7, 2011 14. APPROVAL TO EXCUSE COMMISSIONER MARIA PUENTE'S ABSENCES FROM THE JUNE 16 AND JULY 21, 2011 HISTORIC PRESERVATION COMMISSION MEETINGS 15. APPROVAL OF A STANDARD DOMESTIC WATER SYSTEM AND SANITATION SYSTEM INSTALLATION AGREEMENT WITH COACHELLA VALLEY WATER DISTRICT FOR THE CORAL MOUNTAIN APARTMENTS 16. ACCEPTANCE OF COLONEL PAIGE MIDDLE SCHOOL RESTROOM PROJECT NO. 2010-05, AND APPROPRIATION OF ADDITIONAL FUNDING 17. APPROVAL OF PLANS, SPECIFICATIONS, AND ENGINEER'S ESTIMATE (PS&E) OF PROBABLE CONSTRUCTION COSTS AND AUTHORIZATION TO ADVERTISE FOR BID THE FISCAL YEAR 2011-2012 SLURRY SEAL PROGRAM, PROJECT NO. 2010-15 18. ADOPTION OF A RESOLUTION CONSENTING . TO THE USE OF REDEVELOPMENT AGENCY FUNDING FOR A PURCHASE AND SALE AGREEMENT AMONG THE CITY OF LA QUINTA, THE LA QUINTA REDEVELOPMENT AGENCY, AND RICHARD AND PATRICE VARGE FOR PROPERTY LOCATED NORTH OF LA QUINTA COMMUNITY PARK (APNs 773-072-005, 773-073-021 THROUGH 027) AND MAKING CERTAIN FINDINGS PURSUANT TO HEALTH AND SAFETY CODE SECTION 33445 19. ADOPTION OF A RESOLUTION CONSENTING TO THE USE OF REDEVELOPMENT AGENCY FUNDING FOR, AND APPROVING PURCHASE AND SALE AGREEMENTS BETWEEN THE CITY OF LA QUINTA, AND (1) THOMAS H. CASEY, CHAPTER 7 BANKRUPTCY TRUSTEE FOR 5-PLEX LOCATED ON THE SOUTH SIDE OF AVENIDA LA FONDA (APN 770-125- 003), AND (2) YESSAYIAN FAMILY LTD. PARTNERSHIP FOR 5-PLEX LOCATED ON THE SOUTH SIDE OF MAIN STREET (APN 770-124-004), AND MAKING CERTAIN FINDINGS PURSUANT TO HEALTH AND SAFETY CODE SECTION 33445 BUSINESS SESSION 1. CONSIDERATION OF IMPROVEMENTS AND AN APPROPRIATION OF FUNDING FOR THE FRITZ BURNS DOG PARK A. MINUTE ORDER ACTION ..w 004 CITY COUNCIL AGENDA 4 JUNE 7, 2011 2. CONSIDERATION OF A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF LA QUINTA AND THE COUNTY OF RIVERSIDE REGARDING THE POTENTIAL WIDENING OF FRED WARING DRIVE BETWEEN ADAMS STREET AND PORT MARIA ROAD A. MINUTE ORDER ACTION STUDY SESSION - NONE REPORTS AND INFORMATIONAL ITEMS 1. ANIMAL CAMPUS COMMISSION (FRANKLIN) 2. BOB HOPE CLASSIC FUND DISTRIBUTION COMMITTEE (FRANKLIN) 3. CITY COUNCIL AD HOC COMMITTEE REPORTS 4. CVAG COMMITTEE REPORTS 5. CHAMBER OF COMMERCE WORKSHOP/INFORMATION EXCHANGE COMMITTEE (ADOLPH) 6. C.V. CONSERVATION COMMISSION (SNIFF) 7. C.V. MOSQUITO AND VECTOR CONTROL DISTRICT (ROBERT COX) 8. C.V. MOUNTAINS CONSERVANCY (FRANKLIN) 9. C.V.W.D. JOINT WATER POLICY COMMITTEE (ADOLPH) 10. IID ENERGY CONSUMERS' ADVISORY COMMITTEE (FRANKLIN) 11. JACQUELINE COCHRAN REGIONAL AIRPORT AUTHORITY (FRANKLIN) 12. LEAGUE OF CALIFORNIA CITIES (HENDERSON) 13. PALM SPRINGS DESERT RESORT COMMUNITIES CONVENTION & VISITORS AUTHORITY (EVANS) 14. PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION (NANCY DORIA) 15. RIVERSIDE COUNTY FREE LIBRARY ADVISORY COMMITTEE (DIANE GUNN) . 16. RIVERSIDE COUNTY TRANSPORTATION COMMISSION (HENDERSON) 17. SUNLINE TRANSIT AGENCY/SUNLINE SERVICES GROUP (ADOLPH) DEPARTMENT REPORTS 1. CITY MANAGER - NONE 2. CITY ATTORNEY 3. CITY CLERK - NONE 4. BUILDING & SAFETY DEPARTMENT REPORT - NONE 5. COMMUNITY SERVICES DEPARTMENT REPORT - NONE 6. FINANCE DEPARTMENT REPORT - NONE 7. PLANNING DEPARTMENT REPORT A. GENERAL PLAN MONTHLY UPDATE 8. PUBLIC WORKS DEPARTMENT REPORT - NONE 9. POLICE DEPARTMENT REPORT - NONE 10. FIRE DEPARTMENT QUARTERLY REPORT - NONE • 005 CITY COUNCIL AGENDA 5 JUNE 7, 2011 MAYOR'S AND COUNCIL MEMBERS' ITEMS 1. DISCUSSION REGARDING COACHELLA VALLEY MUSIC AND ARTS FESTIVAL (MAYOR ADOLPH) PUBLIC HEARINGS — NONE ADJOURNMENT The next regular meeting of the City Council will be held on June 21, 2011 commencing with closed session at 3:00 p.m. and open session at 4:00 p.m. in the City Council Chambers, 78-495 Calle Tampico, La Quinta, CA 92253. 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 June 7, 2011, 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 June 3, 2011. DATED: June 3, 2011 VERONICA J. MON&ECINO,City Clerk City of La Quinta, California Public Notices • The La Quints 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. • Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the City Clerk counter at City Hall located at 78-495 Calle Tampico, La Quints, California, 92253, during normal business hours. CITY COUNCIL AGENDA 6 JUNE 7, 2011 0 0 6 i7a-y� o-a &„, )I) To: Chairman Mendoza and Members of the Board, Imperial Irrigation District From: Terry Siemens, J.D., M.B.A. Coordinator Coachella Valley Residents Opposed to Smart Meters Regarding: Opt Out Provisions/ Modification of Smart Meter Program Date: June 7, 2011 Dear Chairman Mendoza and Mem�ers of the B, gard o Directors: 0,ut-�. Cx--( i�l.(jw\ I have attached the following documents for your review. 1. Assigned Commissioner Ruling and Scoping Memo, now before the Public Utilities Commission of the State of California, Filed May 25, 2011. 2. WHOAARC Classified Cell Phone Radio Frequency Radiation as a 2B (Possible) Carcinogen Drafted May 31, 2011 3. Comments on the Draft Report by the California Council on Science and Technology, "Health Impacts of Radio Frequency from Smart Meters," by Daniel Hirsch. encourage your board to review the attached documents and to uphold the requests of IID ratepayers who wish to opt out of the smart meter program, in a manner consistent with the final ruling afforded to ratepayers of California's Investor Owned Utilities. Thank you. 007 MP1/gd2 5/25/2011 0525-11 11 D 01:15 PM BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Application of Pacific Gas and Electric Company for Approval of Modifications to its SmartMeterTM Program and Increased Revenue Requirements to Recover the Costs of the Modifications. (U39M) Application 11-03-014 (Filed March 24, 2011) ASSIGNED COMMISSIONER RULING AND SCOPING MEMO Summary Pursuant to Article 7 of the Commissions Rules of Practice and Procedure (Rules), this Ruling and Scoping Memo sets forth the procedural schedule and issues to be addressed, designates the presiding officer, and addresses other procedural issues which will facilitate the efficient processing of the proceeding. Procedural Background In 2002, the Commission directed utilities to explore advanced metering systems (AMI) to offer customers improved options to reduce energy usage during high demand periods. In response to this directive, Pacific Gas and Electric Company (PG&E) applied for approval to install AMI technologies on electric and gas meters. The Commission approved PG&E's AMI project in Decision (D.) 06-07-027. Later, PG&E applied to upgrade its AMI technology with second - generation SmartMeters. The Commission approved PG&E's upgrade on 451851 -1- �, 008 A.11-03-014 MP1/gd2 March 13, 2009, in D.09-03-026. The second -generation AMI technology relies upon wireless radio frequency (RF) signals. On March 10, 2011, during the Commission's Public Business Meeting Commission President Michael Peevey noted that some PG&E customers have expressed concern about the RF signals from PG&E's SmartMeter technology. Commissioner Peevey responded to these concerns by directing PG&E on behalf of the Commission to "prepare a proposal for Commission consideration that will allow some form of opt -out for customers who object to these devices at reasonable cost, to be paid by the customers who choose to opt -out.." On March 24, 2011, PG&E filed Application (A.)11-03-014 for Commission approval of modifications to its SmartMeter Program, and an increase in revenue requirements to recover the costs of the modifications. PG&E estimates that the modification costs are approximately $38 million in capital costs and $75 million in expenses, or about $84.4 million for the two-year period 2012-2013. On April 25, 2011, protests were received from the Division of Ratepayer Advocates, Alameda County Residents Concerned About Smart Meters, The Town of Fairfax, the Alliance For Human and Environmental Health, and the County of Marin (Joint Protestants); Wilner and Associates, The County of Lake, EMF Safety Network, Aglet Consumer Alliance, The County of Mendocino, The Utility Reform Network, and Ecological Options Network. On May 6, 2011, a Prehearing Conference (PHC) was held before assigned Administrative Law Judge (ALJ) Bruce DeBerry to determine parties, identify 1 The Town of Fairfax and the Alliance for Human and Environmental Health also filed a Motion to add the County of Marin as a protesting party. That motion is unopposed and is granted. i -2- 1 A.11-03-014 MP1/gd2 issues, discuss the need for evidentiary hearings, and address other matters as necessary to proceed with this application. Issues PG&E's application requests approval to implement modifications to its current SmartMeter Program, and the associated costs of these modifications. Some parties request that resolution of the application include studies associated with the actual SmartMeter technology and potential health effects. In D.06-07-027 and D.09-03-026 the Commission addressed PG&E's SmartMeter Program, but did not include such health studies in the scope of these proceedings. In D.10-12-001 the Commission determined that PG&E's SmartMeter technology complied with Federal Communications Commission requirements? Embarking on resolving this issue at this time would greatly delay addressing PG&E's application and also delay implementation of a reasonable opt -out program. Thus the first phase of this proceeding is to address those issues which are included in PG&E's request. These issues are: 1. Whether PG&E's proposed Opt -Out program is a reasonable solution as an alternative to those customers who choose not to have a SmartMeter capable of RF transmission. Parties may recommend other reasonable cost alternative methods which allow a customer to Opt - Out of a SmartMeter installation. Parties recommending an alternative Opt -Out program shall also provide the estimated costs of any recommended alternative Opt -Out program, and a proposed cost recovery mechanism. 2. Whether the estimated costs of PG&E's Opt -Out program are reasonable. 2 See, D.10-12-001, Finding of Fact 2. !? - 3 - I"" an A.11-03-014 MP1/gd2 3. Whether PG&E's.proposed cost recovery of the costs for the Opt-Out.Program is reasonable. In addition to these three issues, during the PHC the City of San Francisco noted the importance of adopting an Opt -Out program in order to address the current "delay list" which provides that. customers requesting a delay in a SmartMeter installation may do so.3 Parties should address how the delay list should be coordinated with the Opt -Out program. Schedule During the PHC the assigned ALJ noted the difficulty in developing a schedule without an understanding of the issues in this proceeding. The ALJ recommended that a second PHC would follow issuance of this scoping memo 4 As this scoping memo now identifies the issues to be addressed in this proceeding, the second PHC should determine a schedule. In any event this proceeding is expected to conclude no later than 18 months after the date of this scoping memo and ruling. Alternative Dispute Resolution The Commissions Alternative Dispute Resolution (ADR) program offers mediation, early neutral evaluation, and facilitation services, and uses ALJs who have been trained as neutrals. At the second PHC the ALJ will provide parties with an opportunity to participate in ADR. ADR information is available on the Commissions website 5 LN9... 5 hn://www.cyuc.ca.y-ov/adr/. d o C 4' -4- 01l .,� A.11-03-014 MP1/gd2 Workshops Parties may recommend one or more workshops to address the issues in this proceeding. The purpose of the workshops shall be to discuss and provide recommendations for discussion of PG&E's requested Opt -Out program and alternative Opt -Out programs developed by parties. The workshops will also consider associated costs and cost recovery. Written reports may be prepared and circulated. Settlements Any settlements between parties, whether regarding all or some of the issues, shall comply with Article 12 of the Commissions Rules and shall be served by electronic and paper copy. Such settlement shall include a complete explanation of the settlement and a complete explanation of why it is reasonable in light of the whole record, consistent with law, and in the public interest. The proposing parties bear the burden of proof as to whether a settlement should be adopted by the Commission. If a settlement is proposed, the Commission may adopt or reject it. Rule 12.4 addresses the steps the Commission may take in rejecting a settlement. Therefore, in developing and proposing a settlement, the parties should keep in mind the Commission's options regarding the settlement. In any motion proposing a settlement, the settling parties shall indicate whether individual components of the settlement are severable, and what procedural remedy they would prefer the Commission pursue if the Commission does not adopt the settlement. Service and Service List The official service list was created at the PHC, and is now available on the Commissions web page. All parties to this proceeding shall serve documents -5- 012. A.11-03-014 MP1/gd2 and pleadings using electronic mail whenever possible, transmitted no later than 5 p.m., on the date for service to occur 6 Categorization and Ear Parte Communication The commission preliminarily categorized this matter as ratesetting in Resolution 176-3272, dated April 14, 2011. The categorization of this proceeding is confirmed as ratesetting. The Commission preliminarily determined that hearings would be necessary. Appeals of this ruling on category, if any, must be filed and served within 10 days.7 Ex parte communications are permitted subject to the restrictions, and reporting requirements specified in Article 8 of the Rules. Presiding Officer ALJ Bruce DeBerry is the Presiding Officer in this proceeding. IT IS RULED that: 1. The final categorization of this proceeding is ratesetting and hearings are required. 2. Ex parte communications are permitted subject to the restrictions and reporting requirements set forth in Article 8 of the Commission's Rules of Practice and Procedure. 3. The issues and schedule are as set forth above unless amended by the assigned Commissioner or assigned Administrative Law Judge. 6 See, Rule 1.10. 7 See, Rule 7.6. �'' 013 'ww A.11-03-014 MPl/gd2 4. Parties shall follow the procedure stated above in making any request for final oral argument. 5. Any settlement reached between parties shall be served by paper copy and e-mail as discussed above. 6. Administrative Law Judge Bruce DeBerry is the Presiding Officer in this proceeding. Dated May 25, 2011, at San Francisco, California. MICHAEL R. PEEVEY Michael R. Peevey Assigned Commissioner -7- .« 014 IARC Classified Cell Phone Radiofrequency Radiation as a 213 (Possible) Carcinogen May 31, 2011: The WHO International Agency for Research on Cancer has just issued it's decision that non -ionizing radiofrequency radiation is classified as a 213 (Possible) Carcinogen. This mirrors the 2001 IARC finding that extremely low frequency (ELF-EMF) that classified as a 2B (Possible) Carcinogen. This pertained to power frequency (power line and appliance) non -ionizing radiation. These two findings confirm that non -ionizing radiation should be considered as a possible risk factor for cancers; and that new, biologically -based public safety standards are urgently needed. Cindy Sage PRESS RELEASE N° 208 IARC CLASSIFIES RADIOFREQUENCY ELECTROMAGNETIC FIELDS AS POSSIBLY CARCINOGENIC TO HUMANS Lyon, France, May 31, 2011-- The WHO/International Agency for Research on Cancer (IARC) has classified radiofrequency electromagnetic fields as possibly carcinogenic to humans (Group 2B), based on an increased risk for glioma, a malignant type of brain cancerl, associated with wireless phone use. Background Over the last few years, there has been mounting concern about the possibility of adverse health effects resulting from exposure to radiofrequency electromagnetic fields, such as those emitted by wireless communication devices. The number of mobile phone subscriptions is estimated at 5 billion globally. From May 24-32 2011, a Working Group of 31 scientists from 14 countries has been meeting at IARC in Lyon, France, to assess the potential carcinogenic hazards from exposure to radiofrequency electromagnetic fields. These assessments will be published as Volume 102 of the IARC Monographs, which will be the fifth volume in this series to focus on physical agents, after Volume 55 (Solar Radiation), Volume 75 and Volume 78 on ionizing radiation (X-rays, gamma -rays, neutrons, radio -nuclides), and Volume 80 on non -ionizing radiation (extremely low -frequency electromagnetic fields). •.-. 015 The IARC Monograph Working Group discussed the possibility that these exposures might induce long-term health effects, in particular an increased risk for cancer. This has relevance for public health, particularly for users of mobile phones, as the number of users is large and growing, particularly among young adults and children. The IARC Monograph Working Group discussed and evaluated the available literature on the following exposure categories involving radiofrequency electromagnetic fields: -�c- occupational exposures to radar and to microwaves; &- environmental exposures associated with transmission of signals for radio, television and wireless telecommunication; and & personal exposures associated with -the use of wireless telephones. International experts shared the complex task of tackling the exposure data, the studies of cancer in humans, the studies of cancer in experimental animals, and the mechanistic and other relevant data. 1237 913 new cases of brain cancers (all types combined) occurred around the world in 2008 (gliomas represent 2/3 of these). Source: Globocan 2008 Results The evidence was reviewed critically, and overall evaluated as being limited2 among users of wireless telephones for glioma and acoustic neuroma, and 1nodequote3 to draw conclusions for other types of cancers. The evidence from the occupational and environmental exposures mentioned above was similarly judged inadequate. The Working Group did not quantitate the risk; however, one study of past cell phone use (up to the year 2004), showed a 40% increased risk for gliomas in the highest category of heavy users (reported average: 30 minutes per day over a 10-year period). Conclusions Dr Jonathan Samet (University of Southern California, USA), overall Chairman of the Working Group, indicated that "the evidence, while still accumulating, is strong enough to support a conclusion and the 26 classification. The conclusion means that there could be some risk, and therefore we need to keep a close watch for a link between cell phones and cancer risk." "Given the potential consequences for public health of this classification and findings," said IARC Director Christopher Wild, "it is important that additional research be conducted into the long- term, heavy use of mobile phones. Pending the availability of such information, it is important to take pragmatic measures to reduce exposure such as hands -free devices or texting. " The Working Group considered hundreds of scientific articles; the complete list will be published in the Monograph. It is noteworthy to mention that several recent in -press scientific articles4 resulting from the Interphone study were made available to the working group shortly before it was due to convene, reflecting their acceptance for publication at that time, and were included in the evaluation. A concise report summarizing the main conclusions of the IARC Working Group and the evaluations of the carcinogenic hazard from radiofrequency electromagnetic fields (including the use of mobile telephones) will be published in The Lancet Oncology in Its July 1 issue, and In a few days online. 016 2 'Limited evidence of carcinogenicity': A positive association has been observed between exposure to the agent and cancer for which a causal interpretation is considered by the Working Group to be credible, but chance, bias or confounding could not be ruled out with reasonable confidence. 3 'Inadequate evidence of carcinogenicity': The available studies are of insufficient quality, consistency or statistical power to permit a conclusion regarding the presence or absence of a causal association between exposure and cancer, or no data on cancer in humans are available. 4 a. 'Acoustic neuroma risk in relation to mobile telephone use: results of the INTERPHONE international case- control study' (the Interphone Study Group, in Cancer Epidemiology, in press) b.'Estimation of RF energy absorbed in the brain from mobile phones in the Interphone study' (Cardin et al., Occupational and Environmental Medicine, in press) c. 'Risk of brain tumours in relation to estimated RF dose from mobile phones — results from five Interphone countries' (Cardis et al., Occupational and Environmental Medicine, in press) IARC, 150 Cours Albert Thomas, 69372 Lyon CEDEX 08, France - Tel: +33 (0)4 72 73 84 85 - Fax: +33 (0)4 72 73 85 75 © IARC 2011 - All Rights Reserved. d.'Location of Gliomas in Relation to Mobile Telephone Use: A Case -Case and Case-Specular Analysis' (American Journal of Epidemiology, May 24, 2011. [Epub ahead of print). For more information, please contact Dr Kurt Straif, IARC Monographs Section, at +33 472 738 511, or straif@iarc.fr; Dr Robert Baan, IARC Monographs Section, at +33 472 738 659, or baan@iarc.fr; or Nicolas Gaudin, IARC Communications Group, at COm@iarc.fr (+33 472 738 478) Link to the audio file posted shortly after the briefing: httu://terrance.who.int/mediacentre/audio/press briefings/ About IARC The International Agency for Research on Cancer (IARC) is part of the World Health Organization. Its mission is to coordinate and conduct research on the causes of human cancer, the mechanisms of carcinogenesis, and to develop scientific strategies for cancer control. The Agency is involved in both epidemiological and laboratory research and disseminates scientific information through publications, meetings, courses, and fellowships. If you wish your name to be removed from our press release e-mailing list, please write to com@iarc.fr. Nicolas Gaudin, Ph.D. Head, IARC Communications International Agency for Research on Cancer World Health Organization 150, Cours Albert -Thomas 69008 Lyon France Email com@iarc.fr htto://www.iarc.fr/" ,.N GO Comments on the Draft Report by the California Council on Science and Technology "Health Impacts of Radio Frequency from Smart Meters" by Daniel Hirsch' 31 January 2011 Abstract The draft report by the California Council on Science and Technology (CCST) does not appear to answer the questions asked of it by the requesting elected officials. Furthermore, rather than being an independent, science -based study, the CCST largely cuts and pastes estimates from a brochure by the Electric Power Research Institute, an industry group, issued some weeks earlier. The EPRI estimates appear incorrect in a number of regards. When two of the most central errors are corrected — the failure to take into account duty cycles of cell phones and microwave ovens and the failure to utilize the same units (they should compare everything in terms of average whole body exposure) the cumulative whole body exposure from a Smart Meter at 3 feet appears to be approximately two orders of magnitude higher than that of a cell phone, rather than two orders of magnitude lower. It is strongly recommended that CCST revise its Draft Report and conduct actual measurements of cell phone, microwave oven, and SmartMeter RF cumulative whole body power densities. If measurements aren't made, then rigorous calculations correcting for cell phone and microwave oven duty cycles and whole body exposures should be made. A summary figure below shows how rough estimates of the effect of those corrections suggest SmartMeters may produce cumulative whole body exposures far higher than that of cell phones or microwave ovens. 1 The assistance of two UCSC student research assistants, Bailey Hall and Catherine Wahlgren, in the preparation of this review is gratefully acknowledged. C� 1 0 jn.'NV. 018 P 40 35 30 25 20 15 10 5 0 e- g 94ep� `off � � a Maximum iimum Figure A. Comparison of Radio -Frequency Levels to the Whole Body from Various Sources in µW/cmZ over time [corrected for assumed duty cycle and whole body exposure extrapolated from assumed cell phone dose at ear]. 2 `' - • �' 019 A On 30 July 2010 Assemblymember Jared Huffman requested that CCST undertake an "independent, science -based study" of two questions: "whether FCC standards for SmartMeters are sufficiently protective of public health taking into account current exposure levels to radiofrequency and electromagnetic fields, and further to assess whether additional technology specific standards are needed for SmartMeters and other devices that are commonly found in and around homes, to ensure adequate protection from adverse health effects" Unfortunately, the Council draft report answers neither question. In September, Assemblymember William Monning and Mill Valley Mayor Stephanie Moulton -Peters joined in the request, asking in particular that CCST review the central issue associated with the current FCC standards, which are decades old and based solely on protecting against prompt thermal effects (heating of tissue) —that they fail to take into consideration long- term and cumulative exposures to these devices and potential non -thermal health impacts (e.g., latent cancers). Again, the Council's draft report provides little if any useful information or analysis of this matter. There is no mention or analysis of the specific studies that have suggested, for example, a cancer effect from RF exposure such as the large, international study funded by the cell phone industry, the Interphone study, that found a significant increase in brain cancers in people who used cell phones half an hour a day for ten years. Given the long latency period generally for solid cancers, such a finding gives pause as to what might be seen over the long term. Some other studies have suggested an increased risk of brain cancer on the side of the head where the cellphone is normally used. Other studies, however, have not found an effect. Given the nature of the request from the elected officials for a review of this critical scientific issue —whether there is the potential for non -thermal health effects from cumulative, long-term exposure to RF radiation —one would have hoped that there would have been a more detailed analysis of this question in the report. The report is candid, however, that at present the issue is unresolved. But it goes on to then say there is no basis for changing the FCC standards which are based only on prompt, thermal effects. One could equally well say there is no basis for maintaining the FCC standards, given the uncertainties about latent, non -thermal effects. What the CCST draft report does focus on, however, is the relative exposure from SmartMeters compared to other RF-emitting devices in common use. Here, again, the draft report disappoints. The elected officials cited claims made by the electric utility industry regarding safety of SmartMeters and purportedly relative low exposures compared to other common devices and requested "an independent, science -based study." However, the CCST draft report does not appear to include much if any independent work on the subject but rather merely pastes in a table taken from an 8-page pamphlet released a few weeks earlier by the Electric Power Research Institute (EPRI), an advocacy group for the .lc. l �. x � " •,.w � t electric power industry.2 This EPRI table and the graph made from it constitute the core of the CCST report, and is reproduced here as Figure 1. The EPRI pamphlet is not a peer -reviewed scientific study. It is a brief item for an advocacy group that is supported by industry. If the elected officials wanted the industry's views, it would have asked for them. Instead, it wished an independent, science -based study by an entity without the kinds of conflicts of interest EPRI has on this matter. But the CCST draft report is basically simply a cut -and -paste job from the EPRI brochure. Note also that the estimate for exposure from a single SmartMeter contained in the EPRI item and repeated in the CCST draft is not a measured value but estimated —how is not made clear. EPRI's measurements were for a bank of ten SmartMeters; it didn't measure one alone but somehow estimated for it, despite the difference in how exposure falls off from one versus ten. The latter is inverse of the distance, the former inverse square of the distance. One presumes the electeds wanted actual measured values from an independent source, not a calculated value from the electric industry, without even an explanation of how it is was calculated and without independent verification. CCST does correct one error made in the EPRI brochure whereby it reduced the presumed power density estimates for the SmartMeter by duty cycles of 1 and 5%. CCST rightly indicated that future duty cycles could be much higher as "new applications and functionality are added to the meter's communication module in the future." For this reason, it assumed a 100% duty cycle in its calculations. HOWEVER, CCST did not correct numerous other apparent errors from the EPRI brochure when it adopted EPRI's values. For example, for cell phone exposures, CCST did not correct for the presumed duty cycle of the cell phone (which CCST indicates on average is 1%). Nor did it convert the EPRI cell phone power density estimate into comparable units. EPRI (and thus CCST) compared a whole body average exposure to SmartMeter radiation to peak exposure to the ear for the cell phone. One needs to compare apples and apples, or whole body exposures to whole body exposures. Comparing the peak dose to the ear from a cell phone, when the rest of the body gets vastly less radiation, with a whole body exposure where all organs get roughly the same dose from a SmartMeter, doesn't seem appropriate. If there is a cancer effect, it is likely associated with the total RF energy the body receives. Similar apparent errors were made in the comparison to microwave ovens. Again, the duty cycle of the microwave oven is ignored. It is used perhaps fifteen minutes a day, and it is unlikely people are 2 feet away from the device for the full time it is on. Its "down time" must be included if one is looking, as requested by the elected officials, at potential cumulative, long- term exposures. 2 The EPRI brochure was apparently released on November.17, providing little if any time for serious review of it by CCST prior to the release a few weeks later (with the holidays intervening) of the CCST report on which it was based. 4 it ..a 021 [Additionally, the values given for microwave oven exposures by EPRI and adopted without changed in the CCST draft report seem questionable. Three references are given in the EPRI report, although for which claim each applies is not made clear. The first reference, the ICNIRP report, does not in fact give measured values for microwave ovens, but instead reports what the legal limit for leakage is, generally reported to be orders of magnitude above what typical exposures from microwave ovens really are. The second reference is to a 1978 paper by PG&E's consultant, RA Tell. That paper CCST has not made available for review, but it is over three decades old, and thus of little relevance to today's microwave ovens. The third reference is merely to a personal communication with Tell, without any information as to the content of that communication. When one checks the values reported by EPRI and uncritically adopted by CCST, it appears that the first value, 5 mW/cm2 at 2 inches from the device, is in fact not a measured value of typical exposures but the vastly higher legal limit for leakage. The literature in fact indicates that 50% of microwave ovens produce less than 0.062 mW/cm2 at 5 cm, or two orders of magnitude below the value reported by EPRI and reproduced by CCST without question. See, e.g., R, Mathes, "Radiation Emission from Microwave Ovens," Journal of Radiation Protection, Vol. 12, No. 3, September 1992. One presumes the leakage rate has been reduced even further since then.] One recognizes that if one is comparing to FCC existing standards based solely on acute, thermal effects that duty cycle might be treated differently. But if there is a cancer effect, which is what the electeds asked CCST to study, a likely key aspect of the dose -response relationship is the cumulative whole body dose. For ionizing radiation, about which I have spent much of my career, the determining factor is largely how much radiation energy the body has absorbed. [There are of course other factors, such as the relative biological effectiveness (RBE) of different types of ionizing radiation and varying sensitivity of different organs.) So, if the question were how does SmartMeter and cell phone RF radiation compare to FCC limits, duty cycle may be treated in a different fashion. But since the question is what if FCC limits, based solely on thermal effects, may be inadequate to protect against cancer and other non -thermal effects, then the duty cycle —which determines the cumulative total exposure received —and whole body exposure must be factored in. My fundamental recommendation is that the draft report should be revised to correct for these two factors. I have taken the liberty, with the help of two student assistants, to demonstrate the potential impact of some of these corrections. Figure 1 is simply the CCST Figure 1, which in turn was largely taken from the estimates in the EPRI pamphlet. Units were simply converted by CCST from mW/cm2 to µW/cm� and it corrected the duty cycle for the SmartMeter, otherwise the data are unchanged from EPRI's estimates. One will note that the estimated exposure from the cell phone is just to the ear, in direct contact with the cell phone, whereas the other comparisons, including the SmartMeter, are for whole body exposures, and that the duty cycle of the cell phone and microwave oven were not corrected. In other words, the chart compares a SmartMeter that is always on with a cell phone or microwave oven when they are being used, even though 99% of the time they are not in use. This overestimates the cumulative exposure by a factor of 100 for the cell phone and microwave oven, and dramatically skews the comparison. ,,� Figure 2 fixes the error regarding duty cycle for the cell phone and microwave oven, markedly altering the comparison. The minimum cumulative exposure over time from the SmartMeter at 3 feet is 80 times the minimum cumulative exposure from the microwave oven and four times the minimum cumulative exposure from the cell phone, for example. This does not involve any correction of the while -on exposure values for either the cell phone or microwave oven, only the duty cycle factor. Figure 3 provides a very rough approximation of the correction of the cell phone at the ear estimate to a whole body estimate so it is comparable to the whole body estimate for the SmartMeter. It should be stressed that neither this estimate nor that in Figure 4 using a different approach is intended to be a definitive figure, but is intended to be exemplary of the kind of change to the comparison a detailed analysis may produce. It is my recommendation that CCST carefully measure, or at minimum thoroughly calculate, the average power density over the whole body from a cell phone held at the ear. We here have made two very rough estimates just to make the point what afar more detailed analysis. may show. The value used for the peak cell phone power density for a cell phone held to the ear in the CCST draft report is taken directly from the EPRI pamphlet, without apparent independent review or correction. According to p. 6 of the EPRI pamphlet, the value it gives apparently is not a measured value but an estimate. How the estimate was arrived at is not detailed in the brochure. All that is said is in footnote 1,.`Based on a 3-inch 250MW antenna emitting in a cylindrical wavefront " A quick calculation to try to reproduce what EPRI must have done indicates that if it merely assumed that all of the energy from a 250mW cell phone was transmitted by holding directly against the ear into a circular area with a 3 inch diameter, the power density in that small circular area around the ear would be 5 mW/cm2. That is precisely the upper value given by EPRI in its table. We don't know if that is what EPRI did, since it doesn't tell us what it did and CCST does not appear to have tried to confirm the asserted value. But in any case, 5 mW/cm2 from a 250mW cell phone would indeed appear to require that that power be deposited solely in that very small circular area. Averaging over the full potentially exposed surface area of the body (presuming only half the body surface could be exposed to the cell phone from any one angle), the whole body exposure would be approximately on average 0.25 mW/cm2 given the maximum value to the ear of 5 mW/cm2 put forward by EPRI and the CCST draft report and correcting as well for the duty cycle. The SmartMeter thus would produce 160 times more cumulative whole body exposure than the cell phone assuming this estimate for whole body exposure. This is shown in Figure 3 3 3 In these graphs we have used the values for a microwave oven at 2 feet put forward by EPRI and repeated by CCST even though, as discussed above, they appear questionably high. Note that measured values indicate typical measured microwave oven RF fields 5 cm from the oven are in the range of 0.062 mW/cm2, whereas the EPRI estimates used by CCST are for comparable values 2 feet away, which, if the exposure were drop by inverse square of the distance, should be very much lower. It is unclear whether EPRI is actually referring to measured values or to the legal limits, the latter being irrelevant in this context. ';',023 Since the EPRI estimate for cell phone peak power density at the ear is unexplained as to its derivation, we have also made a very rough estimate of whole body exposure from a cell phone from an independent line of calculation. Taking the values EPRI (and thereby CCST) put forward for exposure at three feet from a 250 mW SmartMeter, and noting that EPRI assumed the cell phone would also be 250mW, one can make a rough estimate of power density for the whole body from a cell phone held at the head. The exposure at one's waist would be approximately three feet from the source, just as in the assumed case of the SmartMeter. Presuming that the dose falls off as the inverse square of the distance, a very rough estimate of power density averaged over half the surface of the whole body, and taking into account duty cycle, yields a cumulative cell phone whole body power density of roughly 0.75 µW/cm2. Using this way of estimating suggests the SmartMeter would produce 50 times the cumulative whole body exposure as a cell phone. The results of this comparison are found in Figure 4. We are here using the duty cycles proposed by CCST itself in its draft report. We recognize other duty cycles can be considered. Perhaps one should presume maximum duty cycle in the future for SmartMeters, when all additional features are incorporated, might be only 50%, for example. But other factors also need to be considered, including exposures from banks of SmartMeters attached to an apartment building, and the exposure from all the devices within a home that are planned to be constantly communicating by RF with the SmartMeter." It is strongly recommended that CCST revise the report and perform actual measurements. At minimum, revised calculations that correct for duty cycle and cumulative whole body exposure should be conducted. " It is noted that EPRI claims a diminished dose in back of a bank of SmartMeters, but it is unclear that that claim can be relied upon. The particulars of the specific test done by EPRI, in connection with the manufacturer of the devices (who has an obvious interest in findings suggesting safety), are not spelled out. Furthermore, it is unclear how the SmartMeter can communicate with devices inside the home —the key purpose —if the back of the device blocks most of the signal from getting through. ,,.. - 024 I �------ '' 3500 -- 3000 2500 _ 2000 1500 00 -�. 1000 - 200 - 500 +40 __....._'.. dP— win 0 -AMW - ` ............. ANW 4 2 0 OS Maximum o Minimum r°c &A 40 I I Figure 1: Graph from CCST Report in µW/cm=—uncorrected for whole body exposure or duty cycle ., 025 i w �30__ 50 45 40 40 40 35 30 25 20 15 10 5 -Aip 0 Maximum Ae A F NlzPQ Figure 2. Comparison of Radio -Frequency Levels from Various Sources in i.LW/CM2 over time [corrected only for assumed duty cycle). ".% 026 40 35 30 25 20 15 30 5 0 d�o- O°et` Y bpi' 00 a a� OQr e lb NO wee 0`oaa Qa Q� Maximum iimum Figure 3. Comparison of Radio -Frequency Levels to the Whole Body from Various Sources in µW/cmz overtime [corrected for assumed duty cycle and whole body exposure extrapolated from assumed cell phone dose at ear]. 027 40 40 35 30 25 20 is 40 10 2 4 5 0.5 0 Maximum AWV O45 7 Minimum ed Mq, , A' _\$ 0" Figure 4. Comparison of Radio -Frequency Levels to the Whole Body from Various Sources in VW/CM2 over time [corrected for assumed duty cycle and whole body exposure extrapolated from EPRI/CCST SmartMeter estimated levels at 3 feet]. 1.., 028 PRESENTATION: I La Quinta Public Library Quarterly Report January 2011—March 2011 Circulatinn The La Quinta Public Library circulated 68,572 items in the Third Quarter of 2010- 201 1. This comes out to an average of 102 items checked out every hour that the Library -was open. Public Computer Usage During this quarter, 10,995 computer sessions were logged on the Library's 28 public access computers. Public computers are used by all ages and provide an important connection for tourist and short-term visitors to. keeping in touch with work, family, or checking travel arrangements. While it is not possible to collect statistics on the usage of the Library's free Wi-Fi access, staff has observed a large increase in laptop computer use in the Library. Door Count This quarter 62,306 people visited the Library to check out materials, read newspapers and magazines, utilize the Internet service, attend programs, and purchase books from the Friends of the Library Book Store. On average, 93 people came into the Library every hour. New Borrowers La Quinta Library registered 1,238 new borrowers during the third quarter. An additional 409 people came into the Library to replace lost cards. Weekly Programming A Preschool Storytime for children 3'/2 to 5 years old was held thirteen Tuesday mornings during the quarter. A total of 556 children attended. A weekly On -the -Lap Storytime Program for parents with babies and toddlers was held prior to the Preschool Storytime. The thirteen programs were attended by 666 participants. The weekly Conversational Spanish Class is held Monday evenings in the Library Classroom. The ten sessions were attended by 148 adult students. Monthly Programs The monthly, Baby Play and Sign program is for babies and their parents with a focus on family communication and interaction using Baby Signs. Three programs were presented with 62 participants. •• 029 La Quinta Public Library Quarterly Report January 2011 — March 2011 An Evening with Friends is a monthly adult program sponsored by the Friends of the Library. Two hundred sixty-five people attended the last three programs in the series. I The Library offers two different monthly book discussions with groups. The six meetings were attended by 43 people. An Afternoon with Teens was part of a series of programs offered through a special grant from the California Council for the Humanities. The goal is to make a difference through meaningful, small group, discussions. Twenty teens attended three discussion sessions. Special Programs Special No -School -Today Movies occur on days when the Library is open and students are out of school. In February, 47 people enjoyed dinosaur movies to tie in with the opening of the Jurassic Encounter exhibit at the La Quinta Museum. On .March 2, the Library hosted a special birthday party for Dr. Seuss. One hundred fifty people attended the program. Volunteers During this quarter 55 volunteers donated 616 hours of time. Volunteers worked in the book store, shelved returned books in the Library, helped with programs, and performed a myriad of other tasks. Friends of the Library The La Quinta Friends of the Library continue to offer support in all areas. The Friends provide funds for all special programs, including the movie license, equipment, and refreshment for all Library movie programs. Networking with other City Agencies During this quarter the Library provided a monthly preschool story time at the Museum on the first Wednesday of the month. The joint Library and Senior Center mystery book club finished its second season in March. The Library provided books and discussion topics with the Senior Center providing speakers to give background on the subjects. The Library taught two sessions of Introduction to Computers. These classes help prepare students for the classes taught by Andy Lorenz at the Senior Center. A total of six classes were held at the Library with 70 people attending. .. 030 La Quinta Library Expenditures July 1, 2010 - March 31, 2010 Library Contract Expenditures (LSSI) Labor & Benefits Materials, Net of Donations Automation & Courier Other Direct Costs Zone Administration Shared Costs 7/1/10 to 9130/10 10/1/10 to 12/31/10 1/1/11 to 3/31/11 Total Year to Date $ 106,178.87 $ 97,408.21 $ 100,614.84 $ 304,201.92 $ (87.36) $ 151.64 $ 64.28 $ 23,192.49 $ 25,796.82 $ 19,578.88 $ 68,568.19 $ 5,998.81 $ 3,404.26 $ 6,724.50 $ 16,127.57 $ 6,843.58 $ 6,394.99 $ 7,286.85 $ 20,526.42 S 10,296.95 $ 9,622.01 $ 13,308.60 $ 33,227.56 Library Contract Expenditures $ 112,510.70 S 142,538.93 $ 147,665.31 $ 442,714.94 County Expenditures Personnel Insurance Miscellaneous Expenses Miscellaneous Maintenance Charges Special Program Expenses Accounting Costs Travel and Conferences Support Services 7/1/10 to 9/30/10 10/1/10 to 12/31/10 1/1/11 to 3/31/11 Total Year to Date $ 837.96 $ 1,938.62 $ 1,692.92 $ 4,469.50 $ 12,852.48 $ 3,272.78 $ 3,275.02 $ 19,400.28 $ 4,151.30 $ 829.65 $ 4,099.54 $ 9,080.49 $ 314.28 $ 314.28 $ 11,009.78 $ 7,753.67 $ 4,117.32 $ 22,880.77 $ 115.90 $ 47.24 $ 82.77 $ 245.91 i $ 15.29 $ 15.29 $ 5,023.91 $ 49,050.09 $ 38,477.23 $ 92,551.23 County Expenditures $ 33,991.33 $ 62,892.05 $ 52,074.37 1 $ 148,957.75 TOTAL EXPENDITURES $ 186,502.03 $ 205,430.98 1 $ 199,739.68 $ 591,672.69 O3I La Quinta Museum Quarterly Report January 2011—March 2011 Visitors The 5,377 people who visited the museum this quarter ranged from school - aged children to adults. This represents a doubling of attendance for the same quarter of the previous year. Exhibits The exhibit on display this quarter was Jurassic Encounter, which opened in February. Three hundred seventy-nine people attended the opening reception, which represents the highest attended event and exhibit in the museum's history. Jurassic Encounter features robotic dinosaurs, hands-on activities and actual fossils. Programming Preschool Story Time for children ages 3 5 was held the first Wednesday in January and March for a total of two sessions. One hundred twenty-one children attended these programs. These story time programs were a collaboration between the La Quinta Museum and the La Quinta Library. The museum's other special events attracted a total of 377 visitors. Topics of these programs included: First Friday with Brenda Warren, the Travel Channel's Don Wildman, Black History month celebration featuring the E&J Movement, and First Friday featuring Broadway singer Patricia Welch. The La Quinta Museum hosted five field trips from local elementary and high schools this quarter with a total of 126 children visiting the facility. OSHER classes resumed at the La Quinta Museum bringing 424 visitors to the museum. Volunteer Hours During this quarter five volunteers donated 82 hours of their time to the Museum. Volunteers greeted visitors at the reception desk and helped set up for the special events held at the Museum. Gift Shop Total sales in the gift shop this quarter was $5,915.51. This represents a quadrupling of gift shop sales for the same quarter of the previous year. The gift shop added new merchandise including: plush dinosaurs, fossils, dinosaur figurines, magnets, and more. 032. La nuinta Museum Expenditures July 1, 2010 - March 31, 2011 Museum Personnel Costs Salaries 711110 to 9/3 10/1/10 to 1 12/31/10 1/1/11 to 3/31/11 Total Year to Date $ 29,625.00 S 29,625.00 S 29,625.00 $ 88,875.00 Total Personnel Costs $ 29,625.00 S 29,625.00 S 29,625.00 S 88.875.00 Museum Programming Costs Special Speaker Printing 7/1110 to 9/30/10 10/1/10 to 12/31/10 1/1/11 to 3/31111 Total Year to Date $ 22.50 $ 8,197.16 $ 9,002.57 $ 17,222.23 $ 672.36 1 $ 843.95 $ 3,684.70 $ 5,201.01 Total Programming Costs $ 694.861 $ 9,041.11 1 $ 12,687.271 $ 22,423.24 Other Costs Travel Supplies Miscellaneous 711/10 to 9/30/10 10/1/10 to 12131/10 111/11 to 3/31111 Total Year to Date $ 166.50 $ 314.71 $ 1,707.19 $ 2,188.40 $ 24,592.87 $ 22,360.92 $ 16,885.95 $ 63,839.74 $ 9,565.18 $ 521.64 $ 3,830.52 $ 13,917.34 Total Other Costs $ 34,324.56 $ 23,197.27 $ 22,423.66 $ 79,946.48 TOTAL EXPENDITURES $ 64,644.41 1 $ 61,863.38 1 $ 64,735.93 1 $ 191,243.72 n COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Approval of Demand Register Dated June 7, 2011 RECOMMENDATION: Approve Demand Register Dated June 7, 2011 BACKGROUND: Prepaid Warrants: 91889 - 919231 91924 - 919581 Voids} Wire Transfers} P/R 36341 - 36347 P/R Tax Transfers} Payable Warrants: 91959 - 92070) FISCAL IMPLICATIONS: Demand of Cash -City Demand of Cash -RDA Demand of Cash - HA *John. Falconer, Finance Director 109,748.97 132,919.95 (2,546.31) 5,113,934.88 222,050.52 64,179.16 2,006,054.07 $7,646,341.24 $2,553,550.08 $5,092,791.16 $0.00 AGENDA CATEGORY: BUSINESS SESSION CONSENT CALENDAR STUDY SESSION PUBLIC HEARING 0,34 CITY OF LA QUINTA BANK TRANSACTIONS 5/10/11 - 5/24/11 5/10/11 WIRE TRANSFER - SERAF SHIFT 5/12/11 WIRE TRANSFER - REMAX/PROP ACQ 6/13/11 WIRE TRANSFER - ICMA 5/13111 WIRE TRANSFER - PERS 5/13/11 WIRE TRANSFER -LQCEA 5114/11 WIRE TRANSFER -SUPERIOR PRESS 5117/11 WIRE TRANSFER -TASC 5/17/11 WIRE TRANSFER - LANDMARK TOTAL WIRE TRANSFER OUT $4.855,193.00 $76,158.53 $16,372.25 $54,148.18 $160.00 $57.53 $1,462.33 $110,383.06 $5,113,934.88 ».: .. Q35 e Y o Z O Wm In Y Y Y o N W W YN N N N N< A Y O WO PC < e < I A M M e 0�0 mO Ao 010 AAAO UIWWOTVITJaDJNO 00 AO DO Ym1YAA O UI O NM NM N O A A A O J Y Y m O J b m V A 0 0 0 Y O r 0 A O Z z I 1 0 m A mm IDo AA Am li Pw mYYOrOYbVI WI-IANO YO Kw 1-10 1 Z<OI <InL V mY J10 YO YO em.Dm AbIOAOmAO. 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IOOOyA rr N r N W N \ m m z C \ N O < < O N o D O < V H a m m H MO A 00 G M CC O O O Y 22 o C I O 0I p S O m m w V I � A .000.m I O I S S S r N N e 1AOm IZZZNW V e 1 1 N I (]f�OOW OnnwN F• 1 000 1 HHHH O 1 A A MM r r r✓ O IOH Irrr < A ImT Insao C O I 1 O T u1 an on A � �20 tl o c z N o A ImNz m D ac V r Z H 1� N UI I T C O n m o o I H m c 1 H 1 I M D Im T �n I N A fl H O O < H L C t e O C z e C < O \ m N m e V e O. Vr \ no nn o H• < O m a G as mC a < rH o m mz Y z ti w O C a a 0. O T O O OM O 0 2 3.1 o m �D N no mr 0 0 M m Jo 00 rT H O A < N A am Am tit S z M �z mo a om no JO MCA \r N N O Z o. DD I S� M m 0 N S y C I < n T m m r I D A I NH m tiZ 2H < S ti0 m A H D zM N Z C S m m A A m V 0 A o -1 H N Z n C \ S V A mD mn m0' 12 Am N ao Y H C Z Z J n- N H O o I I m 1 m .- C 61 ..; COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Approval of an Amendment to the Banking Services Contract with Wells Fargo Bank RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: 7' STUDY SESSION: PUBLIC HEARING: Approve an Amendment to the Banking Services Contract with Wells Fargo Bank from January 1, 2012 through December 31, 2014 and authorize the City Manager to execute the Amendment. FISCAL IMPLICATIONS: Bank fees are estimated to be approximately 25% less than the existing charges which represent an annual savings of $5,076 per year or $15,230 over the next three (3) years. In addition, Wells Fargo has agreed to apply the new fees for the time period from July 1, 2011 through December 31, 2011 under the current agreement. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The investment policy requires that the City consider a Request for Proposal for banking services at least every four years if considered necessary. In May 2011, staff brought forward to the Investment Advisory Board (IAB) a proposed contract for banking services from Wells Fargo Bank. At the conclusion of the Wells Fargo presentation, the Investment Advisory Board members voted four ayes and zero nays to forward to City Council for their recommendation to retain Wells Fargo as the City's bank. Staff is in support of the IAB recommendation. The recommendation was based upon past service, scope of banking products and size, the time and effort of conversion, and Wells Fargo reducing the bank fees for the next three (3) and a half years. The proposed amendment to the contract between Wells Fargo and the City has been reviewed by the City Attorney (Attachment 1) and a schedule of bank fees has been included as Attachment 2. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve a Banking Services Contract with Wells Fargo Bank from January 1, 2012 through December 31, 2014 and authorize the City Manager to execute the Amendment; or 2. Do not approve a Banking Services Contract with Wells Fargo Bank; or 3— Provide staff with alternative direction. Respectfully submitted, mw,�. �,A +dam John M. Falconer, Finance Director Approved for submission by: 11� Thomas P. Genovese, City Manager Attachments: 1. Wells Fargo Contract 2. Schedule of Fees •- C63 A 1 I AC;t1MLN I '1 May 18, 2011 John M falconer Finance Director City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Re: Extension of Term of Banking Services Dear Mr. Falconer, The City of La Quinta ("City") has received an offer from Wells Fargo Bank, N.A. ("Bank") to extend the term of its current contract for banking and treasury management services for an additional three-year period. The current term of the contract expires December 31, 2011. The new term will expire December31, 2014 ("Term"). The parties agree that the pricing for the services set forth in Exhibit A attached hereto shall be in effect beginning.July 1, 2011 and remain for the entire Term unless amended in writing signed by both parties. Notwithstanding anything to the contrary herein, the pricing for any additional services not listed in Exhibit A shall be provided by Bank at then -current price unless otherwise agreed to between the parties. Please sign the acknowledgment below and return it to me. Upon receipt of the executed acknowledgment, the agreement set forth herein shall become effective. Regards, Lynn Love Vice President ACKNOWLEDGED AND ACCEPTED BY: City of La Quinta By: Name: Title: Date: �� 064 A l l AUHMEN I Z EXHIBIT A Wells Fargo Treasury Management Proposal City of La Quinta Service Description Unit Price GENERAL ACCOUNT SERVICES ACCOUNT MAINTENANCE W/ CHK RETURN 10.00000 ACCOUNT VIAINTENANCE-CHEXSTOR 10.00000 ZERO BALANCE MASTER ACCOUNT MAINT 0.00000 ZERO BALANCE MONTHLY BASF, 15.00000 DEBITS POSTED 0.05000 CREDITS POSTED 1.10000 DDA STATEMENT - PAPER 0,00000 DESKTOP DEPOSIT CREDIT POSTED 1,00000 WELLST.X ACCESS CODE MONTHLY BASE 3.00000 DEPOSITORY SERVICES CASH DEP/$1 VER AT TELLER WINDOW 0.00130 CEO RETURN ITEM RETRIEVAL -IMAGE 0,50000 RETURN ITEM • CILARGEBACK 3.50000 RETURN ITEM SPECIAL INSTRUCTIONS 0.25000 RETURN ITEM PHONE NOTIFY MTHLY BASE 10.00000 RETURN ITEM SPECIAL INST MTHLY BASE I.00000 CASH VAULT CURRENCYICOIN DEPOSITED 0.00120 CASH VAULT MONTHLY BASE 0.00000 DEPOSITED CHECKS - ON US 0.08500 DEPOSITED CHECKS - LOCAL CLEARING 0.08500 DEPOSITED CHECKS - REGIONAL. 0.09900 DEPOSITED CHECKS - TRANSIT 0.08500 DEPOSITED CHECKS CASH VAULT - ON US 0.09000 DEPOSITED CHECKS CASH VLT•LOCAL CLR 0,09500 DEPOSITED CHECKS CASH VAL-LT-REGION 0.11500 DEPOSITED CHECKS CASH VAVLT-TR.ANSIT 0,12900 DESK'TOPDEPOSIT-ATARGO DEPOSIT ITEM 0.08000 DESKTOP DEPOSI'T-NON WFARGO DEP ITEM 0.08500 PAPER DISBURSEMENT SERVICES PAYEE VALIDATION STANDARD -ITEM 0.02000 WELLSIMAGE PAID CHECK PER ITEM 0.06000 POSITIVE PAL' EXCEPTION - CEO I.MAGE 0.50000 ARP CHECKS PAID - FULL RECON 0.11000 ONLINE I.MAGE VIEW < 90 DAYS • ITEM 3-50000 POSITIVE PAY EXCEPTION CHECKS RETND 2.50000 POSITIVE PAY MONTHLY BASE 0.00000 PYMT AUTH VLAX CHECK MTHLY BASE 0.00000 STOP PAYMENT - ONLINE 5.00000 WELLSINLAGE PAID CHECK MONTHLY BASE 0.00000 065 Wells Fargo Treasury Management Proposal City of La Quinta Service Description Unit Price CHECKS RETURNED W/STATEMENT-ITEM 0.05000 DDA CHECKS PAID 0.11000 WELLSIMACE PAID CHECK PER CD 30.00000 CEO SEARCH 0.95000 PAPER DISBURSEMENT RECON SERVICES ARP REGISTER INPUT CEO - ITEM 0.05000 ARP AGED ISSUE RECORDS ON FILE -ITEM 0.04000 ARP FULL RECON-ITEM 0.04000 ARP MONTHLY BASE - FULL 50.00000 ARP OPTIONAL REPORTS 6.00000 ARP OUTPUT - TRANSMISSION 10.00000 ARP STATEMENT MONTHLY BASE CEO 0.00000 POSITIVE PAY EXCEPTIONS - ITEM 0.50000 GENERAL ACH SERVICES ELECTRONIC CREDITS POSTED 0.08500 ACH ORIGINATED - ADDENDA REC 0.03000 ACH REVERSAL - ITEM 35.00000 ACH RECEIVED ITEM 0.03000 ACH RECEIVED ITEM 0,03000 INTERNET ACH BASE FEE 25.00000 INTERNET ACH BATCH RELEASE 4.00000 INTERNET ACH ONE DAY POEM 0.25000 INTERNET ACH TWO DAY ITEM 0.15000 WIRE & OTHER FUNDS TRANSFER SERVICE WIRE SECURITY MONTHLY BASE 0.00000 WIRE IN DOMESTIC 5.00000 WIRE TEMPLATE STORAGE MONTHLY BASE 0.00000 WIRE -OUTGOING DOMESTIC -CEO 5.00000 INFORMATION SERVICES CEO PREV DAY SUBSCRIPTION DETL ITEM 0.10000 CEO PREV DAY SUBSCRIPTION MTHLYBASE 30.00000 DESKTOP DEPOSIT REPORT MTHLY BASE 30.00000 INVESTMENT/CUSTODY SERVICES SWEEP STAGECOACH MUTUALFND ELECTNIC 0.00000 SWEEP STAGECOACH MUTUAL FND MO BASE 0.00000 INTERNATIONAL SERVICES DEPOSITED CHECK CANADIAN 5.00000 .•N 066 ce:yl 4 1wCt�w COUNCHARDAMEETING DATE: .tune 7, 2011 ITEM TITLE: Approval of a One -Year Contract Extension with Vintage Associates for the Park Landscape Maintenance Services Contract for Fiscal Year 2011- 2012 RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: 3 611-1) W&IJ X-1-KIM PUBLIC HEARING: Approve a one-year contract extension for the Park Landscape Maintenance Services Contract, Project No. 2009-20 for Fiscal Year 201 1-2012 with Vintage Associates for a total contract amount of $536,700 and authorize the City Manager to execute the agreement. FISCAL IMPLICATIONS: Appropriations for the Park Landscape Maintenance Services Contract (Attachment 1) will be proposed in the Draft Fiscal Year 2011-2012 budget in Account Nos. 101- 3005-451.34-04 (Parks), 101-7004-431.34-04 (Landscape and Lighting District), 101-3004-451.30-96 (Library), and 101-3006-451.34-04 (Museum). CHARTER CITY IMPLICATIONS: The Park Landscape Maintenance Services Contract is funded through the General Fund, the Landscape and Lighting and District (LLD) Fund, and the Library Fund; therefore, prevailing wages are not required for this contract. BACKGROUND AND OVERVIEW: On May 4, 2010, the City Council awarded a contract to Vintage Landscape, a division of Vintage Associates, Inc. for the Park Landscape Maintenance Services Project No. 2009-20 in the amount of $388,380. This contract is for a period of one year with a provision allowing the City to extend the contract up to four (4) additional one-year extensions, not to exceed a total contract length of five years. '..4 C67 On June 15, 2010, City Council approved Contract Change Order No. 1 in the amount of $121,920 for the Bear Creek Trail and Seasons Retention Basin to be maintained under the Parks Maintenance Contract. These areas had been maintained under the LLD contract. Due to the recreational uses at these facilities, they were moved under the Park Maintenance Contract while retaining the funding in the LLD. On September 21, 2010, City Council approved Contract Change Order No. 2 for the maintenance of the sports fields at Colonel Paige Middle School under the terms of the May 18, 2010 Joint Use Agreement with the Desert Sands Unified School District. The annual cost for the maintenance is $26,400. The total for this contract is $536,700 and staff is recommending a one-year extension with no cost increase. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve a one-year contract extension for the Park Landscape Maintenance Services Contract, Project No. 2009-20 for Fiscal Year 2011-2012 with Vintage Associates for a total contract amount of $536,700 and authorize the City Manager to execute the agreement; or 2. Do not approve a one-year contract extension for the Park Landscape Maintenance Services Contract, Project No. 2009-20 for Fiscal Year 201 1-2012 with Vintage Associates for a total contract amount of $536,700; or 3. Provide staff with alternative direction. Resp ctfully submitted, Edie Hylton . Community Services Director Approved for submission by: Thomas P. Genovese, City Manager Attachment: 1. Contract Change Order No. 3 068 4 4 a" ATTACHMENT 1 Sheet 1 of 1 CONTRACT CHANGE ORDER NO. 3 PROJECT NO. 2009-20 CONTRACT: Park Landscape Maintenance Services CONTRACTOR: Vintage Associates, Inc. rr:aaararwwawa++awarrrrrrraaarrwwwww+rwwwa+r+rrrar+rarrrrarra+rrrrrr+aa+wwwww++w+rrwwwwrwraraaaarrr Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. aww+w++rarrarrrrrrar:awawwaa++a+++a+awwwrrrrrrrrrrrrrrrrrrrrrrrrrrraraar+rwrt++rr++wrwwrw+wwwrwawa• DESCRIPTION OF CHANGES EFFECTIVE JULY 1, 2011: Contract extension for Fiscal Year 2011-2012. No change to the contract price. *#t*44**444*tw4###*#t*t***t*****44*#trw*#*ww###w#######**##*##*#4#*###4*#4444*#### Original Contract Amount $388,380 Change Order Nos. 1 through 2 $141,720 Add This Change Order No. 2 $0 Revised Contract Total $530,100 By reason of this contract change order the time of completion is adjusted as follows: The contract completion date is June 30, 2012. rrraaww+a++aw+arrrrrrawwww+rw+rwar+aaarrrrrwwar:wrw+rrw:wa+awwaaaaaaaarrarrarrrrrrrrrrrrrrrrrarrrrr Submitted By: Approved By: Date: rrrrrraaawwa+arrrrrraawr++:ar+rrarrrrraaa+wr++rrarr+a*rrrrrraa+ww+aaaa++rawww+rrrarrrrrwrararrrwawr We, the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, perform afllabor, except as may be noted above, and perform all services necessary to complete the above specified work, and hereby accept as full payment the amount shown above, which includes all direct and indirect overhead expenses for any delays. Accepted Contractor: Vintage Associates, Inc. Title: Date: •0.0 C 69 T44f 4 4 a" COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Authorization of Overnight Travel for One Member of the City Council to Attend the League of California Cities Revenue and Taxation Committee Meeting to be Held June 17, 2011 in Sacramento, California RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: l STUDY SESSION: PUBLIC HEARING: Approve authorization of overnight travel for Council Member Terry Henderson to attend the League of California Cities Revenue and Taxation Committee meeting to be held June 17, 2011 in Sacramento, California. FISCAL IMPLICATIONS: The Fiscal Year 2010-2011 Budget has allocated funds for travel, training, and meetings for the City Council. Funds for this meeting attendance are available in the Legislative Program's Travel, Training, and Meeting account (#101-1001-411.51-01). Expenditures for this meeting are estimated as follows: Travel (parking, flight and ground transportation) $260 Hotel (one night) $115 Meals $ 75 TOTAL $450 CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The League of California Cities Policy Committees meets four times each year. Council Member Henderson sits on the Revenue and Taxation Policy Committee. 070 FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve authorization of overnight travel for Council Henderson to attend the League of California Cities Revenue and Taxation Committee Meeting to be held June 17, 2011 in Sacramento, California; or 2. Do not approve the request for overnight travel; or 3. Provide staff with alternative direction. Respectfully submitted, Wanda Wise -Latta, Executive Assistant Approved for submission by: ' Thomas P. Genovese, City Manager Attachment: 1. 2011 League of California Cities Policy Committee Schedule �+ 071 l LEAGUE I O ATTACHMENT 1 CITIES 2011 POLICY COMMITTEE SCHEDULE Meetings begin at 10:00 a.m. and generally conclude by 3:00 p.m. January 20-21, 2011 Sacramento Convention Center, 1400 J Street, Sacramento 95814 *These committees will meet at League Office, 1400 K Street, Sacramento 95814 Thursday. January 20. 2011 *Community Services Employee Relations Housing, Community & Economic Dev Public Safety Friday. January 21. 2011 *Administrative Services Environmental Quality Revenue and Taxation Transp., Comm. & Public Works April 7-8. 2011 Doubletree Hotel, 222 N. Vineyard Avenue, Ontario 91764 Thursday, April 7. 2011 *Community Services Employee Relations Housing, Community & Economic Dev Public Safety Friday, April 8. 2011 *Administrative Services Environmental Quality Revenue and Taxation Transo., Comm. & Public Works June 16-17, 2011 Sacramento Convention Center, 1400 J Street, Sacramento 95814 *These committees will meet at League Office, 1400 K Street, Sacramento 95814 Thursday. June 16, 2011 Community Services *Employee Relations Housing, Community & Economic Dev Public Safety Friday, June 17, 2011 Administrative Services *Environmental Quality Revenue and Taxation Transp., Comm. & Public Works ANNUAL CONFERENCE September 21-23, 2011, San Francisco Moscone West Policy Committee Meetings, TBD - Wednesday, September 21 mmdtoe members should be aware that lunch is usu*W served at these meetings. The state's Fair Polllical Practices rs the position that the value of the lunch should be reported on city ohicials'statement of economic Interests form. Because of tovide at these meetings, the League takes the position that the value of the lunch should be reported as income (in return for -e commiffee) as opposed to a gift (note that this is ito Income for state or federal Income tax purposes --just Political Reform ooses). The League has been parsisten4 but unsuccessful, In attempting to Mange the FPPC's mind about this interpretation. we need to del you know about the issue so you can determine yourcourse of action. !f you would prefer not to have to repod the value of the lunches as income, we will let you know the amount so you can reimburse the League. The lunches lend to run In the $30 to $45 range. To review a copy of the FPPCa most recent letter on this issue, please go to the League's Websae., www.cacities.oraFPPCIeffar hAwroroe Poliq COmmate DouxnanlsN 12011KRDC.doc 072 AGENDA CATEGORY: COUNCIL/RDA MEETING DATE: June 7, 2011 BUSINESS SESSION: _ ITEM TITLE: Authorization of Overnight Travel for One Member of the City Council to Attend the National CONSENT CALENDAR: _ League of Cities Board of Directors Meeting to be Held STUDY SESSION: _ July 7-9, 2011 in Charlotte, North Carolina PUBLIC HEARING: RECOMMENDATION: Approve authorization of overnight travel for Council Member Henderson to attend the National League of Cities Board of Directors Meeting to be held July 7-9, 2011 in Charlotte, North Carolina. FISCAL IMPLICATIONS: The Preliminary Fiscal Year 201 1-2012 Budget has allocated funds for travel, training, and meetings for the City Council. Funds for this conference attendance are available in the Legislative Program's Travel, Training, and Meetings account (#101-1001- 411.51-01). Expenditures for this meeting are estimated as follows: Transportation (flight, ground transportation and parking) $ 580 Hotel $ 575 Meals (4 days x $75) $ 300 TOTAL $1455 CHARTER CITY IMPLICATIONS: None. 073 BACKGROUND AND OVERVIEW: The National League of Cities will hold their Board of Directors Meeting July 6-9, 2011 in Charlotte, North Carolina. Council Member Henderson is a member of the Board FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve authorization of overnight travel for Council Member Henderson to attend the National League of Cities Board Meeting to be held July 6-9, 2011 in Charlotte, North Carolina; or 2. Do not approve the request for overnight travel; or 3. Provide staff with alternative direction. Respectfully submitted, t atijy_ W (1/Rm Wanda Wise -Latta, Executive Assistant Approved for submission by: `Thomas P. Genovese, City Manager Attachment: 1. National League of Cities Summer Board of Directors Meeting Confirmation Form 074 NATIONAL ATTACHMENT 1 LEAGUE ofCITIES SUMMER BOARD OF DnIECTORS MEETING jUIY 7-9v 20II * * Please note that the dates above are the dates for the NLC meetings. NLC President James Mitchell, Jr., encourages you to arrive in Charlotte, North Carolina on Wednesday, July6, and depart on Sunday, July 10, to fully participate in the various group events being planned. Charlotte Marriott City Center 100 West Trade Street Charlotte, North Carolina 28202 704-333-9000 Meeting Confirmation Form Please return the completed form to the NIX Executive Office by Monday, April 18, 2011. I will attend the July Board meeting in Charlotte, North Carolina I will not be able to attend the meeting in Charlotte. Blame/Title Enter name/title here LX *X*: H you plan to attend the meeting, please complete the remainder of this form. Family/guest(s) traveling with you to the meeting: If any — please provide the name(s) so that we can prepare a complete list of guests. Enter name(s) here (Continued) 015 C �,.w fQ-�- k OF TNF COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Approval of Amendment No. 2 to the Agreement with Young Electric Sign Company for Project No. LMC 2008-14, Landscape Lighting Maintenance Services for Landscape & Lighting Assessment District 89-1 RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: / CONSENT CALENDAR: 6 STUDY SESSION: PUBLIC HEARING: Approve. Amendment No. 2 to the agreement for landscape lighting maintenance services, Project No. LMC 2008-14 Landscape & Lighting Assessment District 89-1 (Attachment 1), with Young Electric Sign Company to continue services for an additional year (July 1, 2011 through June 30, 2012) and authorize the City Manager to execute the amendment. FISCAL IMPLICATIONS: Adequate funds for these services have been proposed in the Fiscal Year 201 1-2012 budget, Landscape and Lighting Account No. 101-7004-431.32-07 and Parks Account No. 101-3005-451 .32-07. CHARTER CITY IMPLICATIONS: This project is funded by the Landscape & Lighting Assessment District 89-1 Fund and the General Fund. Therefore, under the City's status as a charter city, the City is not mandated to pay prevailing wage rates as of this point in time. However, a case is pending before the California Supreme Court that could impact this exemption. BACKGROUND AND OVERVIEW: During the April 21, 2009, City Council meeting, the City Council approved an agreement in the amount of $137,700 with Young Electric Sign Company to provide landscape lighting maintenance services for Project No. LMC 2008-14, Landscape & Lighting Assessment District 89-1. The existing agreement expires on June 30, 2010 (Attachment 2). The original contract specifications, Section 2000-2.0 Contract Terms, allowed for four (4) one-year extensions renewable at the beginning of each fiscal year through Fiscal Year 2013-2014, at the City's discretion if the contractor performs in a satisfactory manner. The contract may be terminated with thirty (30) day notice to the contractor. During the June 15, 2010 City Council meeting, the City Council approved Amendment No. 1 to the agreement for landscape lighting maintenance services, Project No. LMC 2008-14 Landscape & Lighting Assessment District 89-1, with Young Electric Sign Company to continue services for an additional year (July 1, 2010 through June 30, 201 1) and authorize the City Manager to execute the amendment. Staff believes the contractor has performed satisfactorily and, therefore, recommends a one-year extension as defined in Amendment No. 2 to the agreement extending the term for one additional year, from July 1, 2011 through June 30, 2012, at the same rate of $137,700. In addition, language has been added to Amendment No. 2 to update the insurance language as recommended by the California Joint Powers Insurance Authority. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1 . Approve Amendment No. 2 to the agreement for landscape lighting maintenance services, Project No. LMC 2008-14 Landscape & Lighting Assessment District 89-1, with Young Electric Sign Company to continue services for an additional year and authorize the City Manager to execute the amendment; or 2. Do not approve Amendment No. 2 to the agreement for landscape lighting maintenance services, Project No. LMC 2008-14 Landscape & Lighting Assessment District 89-1, with Young Electric Sign Company to continue services for an additional year; or 3. Provide staff with alternative direction. Respectfully submitted, dmothy na P.E. Public W Die or/City Engineer ," 077 Approved for submission by: Thomas P. Genovese, City Manager Attachments: 1. Amendment No. 2 to agreement with Young Electric Sign Company 2. Existing agreement with Young Electric Sign Company " 078 ATTACHMENT 1 AMENDMENT NO, 2 TO AGREEMENT WITH YOUNG ELECTRIC SIGN COMPANY FOR PROJECT NO. LMC 2008-14, LANDSCAPE LIGHTING MAINTENANCE SERVICES FOR LANDSCAPE & LIGHTING ASSESSMENT DISTRICT 89-1 THIS AMENDMENT NO. 2 TO THE AGREEMENT WITH YOUNG ELECTRIC SIGN COMPANY FOR PROJECT NO. LMC 2008-14, LANDSCAPE LIGHTING MAINTENANCE SERVICES FOR LANDSCAPE & LIGHTING ASSESSMENT DISTRICT 89-1 ("Amendment No. 2") is made and entered into as of the day of , 2011 ("Effective Date"), by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and Young Electric Sign Company ("Contractor")• RECITALS A. On or about April 21, 2009, the City and Contractor entered into an Agreement for Project No. LMC 2008-14 Landscape Lighting Maintenance Services for Landscape & Lighting Assessment District 89-1. The term of this original agreement was July 1, 2009 through June 30, 2010. B. Pursuant to Section A Terms of Agreement of the original Agreement, the City and Contractor may extend the term of the agreement upon mutual agreement by both parties. C. On June 15, 2010, the City approved Amendment No. 1 to the original Agreement extending the term for one (1) additional year (first extended term) July 1, 2010 to June 30, 2011. D. Contractor and City now wish to amend the original Agreement to extend the term for one (1) additional year (second extended term), July 1, 2011 through June 30, 2012; and update Section 1340 Liability and Insurance Requirements. AMENDMENT: In consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: As provided in Section A of the existing Agreement, the City and Contractor have agreed to extend the term of the agreement for one (1) additional year, commencing July 1, 2011 through June 30, 2012. ». 079 Section 1340 Liability and Insurance Requirements of the original Agreement is amended as follows: 1. Replacement of existing Section 1340, Paragraph 1.0 Indemnification, with the following: SECTION 1340 LIABILITY AND INSURANCE REQUIREMENTS 1.0 Contractor shall defend, indemnify and hold harmless City, its officers, employees, representatives and agents ("Indemnified Parties"), from and against those actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, arising out of any liability or claim for liability, for injury to or death of person(s), for damage to property (including property owned by City) and for errors and omissions committed by Contractor, its officers, employee representatives, and agents, which arise out of acts or activities of Contractor's or Contractor's Officers, employees, agents or representatives ("Claims"), whether or not such act or activity is authorized by this Agreement, except to the extent of such loss as may be caused by the City's own negligence or that of its officers or employees. In the event the Indemnified Parties are made a party to any action, lawsuit, or other adversarial proceeding in any way involving such Claims, Contractor shall provide a defense to the Indemnified Parties, or at the City's option, reimburse the Indemnified Parties their costs of defense, including reasonable attorneys' fees, incurred in defense of such Claims. In addition, Contractor shall be obligated to promptly pay any final judgment or portion thereof rendered against the Indemnified Parties. Approval of any insurance contracts by the City does not relieve the Contractor or subcontractors from liability under Section 1340-1.0, Indemnification. The City will not be liable for any accident, loss, or damage to the work prior to its completion and acceptance. 2. Deletion of Section 1340, Paragraphs 2.2(e) and 2.3(c) regarding deductibles. 3. Correction to Section 1340, Paragraph 2.6, which should be changed to reference "Paragraph 1340-2.5.d, Endorsements." 4. Replacement of Section 1340, Paragraph 2.6, with the following: � 080 2.6 Change in Terms The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to the location identified in Paragraph 1 340-2.5.d, Endorsements. The Contractor shall be obligated to pay any extra premium for maintaining the insurance requirements specified herein. 5. All remaining language in Section 1340 shall continue in full force and effect for the term of this Amendment. Except as expressly amended or superseded by Amendment No. 2, the terms and conditions of the original agreement shall remain in effect. IN WITNESS WHEREOF, the City and Contractor have executed this Amendment No. 2 to the Agreement with Young Electric Sign Company for Project No. LMC 2008-14 Landscape Lighting Maintenance Services for Landscape & Lighting Assessment District 89-1 on the respective dates set forth 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 "" 081 CONTRACTOR: Young Electric Sign Company 5405 N. Industrial Parkway San Bernardino, CA 92407 In Name (please print): Title (please print): Date: 082 I ATTACHMENT 2 AGREEMENT THIS AGREEMENT, made and entered into this 30 day of April , 2009, by and between the CITY OF LA QUINTA, CALIFORNIA, a Municipal Corporation, hereinafter designated as "CITY" and 15- (YESC), hereinafter referred to as "CONTRACTOR". WITNESSETH: WHEREAS, on April 10, 2009, CITY invited bids for landscape maintenance services for CITY maintained properties per specifications; and WHEREAS, pursuant to said invitation, CONTRACTOR submitted a bid, which was accepted by CITY for said services. NOW, THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: A. TERMS OF AGREEMENT: This Agreement shall be from the date this Agreement is made and entered, as first written above, until June 30, 2010, or such later date as may be agreed between parties. B. CITY'S OBLIGATIONS: For furnishing services, as specified in this Agreement, CITY will pay and CONTRACTOR shall receive in full compensation; therefore, the total sum of one Hundred Thirty Seven Thousand, Seven Hundred Dollars and No Cents, ($137,700.00), as required in the bid documents and adopted by the CITY. C. CONTRACTOR'S OBLIGATIONS: For, and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by CITY, CONTRACTOR agrees with CITY to furnish the services and to do everything required by this Agreement and the said specifications. D. Indemnification. Contractor shall defend, indemnify and hold harmless City, its officers, employees, representatives and agents ("Indemnified Parties"), from and against those actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, arising out of any liability or claim for liability, for injury to or death of person(s), for damage to property (including property owned by City) and for errors and omissions committed by Contractor, its officers, employees representatives, and agents, which arise out of acts or activities of Contractor's or Contractor's Officers, employees, agents or representatives ("Claims"), whether or not such act or activity is authorized by this Agreement, except to the extent of such loss as may be caused by City's own negligence or that of its officers or employees. In the event the Indemnified Parties are made a party to any action, lawsuit, or other adversarial proceeding in any way involving such Claims, Contractor shall provide a defense to the Indemnified Parties, or at the City's option, reimburse the Indemnified Parties their costs of defense, including reasonable attorneys` fees, incurred in defense of such Claims. In addition, Contractor shall be obligated to 0 promptly pay any final judgment or portion thereof rendered against the Indemnified Parities. E. AMENDMENTS: Any amendment, modifications, or variation from the terms of this Agreement shall be in writing. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing signed by both parties. F. TERMINATION: If, during the term of this Agreement, CITY determines that CONTRACTOR is not faithfully abiding by any term or conditions contained herein, CITY may notify CONTRACTOR in writing of such defect or failure to perform; which notice must give CONTRACTOR a ten-day notice of time thereafter in which to perform said work or cure the deficiency. If CONTRACTOR has not performed the work or cured the deficiency within the ten (10) days specified in the notice, such shall constitute a break of this Agreement and CITY may terminate this Agreement immediately by written notice to CONTRACTOR to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under this Agreement except, however, any and all obligations of CONTRACTOR'S surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any manner waived by the termination hereof. In said event, CONTRACTOR shall be entitled to the reasonable value of its services performed from the beginning of the period in which the breach occurs up to the day it received CITY'S Notice of Termination, minus any offset from such payment representing the CITY'S damages from such breach. CITY reserves the right to delay any such payment until completion of confirmed abandonment of the project, as may be determined at the CITY'S sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall CONTRACTOR be entitled to receive in excess of the compensation quoted in its bid. G. INCORPORATION BY REFERENCE: The Notice Inviting Bids, the General Bid Terms and Conditions, the Special Bid Terms and Conditions, Bid Submission Form(s), and the Bid Specifications, are hereby incorporated in and made a part of this Agreement. H. COMPLETE AGREEMENT: This written Agreement, including all writings specifically incorporated hereby in reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be or any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. I. ANTI -DISCRIMINATION: In the performance of the terms of this Agreement, CONTRACTOR agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, or religion of such persons. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735. J. AUDIT: CITY shall have the option of inspection andlor auditing all records and other written materials used by CONTRACTOR in preparing its statements to CITY as a condition precedent to any payment to CONTRACTOR. K. NOTICE: All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: 084 CITY: Office of the City Clerk City of La Quinta P.O. Box 1504 La Quinta, CA 92247-1504 CONTRACTOR: Mr. John Gregg, Service Branch Manager / ADM Young Electric Sign Company (YESC) 5405 N. Industrial Parkway, San Bernardino, CA 92407 L. LITIGATION COSTS: In the event an action is filed by either party to enforce any rights or obligations under this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and court costs, in addition to any other relief granted by the court. M. AUTHORITY TO EXECUTE AGREEMENT: Both CITY and CONTRACTOR do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. Dated: 5r --1-0! 01 T ST:��' Veronica 1 on c, ino, CMC, City Clerk APPROVED AS TO FORM: 0ity—� Attorney "CITY" CITY OF LA QUINTA, a California municipal corporation Thomas0J Genovese, City Manager Dated• d o�yd7 ell Dated: /Y('1-4 /I ? �7 "CONTRACTOR" Dated: By: ,�%t - Name: ,N 085 Title: Dated• By: Name: Title: "CONTRACTOR" (If corporation, affix seal) tSQ P fi% "h-ed Alo&T r "" 086 COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Approval of Amendment No. 2 to the Agreement with Teserra for Project No. LMC 2008-13, Landscape Maintenance Services for Landscape & Lighting Assessment District 89-1 RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: _ CONSENT CALENDAR: 7 STUDY SESSION: PUBLIC HEARING: Approve Amendment No. 2 (Attachment 1) to the agreement with Teserra to continue services for an additional year (July 1, 2011 through June 30, 2012) to Teserra for the Citywide Landscape Maintenance Contract, Project No. LMC 2008-13, and authorize the City Manager to execute the amendment. FISCAL IMPLICATIONS: Adequate funds for these services have been proposed in the Fiscal Year 201 1-2012 budget, Account No. 101-7004-431-34-04. CHARTER CITY IMPLICATIONS: This project is funded by the Landscape and Lighting Assessment District 89-1 Fund and the General Fund. Therefore, because of the City's status as a charter city, the City is not mandated to pay prevailing wage rates as of this point in time. However, a case is pending before the California Supreme Court that could impact this exemption. BACKGROUND AND OVERVIEW: On April 21, 2009 the City Council awarded a contract to Teserra for the Citywide Landscape Maintenance Contract, Project No. 2008-13, in the amount of $589,756. The citywide landscape maintenance program provides for weekly maintenance of all landscape areas located within the City's medians and perimeter landscape. The contract duration was for one (1) year with up to four (4) one-year extensions is renewable at the beginning of each fiscal year through Fiscal Year 2013-2014. The contract may be terminated by the City with a thirty (30) day notice to the contractor. The original Contract Agreement expired on June 30, 2010 (Attachment 2). Section A, Terms of Agreement, allows the City and the Contractor to extend the terms of the agreement as may be agreed between the two parties. During the June 15, 2010, meeting, the City Council approved Amendment No. 1 to the agreement with Teserra to continue services for an additional year (July 1, 2010 through June 30, 201 1) for the Citywide Landscape Maintenance Contract, Project No. LMC 2008-13. Staff believes the contractor has performed satisfactorily this year and therefore recommends a one-year extension as defined in Amendment No. 2 to the agreement extending the term for one additional year, from July 1, 2011 through June 30, 2012, in the amount of $457,247.68. In addition, the insurance language has been updated in Amendment No. 2 as recommended by the California Joint Powers Insurance Authority. Contract Change Order No. 3 removed the Bear Creek Pedestrian/Fred Wolff Bike Path and Seasons Retention Basin/Seasons Park landscape maintenance from the Citywide Landscape Maintenance contract and added these to the Park Landscape Maintenance Services Contract. A summary of all contract changes orders are as follows: Original Contract Description of Change Order $589,756 Amount Contract Change Add Jefferson Street median from Highway 111 $1,716 Order No. 1 to Westward Ho Drive Contract Change Add Highway 111 median from Cliff house to $2,383 Order No. 2 Plaza La Quinta Add Avenue 52 median from El Dorado Drive to Hideaway Club Drive Contract Change Delete Bear Creek Pedestrian/ Fred Wolff Bike ($142,497) Order No. 3 Trail and Seasons Retention Basin Contract Change Add Seeley Drive Median from Miles Ave to $1,541 Order No. 4 Washington Street. Add Dune Palms Rd. Medians. Contract Change Add New Fire Station No. 32 perimeter landscape $4,348 Order No. 5 Total Revised $457,247 Contract Amount {ii FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve Amendment No. 2 to the Agreement with Teserra to continue services for an additional year (July 1, 2011 through June 30, 2012) for the Citywide Landscape Maintenance Contract, Project No. LMC 2008-13 and authorize the City Manager to execute the agreement; or 2. Do not approve Amendment No. 2 to the Agreement with Teserra to continue services for an additional year (July 1, 2011 through June 30, 2012 for the Citywide Landscape Maintenance Contract, Project No. LMC 2008-13; or 3. Provide staff with alternative direction. Respectfully submitted, i thy R. Jon ssoi , .E. Public Works vector/City Engineer Approved for submission by: Thomas P. Genovese, City Manager Attachments: 1. Amendment No. 2 to Agreement with Teserra 2.Existing Agreement with Teserra ,... 089 ATTACHMENT 1 AMENDMENT NO.2 TO AGREEMENT WITH TESERRA FOR PROJECT NO. LMC 2008-13, LANDSCAPE MAINTENANCE SERVICES FOR LANDSCAPE & LIGHTING DISTRICT 89-1 THIS AMENDMENT NO. 2 TO THE AGREEMENT WITH TESERRA FOR PROJECT NO. LMC 2008-13, LANDSCAPE MAINTENANCE SERVICES FOR LANDSCAPE & LIGHTING DISTRICT 89-1 ("Amendment No. 2") is made and entered into as of the day of , 2011 ("Effective Date"), by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and Teserra ("Contractor"). RECITALS A. On or about April 21, 2009, the City and Contractor entered into an Agreement for Project No. LMC 2008-13 Landscape Maintenance Services for Landscape & Lighting District 89-1. The term of this original agreement expires June 30, 2010. B. Pursuant to Section A Terms of Agreement of the original Agreement, the City and Contractor may extend the term of the agreement upon mutual agreement by both parties. C. On June 15, 2010 the City approved Amendment No. 1 to the original agreement, extending the term for one (1) additional year (first extended term) July 1, 2010 through June 30, 2011. D. Contractor and City now wish to amend the original Agreement to extend the term for one (1) additional year (second extended term) July 1, 2011 through June 30, 2012; and update Section 1340 Liability and Insurance Requirements. AMENDMENT: In consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: As provided in Section A of the existing Agreement, the City and Contractor have agreed to extend the term of the agreement for one (1) additional year, commencing July 1, 2011 through June 30, 2012. replaced, in its entirety, with the following: of the original Agreement is » 090 SECTION 1340 LIABILITY AND INSURANCE REQUIREMENTS 1.0INDEMNIFICATION. 1.0 Indemnification. To the fullest extent permitted by law, Contractor 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 liability, claims, suits, actions arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, actual attorney fees incurred by City, court costs, interest, defense costs including fees of expert Contractors or expert witnesses incurred in connection therewith and any other costs or expenses of any kind whatsoever incurred in relation to, as a consequence of or arising out of or in any way attributable in whole or in part to the performance of this agreement. All obligations under this provision are to be paid. by Contractor as the City incurs them. With respect to the design of public improvements, the Contractor 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 Contractor. 1.1 Exception to Contractor's Obligation to Indemnify. Without affecting the rights of City under any provision of this agreement or this section, Contractor shall not be required to indemnify and hold harmless City as set forth above for liability attributable to the sole fault of City, provided such sole fault is determined by agreement between the parties or by the findings of a court of competent jurisdiction. This exception will apply only in instances where City is shown to have been solely at fault and not in instances where Contractor is solely or partially at fault or in instances where City's fault accounts for only a percentage of the liability involved. In those instances, the obligation of Contractor will be all-inclusive and City will be indemnified for all liability incurred, even though a percentage of the liability is attributable to conduct of the City. 1.2 Contractor Acknowledgment. Contractor acknowledges that its obligation pursuant to this section extends to liability attributable to City, if that liability is less than the sole fault of City. 1.3 Indemnity Provisions for Subcontractors. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, sub tier contractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance of this Agreement. In the event Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. 1.4 No Waiver; Survival. Failure of City to monitor compliance with the requirements of this Section 2.2 imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. Contractor's obligation to indemnify and defend City as a set forth herein is binding on the successors, assigns, or heirs of Contractor and shall survive the termination of this Agreement or this section. 2.0 INSURANCE REQUIREMENTS. 2.0 Insurance Requirements. Prior to the beginning any Work under this Agreement and throughout the duration of the term of this Agreement, Contractor shall, at its own cost, provide and maintain, and submit concurrently with its execution of this Agreement, insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating level of A- or better, Class VI or better, or as otherwise approved by the City. 2.1 Minimum Coverage. Insurance shall include the following (or broader) coverage: a. Insurance Services Office Commercial General Liability coverage "occurrence" form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $2,000,000 per occurrence and $4,000,000 in the aggregate. b. Insurance Services Office form number CA 0001 or equivalent covering Automobile Liability, including hired and non -owned automobile liability with a minimum limit of $1,000,000 per accident. If Contractor owns no vehicles, this requirement may be satisfied by a non -owned and hired auto endorsement to Contractor's commercial general liability policy. C. Contractor shall carry Workers' Compensation Insurance complying with California's worker's compensation laws, including statutory limits for workers' compensation and an Employer's Liability limit no less than $1,000,000 per accident or disease. d. Contractor's pollution liability insurance shall be written on a form acceptable to City providing coverage for liability arising out of sudden, accidental and gradual pollution. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. All activities contemplated in this agreement shall be specifically scheduled on the policy as "covered operations." The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non -owned disposal sites. Products/completed operations coverage shall extend a minimum of 3 years after project completion. Coverage shall be included on behalf of the insured for coverage claims arising out of the actions of independent contractors. If the insured is using subcontractors the Policy must include work performed "by or on behalf' of the insured. Policy shall contain no language that would invalidate or remove the insurer's duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. ». 092 2.2 Required Endorsements. Liability insurance policies required to be provided by Contractor hereunder shall contain or be endorsed to contain the following provisions: a. City, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the Work or related to the Contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10 with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37 with an edition date prior to 2004. b. General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Coverage will not be limited to City's vicarious liability. C. Liability coverage shall be primary and non-contributing with any insurance maintained by the City. d. Each policy required hereunder, and the associated evidence of coverage (including the workers' compensation and employer's liability policies), shall not be suspended, voided, canceled or reduced in coverage or in limits except after prior written notice has been given to City. e. No liability insurance coverage provided to comply with this Agreement shall prohibit Contractor, or Contractor's employees, or agents, from waiving the right of recovery prior to a loss. Contractor waives its right of recovery against City. 2.3 Verification of Coverage. Contractor shall deposit with City within fifteen (15) days of Notice to Proceed of the Contract certificates of insurance evidencing the coverage required hereunder and all required endorsements. 2.4 No Waiver or Obligation. There shall be no recourse against City for payment of premiums or other amounts with respect to the insurance required to be provided by Contractor hereunder. Any failure, actual or alleged, on the part of City to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of City. City has no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from Contractor payments. 2.5 Prompt Notice. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor arising out of the work performed under this -„". 093 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. 2.6 Subcontractors. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor approved by City. All coverages for subcontractors, if any, shall be subject to all of the requirements stated herein unless otherwise approved in advance by City. 2.7 Remedies. In addition to any other remedies City may have if Contractor 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 Contractor to stop work under this Agreement and/or withhold any payment(s) which become due to Contractor hereunder until Contractor 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 Contractor'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 Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractors' performance of work under this Agreement. 2.8 Change in Terms. The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to: Thomas P. Genovese, City Manager City of La Quinta P. O. Box 1504 La Quinta, CA 92247 In all other respects, the original agreement shall remain in effect. IN WITNESS WHEREOF, the City and Contractor have executed this Amendment No. 2 to the Agreement with Teserra for Project No. LMC 2008-13 Landscape Maintenance Services for Landscape & Lighting District 89-1 on the respective dates set forth below. 094 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 CONTRACTOR: TESERRA By: Name: Title: Date: Teserra PO Box 1280 86-100 Avenue 54 Coachella, CA 92236 N 095 ATTACHMENT 2 AGREEMENT THIS AGREEMENT, made and entered into this 30 day of April , 2009, by and between the CITY OF LA QUINTA, CALIFORNIA, a Municipal Corporation, hereinafter designated as "CITY" and Teserra, hereinafter referred to as "CONTRACTOR". WITNESSETH: WHEREAS, on April 10, 2009, CITY invited bids for landscape maintenance services for CITY maintained properties per specifications; and WHEREAS, pursuant to said invitation, CONTRACTOR submitted a bid, which was accepted by CITY for said services. NOW, THEREFORE, ' in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: A. TERMS OF AGREEMENT: This Agreement shall be from the date this Agreement is made and entered, as first written above, until June 30, 2010, or such later date as may be agreed between parties. B. CITY'S OBLIGATIONS: For furnishing services, as specified in this Agreement, CITY will pay and CONTRACTOR shall receive in full compensation, therefore, the total sum of ' Five. Hundred Eighty Nine Thousand Seven Hundred Fifty Six_ Dollars and No Cents, ($589,756.00), as required in the bid documents and adopted by the CITY. C. CONTRACTOR'S OBLIGATIONS: For, and in consideration of the payments and agreements hereinbefore . mentioned to be made and performed. by CITY, CONTRACTOR agrees with CITY to furnish the services and to do everything required by this Agreement and the said specifications. D. Indemnification. Contractor shall defend, indemnify and hold harmless City, its officers, employees, representatives and agents ("Indemnified Parties"), from and against those actions, suits, proceedings, claims, demands, losses,costs, and expenses, including legal costs and attorneys' fees, arising out of any liability or claim for liability, for injury to or death of person(s), for damage to property (including property owned by City) and for errors and omissions committed by Contractor, its officers, employees representatives, and agents, which arise out of acts or activities of Contractor's or Contractor's Officers, employees, agents or representatives ( "Claims"), whether or not such act or activity is authorized by this Agreement, except to the extent of such loss as may be caused by City's own negligence or that of its officers or employees. In the event the Indemnified Parties are made a party to any action, lawsuit, or other adversarial proceeding in any way involving such Claims, Contractor shall p[ovide a defense to the Indemnified Parties, or at the City's option, reimburse the . Indemnified Parties their costs of defense, including reasonable attorneys' fees, incurred in defense of such Claims. In addition, Contractor shall be obligated to promptly pay any final judgment or portion thereof renderedagainst the Indemnified Parities. E. AMENDMENTS: Any amendment, modifications, or variation from the terms of this Agreement shall be in writing. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing signed by both parties. F. TERMINATION: If, during the term of this Agreement, CITY determines that CONTRACTOR is not faithfully abiding by any term or conditions contained herein, CITY may notify CONTRACTOR in writing of such defect or failure to perform; which notice must give CONTRACTOR a ten-day notice of time thereafter in which to perform said work or cure the deficiency. If CONTRACTOR has not performed the work or cured -the deficiency within the ten (10) days specified in the notice, such shall constitute a break of this Agreement and CITY may terminate this Agreement immediately by written notice to CONTRACTOR to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under this Agreement except, however, any and all obligations of CONTRACTOR'S surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any manner waived by the termination hereof. In said event, CONTRACTOR shall be entitled to the reasonable value of its services performed from the beginning of the period in which the breach occurs up to the day it received CITY'S Notice of Termination, minus any offset from such payment representing the CITY'S damages from such breach. CITY reserves the right to delay any such payment until completion of confirmed abandonment of the project, as may be determined at the CITY'S sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall CONTRACTOR be entitled to receive in excess of the compensation quoted in its bid. G. INCORPORATION BY REFERENCE: The Notice Inviting Bids, the General Bid Terms and Conditions, the Special Bid Terms and Conditions, Bid Submission Form(s), and the Bid Specifications, are hereby incorporated in and made a part of this Agreement. H. COMPLETE AGREEMENT: This written Agreement, including all writings specifically incorporated hereby in reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be or any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. ANTI -DISCRIMINATION: In the performance of the terms of this Agreement, CONTRACTOR agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, or religion of such persons. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735. J. AUDIT: CITY shall have the option of inspection and/or auditing all records and other written materials used by CONTRACTOR in preparing its statements to CITY as a condition precedent to any payment to CONTRACTOR. K. NOTICE: All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: O g pM CITY: Office of the City Clerk City of La Quinta P.O. Box 1504 La Quinta, CA 92247-1504 CONTRACTOR: Mr. Jim Harebottle, President/CEO TESERRA P.O. Box 1280, Coachella, CA 92236 L. LITIGATION COSTS: In the event an action is filed by either party to enforce any rights or obligations under this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and court costs, in addition to any other relief granted by the court. M. AUTHORITY TO EXECUTE AGREEMENT: Both CITY and CONTRACTOR do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. 6/2271 Ii APPROVED AS TO FORM: ity Attorney Dated: l "CITY" CITY OF LA QUINTA, aCalifornia municipal corporation By..M M Y Thomas,: Genovese, City Manager P Dated: ,2UU�j "CONTRACTOR" By: V rI Name: A D /iVT Z .., 098 Dated: Title: -we Perms. By: 16 Name: J AA•(t.S Title: Par-s.., n "CONTRACTOR" (If corporation, affix,seal) 099 :.ff U ` 'II rL... 79 495 Calle Tampico, La QBinta, CA 92253 (760) 777-7000 CERTIFICATE NON -TRANSFERABLE BUSINESS LOCATION OUTSIDE. CITY L,IMITS t BUSINESS NAME: TESERRA BUSIIV$SS �Di��AI P.O. BOX 12810 pit �lil. " "COACHELLACA;92236 I11 q'�'I' BY S Dear liadneu Owner. p' ` p �t �yynhiti �Ipfe hudoaalkeosehy the City not been appmvee a k d A ip n { or tenant rpuee that ye ool peen timeoved u eHr... If Safety to Certrcpb if rCew have any gmtlonr 'yIf ran rater tore lfe Certificate ofOewopnoq hai been stl for nrplace of budnea, pleasa wonted Betiding and Safety at (7601 The Litman, nerved herein having paid to the City of fa Qateta all few required, amen it hereby granted said Iheesas to transact the business herein sat forth, for the period stated, te conformity with the Ptovitloas of Drdo.nw, Ne. 3 of 16Y City. This Usuma h bmad wlthoot vedfImtletflhrt then s nY � "e is 7--lI ti oraumpt frdm Kcrodgg by the 3wavicebia" � ,. p I pii l; .i BUSINESS LIC NO: ass ' „; e �.f CLASSIFICATION: SUB coNTRACTOR EIIPIRATION DATE: 3 / 31/ 10. t• 100 La o� Qum& F cFb OF CONTRACT: L.M.C. 2009/2010, Project No. 2008-13 Page 1 of 2 CONTRACTOR: .TESERRA CONTRACT CHANGE ORDER NO. 1 Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. ***A*AAA*#RR#*A*ARRAARf#ff*##f**f**#rtYrtYrt*rt*Y*A*#AA*A*#R#f**A**RA*#A#*RR##Rff##f*#f##f#f*f*fff# DESCRIPTION OF CHANGE: Addition of Landscape Maintenance Turf (a) $.1008/sf Planter(ai) $.108/sf Irrigation t7a $.024 Annual Month] Jefferson St. median 0 13,000 SF = $1404.00 13,000 SF = $312.00 $1,716.00 $143.00 (Hwy I I 1 to Westward Ho) See the attached sheet for the number of trees. All other requirement of the Landscape Maintenance Contract (LMC) Project No. 2008-13 shall apply. Total Contract Compensation for this Contract Change Order is in the amount of., $ 1,716.00 Previous Contract Amount through Contract Change Order No. 0 $589,756.00 Add this Change Order $ 1,716.00 Revised Contract Total $591,472.00 ,.............................................................................. Submitted By: " Date: /Z Z Approved By: Date: I 2 2 g ,am 08228al . . . . (E'd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . We, the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all services necessary to complete the above specified work, and hereby accept as full payment the amount s wn above ,.l Accepted By: 1 1 .. Title:�I l ri �Q fr 5 /�f✓� ( f G Contractor: / TESERRA Date: Ci 101 � T 04 wo- OF CONTRACT:L.NLC. 2009/2010, Project No. 2008-13 Page 1 of 2 CONTRACTOR: TESERRA CONTRACT CHANGE ORDER NO. 2 ♦f1f#fffi######R##RW#Wf#fflf#fff**#WA##f#i#f##11f*#Y#**#####f#t1f#Y##f#i####f####f#f#f114*44i## Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. f**f##Rf11W*Wf#•1f1f****###flfif*fiR###i#14Wf****iflf*WfW#4Yffi**#*##11###fY#i#14*#*t**A###1R1f *' DESCRIPTION OF CHANGE: Addition of Landscape Maintenance Turf aa) $.I008/sf Planter (1a $.1008/sf Irri¢ation QS.024 Annual Monthly Highway 111, median 0 2,100 SF = $ 211.68 2,100 SF - $ 50.40 $ 262.08 $ 21.84 (Cliff House to Plaza La Quinta Dr.) Ave 52, Median & Parkway 0 17,000 SF = $1,713.60 17,000 SF = $408. $2,121.60 $176.80 (El Dorado Dr. to Hideaway Club Dr.) See the attached sheet for the number of trees. All other requirement of the Landscape Maintenance Contract (LMC) Project No. 2008-13 shall apply. Total Contract Compensation for this Contract Change Order is in the amount of: S 2,383.68 Previous Contract Amount through Contract Change Order No. I Add this Change Order Revised Contract Total $591,472.00 S 2,383.68 $593,855.68 ............................................*....sage......................... l Submitted By: Date: Approved By: Date: O We, the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all services necessary to complete the above specified work, and hereby accept as full payment the amount show ove. \ J Accepted By: Title: V �' Contractor: TESERRA Date: Z-co On 102 AMENDMENT NO. 1 TO AGREEMENT WITH TESERRA FOR PROJECT NO. LMC 2008-13, LANDSCAPE MAINTENANCE SERVICES FOR LANDSCAPE & LIGHTING DISTRICT 89-1 THIS AMENDMENT NO. 1 TO THE AGREEMENT WITH TESERRA FOR PROJECT NO. LMC 2008-13, LANDSCAPE MAINTENANCE SERVICES FOR. LANDSCAPE & LIGHTING DISTRICT 89-1 ("Amendment No. 1") is made and entered into as of the &st day of , 2010 ("Effective Date"), by and between the CITY OF LA QUINTA, ("C "), a California municipal corporation, and Teserra ("Contractor"). RECITALS A. On or about April 21, 2009, the City and Contractor entered into an Agreement for Project No. LMC 2008-13 Landscape Maintenance Services for Landscape & Lighting District 89-1. The term of this original agreement expires June 30, 2010. B. Pursuant to Section A Terms of Agreement of the original Agreement, the City and Contractor may extend the term of the agreement upon mutual agreement by both parties. C. Contractor and City now wish to amend the original Agreement to extend the term for one (1) additional year; and update Section 1340 Liability and Insurance Requirements. AMENDMENT: In consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: As provided in Section A of the existing Agreement, the City and Contractor have agreed to extend the term of the agreement for one (1) additional year, commencing July 1, 2010 through June 30, 2011. of the original Agreement is replaced, in its entirety, with the following: SECTION 1340 LIABILITY AND INSURANCE REQUIREMENTS 103 Contractor shall, at its own expense, provide insurance as described herein and ensure that all Subcontractors provide insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating level of A- or better, Class VI or better, or as otherwise approved by City. Insurance shall include the following (or broader) coverage: 1. Insurance Services Office "Commercial General Liability" coverage ..occurrence" form CG 00 01 or its equivalent with an edition date prior to 2004 and with minimum limits of Two Million Dollars ($2,000,000) per occurrence for all covered losses and no less than Four Million Dollars ($4,000,000) in the aggregate. 2. Insurance Services Office form number CA 0001 or equivalent covering Automobile Liability, including hired and non -owned automobile liability with a minimum limit of $1,000,000 per accident. If Contractor owns no vehicles, this requirement may be satisfied by a non -owned and hired auto endorsement to CONTRACTOR'S commercial general liability policy. 3. Workers' Compensation insurance complying with California workers' compensation laws, including statutory limits for workers' compensation and an Employer's Liability limit of $1,000,000 per accident or disease. 4. Contractor's pollution liability insurance shall be written on a form acceptable to City providing coverage for liability arising out of sudden, accidental and gradual pollution. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. All activities contemplated in this agreement shall be specifically scheduled on the policy as "covered operations." The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non -owned disposal sites. Products/completed operations coverage shall extend a minimum of 3 years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors the policy must include work performed "by or on behalf' of the insured. Policy shall contain no language that would invalidate ore remove the insurer's duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. Liability insurance policies required to be provided by CONTRACTOR hereunder shall contain or be endorsed to contain the following provisions: 1. City, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all 104 liability arising out of the Work or related to the Contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10 with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37 with an edition date prior to 2004. 2. General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Coverage will not be limited to City's vicarious liability. 3. Liability coverage shall be primary and non-contributing with any insurance maintained by City. 4. Evidence of coverage (including the workers' compensation and employer's liability policies) shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days' prior written notice has been given to City. Such provision shall not include any limitation of liability of the insurer for failure to provide such notice. 5. No liability insurance coverage provided to comply with this Agreement shall prohibit Contractor, or Contractor's employees, or agents, from waiving the right of recovery prior to a loss. Contractor waives its right of recovery against City. 6. Contractor agrees to deposit with City within fifteen days of Notice to Proceed of the Contract certificates of insurance and required endorsements. There shall be no recourse against City for payment of premiums or other amounts with respect to the insurance required to be provided by CONTRACTOR hereunder. Any failure, actual or alleged, on the part of City to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of City. City has no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from contractor payments. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor arising out of the work performed under this .„, 105 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. 2.2 Chan -go in Terms The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to: Thomas P. Genovese, City Manager City of La Quinta P.O. Box 1504 La Quinta, CA 92247 IN WITNESS WHEREOF, the City and Contractor have executed this Amendment No. 1 to the Agreement with Teserra for Project No. LMC 2008-13 Landscape Maintenance Services for Landscape& Lighting District 89-1 on the respective dates set forth below. CITY OF LA QUINTA a California municipal corporation /• Thomas P. Genovese, City Manager Date ATTEST: APPROVED AS TO FORM: 4M.Athirine 6Je n, City Attorney ,,.% 106 v Title: —mod= Date: l 0 Teserra PO Box 1280 86-100 Avenue 54 Coachella, CA 92236 107 CONTRACT:L.M.C. 2009/2010, Project No. 2008-13 Page 1 of 1 CONTRACTOR: TESERRA CONTRACT CHANGE ORDER NO. 3 #•iw*#ifA*#*#*i*♦k*k**kkkwk#kkw*#k**w*w*f**w***A##****w*wi***kw****rtwkffrteflf##*w#*k**kk***kR*k Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. i*ff##aflfw#f#f11r1f1faawaaiafwifww*ww**#•rtwrtf*wlflkiflfafaafaaaar#**www*waw#www*#**w****#r#►#rt a* Bear creek Pedestrian/ Fred Wolf Bike Trail Seasons Retention Basin Deletion of Landscape Maintenance Turf (a) $.1008/sf Planter aa, $.108/sf Irrigation ia)$.024 Annual Monthly 0 873,606 SF = $94,349. 873,606 SF = $20,967 $115,316 $9,609. 217,800 SF=$21,954 217,800 SF = $ 5,227 $ 27,181 $2,265. All other requirement of the Landscape Maintenance Contract (LMC) Project No. 2008-13 shall apply. Total Contract Compensation for this Contract Change Order is in the amount of: DECREASE ($142,497) ♦iifkf#fifwii#*}*ww*f}#af}ki*a1w#aflflffwllf*f#flflfa}Afa#lwwfaif##iiffflflfwffifkif*aff}f##### ff Previous Contract Amount through Contract Change Order No. 2 $593,855.68 Add this Change Order $(142,497.00) Revised Contract Total $451,358.68 Submitted By: Date: (0 0 Approved By: Date: t'O to i) We, the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, and peif o all s ices necessary to complete the above specified work and hereby accept as full payment the amount l� abov Accepted By: — Title: u' 1 Contractor: TESERRA Date: � T Tait 4 4 Qumrcv , .. CF`y OF CONTRACT:L.M.C. 2010/2011, Project No. 2008-13 Page 1 of 4 CONTRACTOR: TESERRA CONTRACT CHANGE ORDER NO. 4 }RRR+YYxxRRxw+w+xxxxxrtrt*WWf+rtrt+rtrt*wfx*xxW#xxx*ixx**##**xxwRR*rtwwwWrt+#*******#*xx**+*xx+irtrt#Wxfx Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. *Y DESCRIPTION OF CHANGE: Deletion of Landscape Maintenance Turf (a,$.1008/sf Planter an. $.108/sf Irrieation0A.024 Annual Monthlv Seeley Drive 0 8,675SF=$937 8,675SF=$208 S1.145 S95.43 (Washington St. to Miles Ave) Dune Palms Road 0 3,000 SF = $324 3,000 SF = $ 72 S 396 S33.00 (Ave 48 to North 1000 Feet) All other requirement of the Landscape Maintenance Contract (LMC) Project No. 2008-13 shall apply. Total Contract Compensation for this Contract Change Order is in the amount of: S1,541.00 ** Previous Contract Amount through Contract Change Order No. 3 S451,358.68 Add this Change Order S 1,541.00 Revised Contract Total S452,899.68 .............................................................................. r Submitted By: Date: /r� Approved By: Date: �............................................................................ We, the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, perform all labor, eccept as mm be noted above, and perform all services necessary to complete the above specified work, and hereby accept as jell payment the amountsh�roR�gbove. \ , Accepted By: ((//ram/�� Title: Vt. Contractor: TESERRA Date: .•e y OF'MF'�E`� CONTRACT:L.M.C. 2010/2011, Project No. 2008-13 Page 1 of 3 CONTRACTOR: TESERRA CONTRACT CHANGE ORDER NO. 5 YYf#fMf*#f*iw*k*w***kiw*r#*tf##r*#Y*r#ww#rwrwwxr#**#*w*#*ww#RrWrtr#w***#rw#*w*#www Wrrrtw#**rw*#** Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. *i*•*++r+w#w:*:rwrrrwrrw*ww*rr***r#r#YrrrY#i#wrtrxr#****#i+wiw*iwrww*kr*wf**Y*Y*xi*****i*#wr*wrw DESCRIPTION OF CHANGE: Deletion of Landscape Maintenance Turf (a), $,1008/sf Planter (a), $.108/sf Irri¢ation as $.024 Annual Monthly Old Fire Station #32 1,600SF=$161 100SF=$11 1,700SF=$41 $ 213 $17.75 (78-160 Francis Hack Lane) New Fire Station # 32 1,500 SF = $151 23,000 SF = $2,484 24,500 SF = $1,500 $4,135 $344.58 (78-111 Ave 52) All other requirement of the Landscape Maintenance Contract (LMC) Project No. 2008-13 shall apply. Total Contract Compensation for this Contract Change Order is in the amount of $4,348.00 Previous Contract Amount through Contract Change Order No. 4 $452,899.68 Add this Change Order $ 4,348.00 Revised Contract Total $457,247.68 ,among ........ ................... .........0a...... man soon.... gomsomaon... Osamu t Submitted By: ti ii4 Date: t'Gi1 7 /t7 Approved By: ren,-- Date: iu ..coma..• •... •a• ......... mommmomm........g ••om...... solemn ....r...aaa.. We, the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all services necessary to complete the above specified work, and hereby accept as full payment the amountrotove ab. Accepted By:f.....�.— Title: Contractor: rTESERRA Date: Ill o 10 110 AGENDA CATEGORY: COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Adoption of a Resolution to Extend the BUSINESS SESSION: Time for Completion of the Off -Site and On -Site CONSENT CALENDAR: _ Improvements for Tract Map No. 29436, Hidden STUDY SESSION: Canyon, Trans West Housing, Inc. PUBLIC HEARING: RECOMMENDATION: Adopt a resolution to extend the time for completion of the off -site and on -site improvements as specified in the approved Subdivision Improvement Agreement (SIA) to June 7, 2012 for Tract Map No. 29436, Hidden Canyon. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: Hidden Canyon (Tract Map No. 29436) is located north of Eisenhower Drive and west of Washington Street (Attachment 1). On August 5, 2003, the City and Ivanhoe La Quinta Cove, LLC/Trans West Housing, Inc. entered into an SIA for Hidden Canyon. 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 the standards or sequencing of the improvements in response to changes in standards or conditions affecting or affected by the improvements. " On May 6, 2008, the City Council adopted a Resolution granting a time extension for the completion of the improvements as specified in the approved SIA to September 29, 2008. On October 7, 2008, the City Council adopted a Resolution granting a second time extension for the completion of the improvements as specified in the approved SIA to May 29, 2009, On May 19, 2009, the City Council adopted a Resolution granting a third time extension for the completion of the improvements as specified in the approved SIA to November 30, 2009. On December 1, 2009, the City Council adopted a Resolution granting a fourth time extension for the completion of the improvements as specified in the approved SIA to March 2, 2010. Since 2009 the developer has worked to complete the offsite improvements but still has several punch list items to complete before staff can recommend final acceptance. The onsite improvements have been under litigation with the homeowners association. Both the on and offsite improvements are secured under the same SIA and improvement securities; therefore, both must be completed prior to final acceptance by the City Council. In a letter dated May 23, 2011 (Attachment 2), the developer requested a time extension to complete the remaining off -site and on -site punch list items for Hidden Canyon. The on -site punch list items are being completed by the Hidden Canyon Homeowners' Association with settlement funds they received from the developer. Staff has prepared the attached resolution which provides for approval of the fifth time extension of the SIA to June 7, 2012. " FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Adopt a Resolution of the City Council to extend the time for completion of the off -site and on -site improvements as specified in the approved Subdivision Improvement Agreement to June 7, 2012 for Tract Map No. 29436, Hidden Canyon, Trans West Housing, Inc.; or 2. Do not adopt a Resolution of the City Council to extend the time for completion of the off -site and on -site improvements time as specified in the approved Subdivision Improvement Agreement to June 7, 2012 for Tract Map No. 29436, Hidden Canyon, Trans West Housing, Inc.; or 3. Provide staff with alternative direction. Respectfully submitted, I P_ Lvw�� imothy R. J nass n P.E. Public Work' Direc VP. Engineer Approved for submission by: l /G'y/�2� Thomas P. Genovese, City Manager Attachments: 1. Vicinity Map 2. Letter from Trans West Housing dated May 23, 2011 RESOLUTION NO. 2011- 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 AND ON -SITE IMPROVEMENTS AS SPECIFIED IN THE APPROVED SUBDIVISION IMPROVEMENT AGREEMENT TO JUNE 7, 2012 FOR TRACT MAP NO. 29436, HIDDEN CANYON WHEREAS, the City Council approved the Subdivision Improvement Agreement (SIA) for Tract Map No. 29436, Hidden Canyon, on August 5, 2003; 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 March 2, 2010, 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 the off -site and on -site improvements as required by the approved SIA is extended to June 7, 2012. Section 2. The time extension for completing the improvements shall expire when City offices close for regular business on June 7, 2012. If the Subdivider has not completed the improvements, the City, in its sole discretion and when 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. 114 Resolution No. 2011- Tract Map No. 29436, Hidden Canyon Adopted: June 7, 2011 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 7t' day of June 2011, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: 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 DON ADOLPH, Mayor City of La Quinta, California 115 ATTACHMENT 1 TM 29436 HIDDEN CANYON r r r LAKE LA QUINTA Clthloml LA QUINTA COUNTRY CLUB V I C I N I r NOT TO SCALE MAP 116 ATTACHMENT 2 TRANS 3639 Midway Drive Suite B # 141 San Diego, CA 92210 May 23, 2011 Mr. Tim Jonasson, City Engineer Public Works Department City of La Quinta, CA 92253 RE: Tract 29436, Hidden Canyon Dear Mr. Jonasson, Please be advised, that Trans West Housing Inc. (TWH) would like to request an extension of time to finalize the bond reduction issues at the Hidden Canyon tract. TWH is waiting on the interior improvements to be completed before we are in a position to move forward with the bond reduction paperwork. The Hidden Canyon HOA is in the process of completing the interior work. I will update the city once the interior work is complete. Please let us know if this is acceptable to the City of La Quinta. Thank you for your consideration in this matter. Sincerely, TRANS WEST HOUSING, INC. Chris Me Comic Officer 44Qumr� M OF COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Approval of Amendment No. 3 to the Maintenance Services Agreement with CleanStreet for Mechanical Street Sweeping Services RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve Amendment No. 3 to the existing maintenance services agreement for mechanical street sweeping services (Attachment 1) with CleanStreet to continue services for an additional year (July 1, 2011 through June 30, 2012) and authorize the City Manager to execute the amendment. FISCAL IMPLICATIONS: Public Works staff spoke with the contractor about lowering their linear curb mile fee. The contractor lowered the fee from $25.52 to $25.32 per linear curb miles in Amendment No. 2 for Fiscal Year 2010-201 1. The contractor agreed to maintain the current lower fee of $25.32 per curb mile if Amendment No. 3 is approved by City Council. Adequate funds for street sweeping services have been proposed in the Fiscal Year 201 1-2012 budget, Account No. 101-7003-431.44-10. CHARTER CITY IMPLICATIONS: The referenced services are funded by the General Fund. Therefore, under the Charter City status, the City is not required to pay prevailing wage rates as of this point in time. However, a case is pending before the California Supreme Court that could impact this exemption. BACKGROUND AND OVERVIEW: During the July 1, 2008, City Council meeting, the City Council approved a maintenance services agreement in the amount of $104,836 with CleanStreet to provide street sweeping services for Fiscal Year 2008-2009 and authorized the City Manager to execute the agreement (Attachment 2). Exhibit C, Schedule of Performance, in the original maintenance service agreement allowed the City and contractor to extend the agreement for up to three (3) one-year terms renewable at the beginning of each fiscal year through Fiscal Year 201 1-2012. On June 16, 2009, the City Council approved Amendment No. 1 to the maintenance services agreement extending the term for mechanical street sweeping services from July 1, 2009 through June 30, 2010. This was the first one-year extension. On May 18, 2010, the City Council approved Amendment No. 2 to the maintenance service agreement extending the term for mechanical street sweeping services from July 1, 2010 through June 30, 2011. This was the second one-year extension. The City and contractor now wish to enter into Amendment No. 3 to the maintenance services agreement extending the term for mechanical street sweeping services from July 1, 2011 through June 30, 2012 at the current rate of $25.32 per linear curb mile swept. In addition, language has been added to Amendment No. 3 that requires the contractor to assist the City in its public outreach efforts and commits the contractor to using alternative fuel equipment to sweep City streets. These requirements were included in this amendment to comply with a Mobile Source Air Pollution Reduction Review Committee (MSRC) grant the city received for its new CNG fueling station at the corporation yard. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve Amendment No. 3 to the maintenance services agreement with CleanStreet for mechanical street sweeping services extending the term for one additional year and authorize the City Manager to execute the amendment; or 2. Do not approve Amendment No. 3 to the maintenance services agreement with CleanStreet for mechanical street sweeping services extending the term for one additional year; or 3. Provide staff with alternative direction. 119 Respectfully submitted, Timothy R. J as P.E Public Wor Dir or/City Engineer Approved for submission by: Thomas P. Genovese, City Manager Attachments: 1. Amendment No. 3 2. Maintenance Services Agreement 120 ATTACHMENTI AMENDMENT NO. 3 TO MAINTENANCE SERVICES AGREEMENT WITH CLEANSTREET FOR MECHANICAL STREET SWEEPING SERVICES THIS AMENDMENT NO. 3 TO MAINTENANCE SERVICES AGREEMENT WITH CLEANSTREET FOR MECHANICAL STREET SWEEPING SERVICES ("Amendment No. 3") is made and entered into as of the day of , 2011 ("Effective Date"), by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and CleanStreet ("Contractor"). RECITALS A. On or about July 1, 2008, the City and Contractor entered into a Maintenance Services Agreement for mechanical street sweeping services. The term of this original agreement was July 1, 2008 through June 30, 2009. B. Pursuant to Exhibit C Schedule of Performance of the original Maintenance Services Agreement, the City and Contractor may extend the term of the agreement for up to three (3) additional years (extended terms) upon mutual agreement by both parties. C. On June 16, 2009, the City approved Amendment No. 1 to the original Maintenance Services Agreement, extending the term for one (1) additional year (first extended term) July 1, 2009 through June 30, 2010. D. On May 18, 2010, the City approved Amendment No. 2 to the original Maintenance Service Agreement extending the term for one (1) additional year (second extended term) July 1, 2010 through July 30, 2011. E. Contractor and City now wish to amend the original Maintenance Services Agreement to extend the term for one (1) additional year (third extended term); update Exhibit B Schedule of Compensation; and update Exhibit D Special Requirements. AMENDMENT: In consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: As provided in Exhibit C Schedule of Performance, the City and Contractor have agreed to a third extended term commencing July 1, 2011 through June 30, 2012. Exhibit B Schedule of Compensation of the original Maintenance Services Agreement is replaced, in its entirety, with the following: Payment shall be provided to the Contractor for services rendered based upon each curb mile swept. Compensation shall be provided at $25.32 per curb mile. Total compensation for all work under this contract shall not exceed One Hundred Four Thousand Fourteen Dollars and Fifty Six Cents ($104,014.56) for the third extended term of July 1, 2011 through June 30, 2012 except as specified in Section 1.6 Additional Services of the Agreement. The following is a summary of costs to provide the services outlined within Exhibit A of this Agreement for Mechanical Street Sweeping Services. Item Description Unit Estimated Quantity Unit Cost Extended Cost Street Sweeping Linear Mile 79.0 $25.32 $2,000.28 TOTAL $2,000.28 per week Exhibit D Special Requirements of the original Maintenance Services Agreement is replaced, in its entirety, with the following: The City of La Quinta will provide the Contractor with a disposal site for the refuse collected within the City of La Quinta Corporate Boundary. The City and the Contractor will be responsible for disposal of refuse. The Contractor will participate in at least one (1) public outreach event, to be determined by the City, and provide an operator, street sweeper and literature and information to inform the public about the use of alternative fuel CNG street sweepers and the air quality control benefits of sweeping streets. The Contractor will use vehicles with dedicated alternative fuel sources (i.e. compressed natural gas (CNG)) to fulfill the Maintenance Services Agreement with the City for mechanical street sweeping services. IN WITNESS WHEREOF, the City and Contractor have executed this Amendment No. 3 to the Maintenance Services Agreement with CleanStreet for mechanical street sweeping services on the respective dates set forth below. 122 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 CONTRACTOR: CleanStreet By: Name: Title: Date: 123 ATTACHMENT 2 MAINTENANCE SERVICES AGREEMENT THIS MAINTENANCE SERVICES AGREEMENT (the "Agreement") is made and entered into by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and CLEAN STREET ("Contractor"). The parties hereto. agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide those services related to Mechanical Street Sweeping as specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference (the "services" or "work"). Contractor 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, Contractor 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. Contractor 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, Contractor 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 Contractor discover any latent or unknown conditions 'materially differing from those inherent in the work or as represented by City, it shall immediately inform City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer (as defined in Section 4.2 hereof) . 1.5 Care of Work. Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work performed by Contractor, 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 Contractor shall not relieve Contractor 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 Contractor. ,.p ' 124 1.6 Additional Services. In accordance with the terms and conditions of this Agreement, Contractor shall perform services in addition to those specified in the Scope of Services when directed to do so by the Contract Officer, provided that Contractor 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 "D" (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, Contractor shall be compensated in accordance with Exhibit "B" .(the "Schedule of Compensation") in a total amount not to exceed One Hundred Four Thousand Eight Hundred Thirty -Six Dollars and Sixteen Cents ($104,836.16) (the "Contract Sum"), 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 Contractor's rate schedule, but not exceeding the Contract Sum, 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 (1 Oth) 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 Contractor 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 thirty (30) days after invoices are received by the City's Finance Department. 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 "C" (the "Schedule of Performance"). Extensions to the time period specified in the Schedule of. Performance may be approved in writing by the Contract Officer. Yearly extensions, not to exceed three (3) one-year extensions, renewable at the beginning of each fiscal year through Fiscal Year 201 1 /201 2, may be allowed, at the City of La Quinta's discretion. 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 Contractor, 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 Contractor 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. .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 Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: a. Mr. Rick Anderson, Business Development b. Ms. Kelli Kessler, Administrative Assistant C. Mr. Chase Harris, Operation Manager 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 Contractor and devoting sufficient time to personally supervise the services hereunder. The foregoing principals may not be changed by Contractor 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 Mr. Timothy R. Jonasson, Public Works Director/City Engineer or such other person as may be designated by the City Manager of City. It shall be Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and Contractor 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 Contractor, its principals and employees were a substantial inducement for City to enter into this Agreement. Except as set forth in this Agreement, Contractor 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 Contractor, its agents or employees, perform the services required herein, except as otherwise set forth. Contractor 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. Contractor 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 Contractor with any plans, publications, reports, statistics, records or other data or information pertinent to services to be performed hereunder which are reasonably available to Contractor 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, Contractor 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 Contractor's acts or omissions rising out of or related to Contractor'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 Contractor'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 determined by the Contract Sum in accordance with the following table: Contract Sum Personal Iniury/Property Damage Coverage Less than $50,000 $100,000 per individual; $300,000 per occurrence $50,000 - $300,000 $250,000 per individual; $500,000 per occurrence Over $300,000 $500,000 per individual; $1,000,000 per occurrence Contractor shall carry automobile liability insurance of $3,O00,000 per accident against all claims for injuries against persons or damages to property arising out of the use of any automobile by Contractor, its officers, any person directly or indirectly employed by Contractor, any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly or indirectly out of or related to Contractor's performance under this Agreement. If Contractor or Contractor's employees will use personal autos in any way on this project, Contractor 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 Contractor'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. Contractor 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 Contractor 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 Contractor'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 Contractor's Services, to the fullest extent permitted by law, Contractor 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 Contractor, its officers, agents, employees or subcontractors (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of professional services under this agreement. With respect to the design of public improvements, the Contractor 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 Contractor. b. Indemnification for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Contractor 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 Contractor or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents, employees or subcontractors of Contractor. C. General Indemnification Provisions. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor or any other person or entity involved by, for with or on behalf of Contractor in the performance of this agreement. In the event Contractor fails to obtain such indemnity obligations from others as required here, Contractor 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 Contractor 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, Contractor 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 Contractor 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 Contractor 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 Contractor to stop work under this Agreement. and/or withhold any payment(s) which become due to Contractor hereunder until Contractor 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 Contractor's failure to maintain or secure appropriate policies or endorsements. Nothing ln� herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractors' performance of work under this Agreement. 5.4 General Conditions pertaining to provisions of insurance coverage by Contractor. Contractor and City agree to the following with respect to insurance provided by Contractor: 1. Contractor agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insured's City, its officials, employees and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 2004. Contractor also agrees to require all contractors, and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Contractor, or Contractor's employees, or agents, from waiving the right of subrogation prior to a loss. Contractor 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. Contractor 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 Contractor'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 Contractor or deducted from sums due Contractor, 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. Contractor agrees to require its insurer to modify 130 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 Contractor 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. Contractor agrees to ensure that subcontractors, and any other party involved with the project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 11. Contractor 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 Contractor'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 Contractor, 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 Contractor ninety (90) days advance written notice of such change. If such change -results in substantial additional cost to the Contractor, 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. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor 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. Contractor 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. ...y 131 16. Contractor 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 Contractor'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 Contractor under this agreement. Contractor 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 exteht that any other section or provision conflicts with or impairs the provisions of this Section. 21. Contractor 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 Contractor 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. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor 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. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning Contractor's performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Contractor 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 :: 132 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 Contractor, 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 Contractor 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. Contractor shall cause all subcontractors to assign to City any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor 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 Contractor 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 Contractor 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 Contractor 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. Contractor 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 Contractor 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 1.0 133 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 Contractor sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were suffered by City due to the default of Contractor 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 Contractor 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 Contractor. 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 Contractor. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Contractor 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 Contractor. If termination is due to the failure of Contractor 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 Contractor 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 Contractor for the purpose of setoff or partial payment of the amounts owed City as previously stated in Section 7.3. 134 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 Contractor, or any successor in interest, in the event or any default or breach by City or for any amount which may become due to Contractor 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. Contractor 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. Contractor 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. Contractor 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: CITY OF LA QUINTA Attention: Timothy Jonasson 78-495 Calle Tampico P.O. Box 1504 La.Quinta, CA 92247-1504 To Contractor: Clean Street Attention: Mr. Rick Anderson 1937 West 1691" Street Gardena, CA 90247 Phone: (800) 225-7316 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. 135 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 1 .1�� h Ly*'(� — DON ADOLP , May Dated: 0 , CIVIC, City Clerk La Quinta, Cifornia APPROVED AS TO FORM: PATHEKINVJEOON, Cit—y—Attof4aey City of La Quit , California CONTRACTOR: 1 Title: Cheif Executive officer w 136 Exhibit A Scope of Services f . Services to be Provided: Clean Street shall furnish all necessary materials, equipment, labor, and incidentals as required to perform street sweeping for the City of La Quinta. The work involved shall include mechanical and/or manual sweeping of all curbed flow -lines, including all cross gutters, streets and paved center median islands. The areas to be swept consist of all designated streets located within the northern portion of the City as illustrated within Attachment 1, which is made a part of this agreement. Each of the streets identified shall be swept a minimum of once per week. 2. Performance Standards Street sweeping shall be performed in accordance. with accepted standards for routine and emergency municipal street cleaning. Additional performance standards include: A. When necessary for proper street cleaning, more than one pass will be made on the street without additional charge; B. Additional sweeps requested by the City of La Quinta for unsatisfactory performance shall be responded to immediately; C. The City reserves the right to add additional streets and/or other right-of-way to the street schedule. The contractor shall provide any additional sweeping services at the agreed upon. per curb mile cost; D. Contractor shall maintain the sweeping schedule as approved by the City of La Quinta and shall maintain standby equipment to be used in the event of equipment. breakdown or an emergency; E. Sweeping in residential areas shall not commence prior to 7 a.m. F. Sweepers shall not be operated faster than 10 mph when sweeping paper, leaves or light trash, 5 mph when sweeping normal accumulation of dirt, sand and gravel, and 3 mph when sweeping heavy accumulation of dirt, sand and gravel. G. Contractor shall make arrangements with the Coachella Valley Water District (CVWD) to obtain and pay for water necessary for street sweeper operations. The City of La Quinta shall review and approve water access locations. H. The City of La Quinta shall be the sole authority for canceling scheduled street sweeping due to inclement weather. When inclement weather prevents adherence to the regular sweeping schedule for two or less days in a given week, the sweeping areas so affected by the inclement weather shall be swept within seven days of the scheduled sweeping without interruption of regular sweeping schedule. Contractor shall perform all make up work due to inclement weather without additional charge. 137 I. In the case of prolonged inclement weather, the City, at its discretion, will consider the Contractor's request to eliminate sweep days not completed. If sweep days are eliminated, the Contractor shall credit the City for curb miles not performed. J. Contractor shall not sweep on Saturday, Sunday or City recognized holidays. K. Consultant will submit a list of the type of equipment to be utilized, including the year, make and model of each sweeper proposed for providing these services to the City for approval. At a minimum, the Contractor shall provide two (2) primary and one (1) back up sweeper. The two primary sweepers shall be regenerative air vacuum sweepers that comply with South Coast Air Quality Management District (SCAQMD) Rule 1186.1 Less Polluting Sweepers. L. Contractor shall develop a weekly sweeping schedule for approval by the City of La Quinta. At a minimum, eachstreet shall be swept as soon as possible following the weekly trash collection. M. Contractor shall spray street with water during street sweeping operations to the extent required to minimize blown dust/dirt in compliance with AQMD - PM10 requirements. » 138 Exhibit 8 Schedule of Compensation Payment shall be provided to the Contractor for services rendered based upon each curb mile swept. Compensation shall be provided at $25.52 per curb mile. Total compensation for all work under this contract shall not exceed One Hundred Four Thousand Eight Hundred Thirty -Six Dollars and Sixteen Cents ($104,836.16) except as specified in Section 1.6 - Additional Services of the Agreement. The following is a summary of costs to provide the services outlined within Exhibit A of this Agreement for Mechanical Street Sweeping Services. Item Description Unit Est. Qty Unit Cost Extended Cost Street Sweeping Linear Mile 79.0 $25.52 $2,016.08 per week $ 2,016.08 per week Exhibit C Schedule of Performance Contractor shall complete all services within Three Hundred Sixty -Five (365) days, from July,1, 2008 to June 30, 2009. Yearly extensions, not to exceed three (3) one-year extensions, renewable at the beginning of each fiscal year through Fiscal Year 2011/2012, may be allowed, at the City of La Quinta's discretion. 140 Exhibit D Special Requirements The City of La Quinta will provide the Contractor with a disposal site for the refuse collected within the City of La Quinta Corporate Boundary. The City and the Contractor will be responsible for disposal of the refuse. AMENDMENT TO MAINTENANCE SERVICES AGREEMENT BETWEEN CLEANSTREET AND CITY OF LA QUINTA This Amendment to the Maintenance Services Agreement for Mechanical Street Sweeping Services, made and entered into on June 16, 2009, by and between CleanStreet; herein referred to as the ."Contractor" and the CITY OF LA QUINTA, herein referred to as the "City". WITNESSETH: WHEREAS, the City is desirous of Amending its Agreement for Mechanical Street Sweeping Services with CleanStreet to provide for one (1) additional year of service; and WHEREAS, Contractor is agreeable to rendering services for an additional year to the City on the same terms and conditions as contained in the Agreement for Mechanical Street Sweeping Services between Contractor and City. IT IS AGREED that Section 5.0 Insurance and Indemnification of said agreement is hereby amended to read in its entirety as follows: 5.0 INSURANCE AND INDEMNIFICATION. 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 own cost, and submit concurrently with its execution of this Agreement, insurance as described herein. Ali insurance is to be placed with insurers authorized to do business in the State of California with an A. M. Best and Company rating level of A- or better, Class VI or better, or as otherwise approved by the City. Insurance shall include the following (or broader) coverage: a. Insurance Services Office Commercial General Liability coverage "occurrence" form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. b. Insurance Services Office form number CA 0001 or equivalent covering Automobile Liability, including hired and non -owned automobile liability with a minimum limit of $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non -owned and hired auto endorsement to Consultant's commercial general liability policy. C. Consultant shall carry Workers' Compensation Insurance complying with California's worker's compensation laws, including statutory limits for workers' compensation and an Employer's Liability limit no less than $1,000,000 per accident or disease. d. Consultant's pollution liability insurance shall be written on a form acceptable to City providing coverage for liability arising out of sudden, accidental and gradual pollution. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. All activities contemplated in this agreement shall be specifically scheduled on the policy as "covered operations.' The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non -owned disposal sites. Products/completed operations coverage shall extend a minimum of 3 years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors the Policy must include work performed "by or on behalf" of the insured. Policy shall contain no language that would invalidate or remove the insurer's duty. to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. Liability insurance policies required to be provided by Consultant hereunder shall contain or be endorsed to contain the following provisions: e. City, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the Work or related to the Contract. Additional insured status under the general liability requirement shell be provided on Insurance Services Office Form CG 20 10 with an edition date prior to 2004, or its exact equivalent. Additional Insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37 with an edition date prior to 2004. f. General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Coverage will not be limited to City's vicarious liability. g. Liability coverage shell be primary and non-contributing with any insurance maintained by the City. 143 h. Evidence of coverage (including the workers' compensation and employer's liability policies) shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days' prior written notice has been given to City. Such provision shall not include any limitation of liability of the insurer for failure to provide such notice. 1. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of recovery prior to a loss. Consultant waives its right of recovery against City. j. Consultant agrees to deposit with City within fifteen (15) days of Notice to Proceed of the Contract certificates of insurance and required endorsements. k. There shall be no recourse against City for payment of premiums or other amounts with respect to the insurance required to be provided by Consultant hereunder. Any failure, actual or alleged, on the part of City to monitor compliance with these requirements will not. be deemed as a waiver of any rights on the part of City. City has no, additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. I. 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. 5.2 Indemnification. t. 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 liability, claims, suits, actions arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, actual attorney fees incurred by City, court costs, interest, defense costs including fees of expert consultants or expert witnesses incurred in connection therewith and any other costs or expenses of any kind whatsoever incurred in rotation to, as a consequence of or arising out of or in anyway attributable in whole or in part to the performance of this agreement. All obligations under this provision are to be paid by Consultant as the City Incurs them. With respect to the. design of public Improvements, the Consultant shall not be liable for any injuries or property damage resulting from the rouse of the design at a location 'other than that specified in Exhibit C without the written consent of the Consultant. 2. Without affecting the rights of City under any provision of this agreement or this section, Consultant shall not be required to Indemnify and hold harmless City as set forth above for liability attributable to the sole fault Vf City, provided such sole fault is determined by agreement between the parties or by the findings of a court of competent jurisdiction. This exception will apply only in instances where City is shown to have been solely at fault and not in instances where Consultant is solely or partially at fault or in instances where City's fault accounts for only a percentage of the liability involved. In those instances, the obligation of Consultant will be all-inclusive and City will be indemnified for all liability incurred, even though a percentage. of the liability is attributable to conduct of the City. . 3. Consultant acknowledges that its obligation pursuant to this section extends to liability attributable to City, if that liability is less than the sole fault of City. 4. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, sub tier contractor 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. 5. 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 a set forth herein is binding on the successors, assigns, or heirs of Contractor and shall survive the termination of this agreement or this section. IT IS AGREED that "Exhibit C Schedule of Performance" of said Agreement is hereby amended to read in its entirety as follows: Contractor shall complete all services within Three Hundred Sixty Five (365) days, from July 1,.2009 to June 30, 2010. Yearly extensions, not to exceed two (2) one-year extensions, renewable at the beginning of each fiscal year through Fiscal year 2011 /2012, may be allowed, at the City of La Quinta's discretion. IT IS AGREED that "Exhibit A Scope of Services" of said Agreement is hereby amended to add item "N" as follows: N. Contractor shall use vehicles with dedicated alternative fuel sources (i.e. compressed natural gas (CNG), liquefied natural gas (LNG), liquefied petroleum gas (LPG), Hydrogen or hydrogen natural gas blends, electric or gasoline hybrid electric) to fulfill its Agreement with the City of La Guinta. CITY OF LA QUINTA Dated: June 16. 2009 By: THOMAS P. GE OVESE City Manager ATTEST: » 145 VERONICA J. MONTECINO, C ; City Clerk COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Approval of Assignment and Assumption Agreements for Tract Map No. 30092, Piazza Serena, K. Hovnanian Forecast Homes, Inc. RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: 10 STUDY SESSION: PUBLIC HEARING: Approve the assignment and assumption agreements for Tract Map No. 30092, Piazza Serena, K. Hovnanian Forecast Homes, Inc., and authorize the City Manager to approve the agreements. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: Piazza Serena (Tract Map No. 30092) is located north of Avenue 58 and west of Monroe Street (Attachment 1). On February 3, 2005, the City and K. Hovnanian Forecast Homes, Inc. entered into subdivision improvement agreements for Piazza Serena (Attachment 2). K. Hovnanian has sold its interest in this tract to Cado La Quinta, LLC and desires to assign the subdivision improvement obligations to Cado La Quinta, LLC. The developer has requested the City Council's approval of the assignment and assumption agreements. To date, the assignment and assumption agreements (Attachment 3) have been executed by the developers (assignor and assignee) and the associated securities have been submitted. 147 FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve the assignment and assumption agreements for Tract Map No. 30092, Piazza Serena, K. Hovnanian Forecast Homes, Inc. and authorize the City Manager to approve the agreements; or 2. Do not approve the assignment and assumption agreements for Tract Map No. 30092, Piazza Serena, K. Hovnanian Forecast Homes, Inc.; or 3. Provide staff with alternative direction. Respectfully submitted, 4othy R. na so .E. Public Works ect ity Engineer Approved for submission by: Thomas P. Genovese, City Manager Attachments: 1. Vicinity Map 2. Subdivision Improvement Agreements 3. Assignment and Assumption Agreements JAB TM 30092 — PIAZZA SERENA � I s STATE HIGHWAY 111 �i sa o ok PROJECT SITE Alm AYE w I vIC AVE. 66 ATTACHMENT 1 COACT a. t 1►. TY W NOT TO SCALE 149 ATTACHMENT 2 CrTY OF LA QUMTA SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO.30092 ON -SITE IMPROVEMENTS THIS SUBDIM IMPROVEMENT AGREEMENT (the "Agrrjigp�rrwnt") is made and entered into this day of =21CI i 9 . 20 by and between K Hovnanian Forecast Homes, Inc a Callf6mia Corporation hereinafter referred to as "Subdivider," and the City of La Quinta, a municipal corporation of the State of California, hereinafter referred to as "City." RECITALS: A. Subdivider has prepared and filed a final map or Tract map (the "Map") of a unit of land in the City of La Quints, County of Riverside, which unit of land is known as Tract No. 30092 (the " Erect') pursuant to the provisions of Section 66410, at sec. of the California Government Code (the "Subdivision Map Act"). B. Prior to approval of the Map, Subdivider is required to install or agree to install certain public and private improvements (the "Improvements"). C. The Improvements have not been installed and accepted at this time. D. It is therefore necessary that Subdivider and City enter into an agreement for the installation of the Improvements as provided in Section 66462 of the Subdivision Map AcL NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. Improvement Plans. Prior to submittal of the Map for approval by the City Council, Subdivider shall furnish original improvement plans meeting the requirements of the City Engineer. 2. Improvements. Subdivider shall construct the public and private street, drainage, utility, landscaping, and other improvements required to be constructed or agreed to be constructed under this Agreement as listed in Exhibit "A", and shall bear the full cost thereof. The methods, standards, specifications, sequence, and scheduling of construction shall be as approved by the City Engineer. 3. Improvement Security. A. One class of security to be provided by Subdivider, hereinafter referred to as "performance security," shall assure the faithful performance of this Agreement including construction of the Improvements, payment of Subdividers fair share of Improvements which have been or will be constructed by others ("Participatory Improvements'), and payment of plan check and perk fees. A second class of security to be provided by Subdivider, hereinafter referred to as "payment security," shall assure the payment of the cost of labor, equipment and materials supplied to construct the Improvements. A third class of security to be provided by Subdivider, hereinafter referred to as "warranty security," shall serve as a guarantee and warranty of the Improvements for a period of one year following the completion and acceptance of the Improvements. Subdivider shall furnish performance and payment security prior to and as a condition of City Council approval of the Map. Subdivider shall provide warranty security after Improvements are complete and accepted by the City Council and prior to or concurrently with the final release of performance security. Warranty security shall not be required for Monumentation or Participatory improvements. However, the City may utilize Monumentation Security for performance of or payment for the work in accordance with the Subdivision Map Act. As part of the obligation secured by each of the performance security, payment security and warranty security, and in addition to the face amount of each such security, each such security shall include and assure the payment of costs and reasonable expenses and fees, including C:%DmnW W4 Seegosc ig�oLLa� rSeOWT"Pa" M1deMl RMAOLK1SCN M-SIAdm '. w 1 JO id? reasonable attorneys fees, incurred by City in successfully enforcing the obligations thereby secured. B. Improvement security shall conform with Section 66499 of the California Government Code and one or more of the following: 1) A cash deposit with City or a responsible escrow agent or trust company, at City's option 2) Surety bonds, of the form specified In subsection 66499.2 of the California Government Code, issued by a surety or sureties listed In the U.S. Department of Treasury Circular 570 (latest version). 3) Certificates of deposit, in City's name, from one or more financial institutions subject to regulation by the state or federal government and having a financial quality rating of "A" or better and a commitment reliability rating of "R-2" or better on the Investment Data Exchange (of the Los Angeles County Treasurers office). 4) Irrevocable letters of credit, issued by one or more financial institutions meeting the requirements of Paragraph (3), pledging that the funds necessary to carry out the completion of the Improvements are on deposit, guaranteed for payment, and constitute a trust fund which is not subject to levy or attachment by any creditor of the depositor until released by City. Letters of credit shall guarantee that all or any portion of the funds available pursuant to the letters of credit will be paid upon the written demand of City and that such written demand need not present documentation of any type as a condition of payment, including proof of loss. The duration of any such letter of credit shall be for a period of not less than one year from the execution of the agreement with which it is provided and shall state, on its face, that the letter of credit will be automatically renewed until such time that City authorizes its expiration or until sixty (60) days after City receives notice from the financial institution of intent to allow expiration of the letter of credit. 5) A lien upon the subdivided property, If City finds that it would not be in the public interest to require the installation of the Improvements sooner than two (2) years after recordation of the final map or Tract map for which the Improvements are required. The lien shall provide a collateral value of three (3) times the estimated cost of the Improvements and shall include the power of sale of the real property, all buildings and improvements thereon, or that may be erected upon or made thereto, together with all hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reservations, remainders, rents, issues, and profits thereof. The collateral value of the property shall be established at Subdividers expense through an appraisal approved by City. 6) An instrument of credit from an agency of the state, federal or local government, when any agency of the state, federal, or local government provides at least Twenty Percent (20%) of the financing for the Improvements. 7) When Subdivider is a non-profit organization, security may be negotiable bonds, of the kind approved for securing deposits of public moneys with City or in favor of City, as specified in Section 16430 of the California Government Code, deposited, at City's option, with City or a responsible escrow agent or trust company. C. All securities shall be furnished in accordance with the provisions of Exhibit A. The amount of the performance security shall equal One Hundred Percent (100%) of the estimated cost of constructing the Improvements, including payment of plan check and permit fees, as estimated by the City Engineer or a duty authorized representative of the City Engineer. The amount of Payment security shall equal the amount of the amount of performance security, except as otherwise set forth in Exhibit A, and shall be furnished as a separate security. Warranty security shall equal Ten Percent (10%) of the amount of performance security except as otherwise set forth in Exhibit A. D. At the time of submittal of security, Subdivider shall pay to City administrative fees applicable to the form of security provided. Administrative fees shall apply to the subdivision (final map, Tract map or waiver of Tract map) rather than to individual security instruments. The fees shall be paid .,.. 8@Khg00. Tmpmq.� F0"% xlso 8L, 151 za, separately for eacti different form and/or source (surety or financial institution) of security initially submitted and for substitution of securities but shall not be required for submittal of warranty security the warranty security Is of the same form and from the same source as the performance security it replaces. Administrative fees for security shall be as follows: 1) For certificates of deposit, bonds and letters of credit as described in Paragraphs 2), 3) and 4) of SECTION 3.8., which require the establishment of evidence of the reliability of the surety or financial institution, the administrative fee shall be One Hundred Fifty Dollars ($150.00). 2) For liens on real property as described in Paragraph 5) of SECTION 3.B., for which City will prepare lien agreements and subordination agreements, administer valuation of the real property and administer the agreements over the life of the lien, all of which require legal assistance and financial advice, Subdivider shall pay to City an administration fee of One Half of One Percent (0.5%) of the estimated cost of the improvements secured but not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00). 3) For other forms of security listed in Section 3 B, above, there will be no administrative fee. E. Participatory Improvements, if any, are identified in Exhibit A. Security for Participatory Improvements shall remain in place until the Participatory Improvements are constructed and actual costs are known and paid by Subdivider, or until Subdivider pays to City the estimated cost of the Participatory Improvements, and shall guarantee the reimbursement by Subdivider of Subdivider's share of the cost of the Participatory Improvements. Payment security and warranty security shall not be required for Participatory Improvements. Upon written demand from City, Subdivider shall deposit cash with City in lieu of or in replacement of security guaranteeing Participatory Improvements. If Subdivider fails to deposit said cash within 30 days of the date of the written demand from City, City may present a written demand to Subdivider's Surety for payment of said cash and Subdivider's Surety shall pay to City the lesser of: 1) the amount demanded, or 2) the amount of the security. F. Security shall not expire, be reduced or become wholly or partially invalid for any reason, including non-payment of premiums, modifications of this Agreement and/or expiration of the time for performance stated in this Agreement, without express authorization from City unless the surety provides City with sixty (60) days written notice by registered or certified mail, return receipt requested. G. Security shall be released in the following manner. 1) Performance security shall be released upon the final completion and acceptance or approval, by the City Council of the improvements subject to the provisions of paragraph B. 2) The City Engineer may authorize partial reduction of performance security as work progresses, upon application by Subdivider. However, no such reduction shall be for an amount less than Ten Percent (10%) of the total performance security provided for the faithful performance of the act or work. In no event shall security be reduced below that required to guarantee the completion of the act or work or obligation secured, plus Ten Percent (10%). The City Engineer shall not allow more than two partial reductions of security furnished for any improvement agreement 3) Participatory Improvement security shall be released upon payment by Subdivider of Subdivider's share of the cost or estimated cost of the Participatory Improvements. 4) If City receives no notice of recorded claims of lien, labor and materials security shall be released in full 90 days after final acceptance and/or approval by the City Council, of the Improvements. if City receives notice of any recorded lien, the provisions of the Subdivision Map Act shall apply. 5) Warranty security not utilized during the warranty period shall be released one year after final acceptance or approval by the City Council of all Tract Improvements. However, if at the end of the one-year warranty period, there are one or more outstanding requests by City for performance of work or provision of materials under the terms of the warranty, warranty security shall be retained until the outstanding requests are satisfied or until Subdivider has made other arrangements satisfactory to the City Engineer. 4. Permits Reouired. Prior to commencing any phase of work, Subdivider shall obtain all permits required for that phase of work and pay all required fees. Work performed under a permit or permits shall comply with all provisions of the required permits. 5. Off -site improvements. When the construction of one or more of the Improvements requires or necessitates the acquisition of real property not owned by Subdivider or City, Subdivider shall use its best efforts purchase such real property at a reasonable price. In the event that Subdivider is unsuccessful, despite Its best efforts, to acquire such real property at a reasonable price, Subdivider may request in writing that City attempt to acquire such real property. City may, but is not required to, agree to attempt to acquire such real property on behalf of Subdivider. If City so agrees, City and Subdivider shall enter a separate written agreement in a form acceptable to the City Attorney. Said separate agreement shall provide that Subdivider advance to City One Hundred Fifty Percent (150%) of the appraised fair market value of the real property. Any unexpended portion of said advance shall be refunded to Subdivider. Any additional funds required for acquisition of the real property shall be paid by Subdivider to City upon the conveyance of said real property to Subdivider. In no event shall the failure of Subdivider or City to acquire such real property excuse, waive, or otherwise terminate Subdividers obligation to construct the applicable improvement pursuant to this Agreement or the Conditions of Approval 6. Completion of Improvements. Subdivider shall begin construction of the improvements within ninety (90) days and shall complete construction within twelve (12) months after the approval of this Agreement. Portions of the Improvements may be completed at a later date, as determined by the City Engineer or as set forth in Exhibit A. 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 agreement, to revise improvement security requirements as necessary to ensure completion of the improvements, and/or to require modifications in the standards or sequencing of the Improvements in response to changes in standards or conditions affecting or affected by the Improvements. Said failure shall not otherwise affect the validity of this agreement or Subdividers obligations hereunder. 7. Force Maieure. In the event that Subdivider Is unable to perform within the time limits herein due to strikes, act of God, or other events beyond Subdividers control, the time limits for obligations affected by such events will be extended by the period of such events. 8. Time Extension. Subdivider may make application in writing to the City Council for an extension of time for completion of the Improvements. The City Council, in its sole and absolute discretion, may approve or deny the request or conditionally approve the extension with additions or revisions to the terms and conditions of this Agreement As a condition of the time extension, Subdivider shall furnish securities, similar in form and substance to those required in SECTION 3 hereinabove, to cover the period of extension. The value of the securities shall be sufficient to ensure the performance of and payment for Improvements that remain incomplete at the time of the extension, and to provide warranty security on completed Improvements. 9. Survey Monuments. Before final approval of street improvements, Subdivider shall place survey monuments in accordance with the provisions of Sections 66495, at sec. of the Subdivision Map Act and of the La Quinta Municipal Code. Subdivider shall provide the City Engineer written proof that the monuments have been set, evidence of payment and receipt thereof by the engineer or surveyor setting the monuments, and intersection monument tie -outs for monuments set in public streets. 10. Final Acceptance of Improvements. At the completion of construction and prior to acceptance of the Improvements by City, Subdivider shall submit a request for final approval by City. The request shall be accompanied by any required certifications from Subdividers engineers or surveyors, approval letters from other agencies having jurisdiction over and approval authority for improvements required ..WSgt&VeodgpwrdU�000$MWWVrawwmft Fk*X0LK1M sffE-gadW 153 4d7 by this Agreement or the Conditions of Approval, and any required construction quality documentation not previously submitted. Upon receipt of said request, the City Engineer or a duly -authorized representative will review the required documentation and will inspect the Improvements. If the Improvements are determined to be in accordance with applicable City standards and specifications, and as provided herein, obligations required by the Conditions of Approval and this Agreement have been satisfied, and Subdivider has provided revised plans as required in Paragraph 11, hereinafter, the City Engineer shall recommend acceptance of the Improvements by the City Council. 11. Revisions to Plans. When the Improvements have been inspected and approved by the City Engineer, Subdivider shall make any necessary revisions to the original plans held by City so the plans depict the actual Improvements constructed. When necessary revisions have been made, each separate sheet of the plans shall be clearly marked with the words "As -Built," "As -Constructed," or "Record Drawing," the marking shall be stamped by an engineer or surveyor, as appropriate for the improvements thereon, who is licensed to practice in Cafrfomia, and the plans shall be resubmitted to the City Engineer. 12. Improvement Warranty. Subdivider hereby guarantees the Improvements to City for a period of one (1) year, beginning on the date of final acceptance of the Improvements by the City Council, against any defective work or labor done, or defective materials furnished, and shall repair or replace such defective work or materials. 13. Release of Security. City shall retain and release securities in accordance with the provisions of Section 3 of this agreement Prior to the release of payment security, the City Engineer may require Subdivider to provide a title report or other evidence sufficient to show claims of lien, if any, that may affect the amount of payment security released. 14. City Right to Cure. If Subdivider fails to perform any obligation hereunder and such obligation has not been performed within sixty (60) days after written notice of default from City, then City may perform the obligation, and Subdivider shall pay the entire cost of such performance by City including costs of suit and reasonable attorney's fees incurred by City in enforcing such obligation. In cases of emergency or compelling public interest, as determined by the City Engineer, the requirement for written notice of default and/or the passage of sixty (60) days shall be deemed waived and all other provisions of this Article shall remain in effect 15. Indemnification. Subdivider hereby binds itself, its officers, employees, agents representatives, executors, administrators, guarantors, heirs, and assigns, and agrees to Indemnify, defend and hold City and its officers, employees, agents, representatives, and assigns harmless from and against any losses, claims, demands, actions, or causes of action of any nature whatsoever, arising out of or in any way connected with Subdividees performance herein under, including costs of suit and reasonable attorneys' fees. 16. No Modification of Conditions. This Agreement shall in no respect act to modify or amend any provision of the Conditions of Approval. In the event that any requirement or condition of this Agreement is inconsistent with or fails to include one or more provisions of the Conditions of Approval, which document(s) is (are) incorporated herein by reference, the provisions in the Conditions of Approval shall remain In effect and shall control. W. Severabiliri. In the event that any provision or provisions of this Agreement are held unenforceable, all provisions not so held shall remain in full force and effect 16. General Provisions. A. All notices pursuant to this Agreement shall be in writing and shall be personally delivered or sent by registered or certified mail, return receipt requested, to the parties at their respective addresses indicated hereon. Notices personally delivered shall be effective upon delivery. Notices mailed as provided herein and sent postage prepaid shall be effective upon the date of delivery or refusal indicated on the return receipt Either party may change its address for notices hereunder by notice to the other given in the manner provided in this subparagraph. CN)ommmft " UcW SonVoWmpmq ktw*FWXOLK1AONSffE..3WdM 154 6017 EA B. The terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns, and successors of the parties hereto. C. Neither party to this Agreement relies upon any warranty or representation not contained in this Agreement. D. This Agreement shall be governed by and Interpreted with respect to the laws of the State of California. E. In the event of any dispute between the parties with respect to this Agreement, the prevailing party shall be entitled to prompt payment of its reasonable attorneys' fees from the non -prevailing party. F. Any failure or delay 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 provided for hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY: City of La Quints 78-495 Calle Tampico La Quints, CA 92253 Thomas P. Genovese, City Manager Date i Jaime Dana Banfield K. Hovnanian Forecast Homes, Inc 3636 Concours Strqat. Ste 320 Ontario, CA 917W / Date VP Reviewed an Approv Sales &Marketing City ngin Date V App ved es �Fo � AWAtfahlbf Date 155 C:10owmwMs Y,4 8ampN�ps�oYcol BMItrW\TwnOMY tresrwl FIM6101K1610NBffF-61AEx Exhibit A ON -SITE SECURITY — TRACT MAP NO.30092 Improvements designated as "Participatory" have been or will be constructed by others. Security for Participatory Improvements shall remain in place indefinitely until called upon or released by City. Monumentation security shall guarantee performance of or payment for the work and shall be utilized or released as specified in Chapter 4, Article 9 of the Subdivision Map Act. As elements of the work are completed, Subdivider may request a maximum of two partial releases of performance security. Partial releases shall be for not less than ten percent (10%) of the total performance security for the tract and shall not reduce total performance security below the amount necessary to complete the Improvements plus ten percent (10%) of the original amount. Partial releases of performance security will be evaluated and may be granted, in whole or in part, by the City Engineer. Requests for partial releases, setting forth in detail the amount of work completed and the value thereof, shall be made in writing to the City Engineer. Labor & materials security shall remain in place until 90 days after all required tract improvements are complete and accepted by the City Council. Improvement Description Performance Labor & Materials Grading (10% of Total, Already Bonded) $ 153,638 $ 153,538 Drainage $ 59,600 $ 59,600 Street Improvements $ 683.633 $ 683,633 Domestic Water $ 546.896 $ 546,896 Sanitary Sewer $ 225,130 $ 225,130 Dry Utilities $ 819.000 $ 819,000 Perimeter Walls $ 328,050 $ 328,050 Monumentation $ 21,280 $ - Totals $ 2,837,100 $ 2,815,800 Standard 10% Contingency $ 283,700 $ 281,600 Total Construction Coat $ 3,120,800 $ 3,097,400 Professional Fees, Design 10% $ 312,100 $ 309,700 Professional Fees, Const 10% $ 312,100 $ 309,700 No Plans Contingency 25% $ 780,200 $ 774,400 Bond Amount $ 4,525,200 $ 4,491,200 rU C:V�w89ft1ng01&wPVMUN018WkWXT■"pm"y,wnstFk10uc1so SKOW 7a17 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California as. Counlyof _San u�i dfnr reknt1 On olffi i 9.-QMZ/ before me, personally appeared 12ny Mn Rpersonaly known to me ❑ proved to me on the basis of satisfactory evidence to be the persor)(s) whose nameL Were subscribed to the within instrument and acknowledged to me that he/slte/they executed the same In McAmAheir authorized capacityl", and that by hielher/their signatumisjon the instrument the person S], or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand a5d official SO spvw.al aarvwr OPTIONAL mm0 dw edmnradan debW is not mq &ed by km amayproar wRgade W pares* ffl" an dw d=ww# and oa,nvrerenr havdiddrr removal aad reamdanaaf of ova fan to aradW doa~t Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capecity(les) Claimed by Signer Signer's Name: ❑ Individual Top of ft e e ❑ Corporate Officer — Title(s): ❑ Partner — O Limited O General ❑ Attomay-in-Fad ❑ Trustee ❑ Guardian or Conservator ❑ Other. Signer Is Representing: o low aemw aaer�aoeeaen •ease o. saoNw. ro am awz• wowm,. �...,,,sa.,x-....�..w......-.,, .» 157 CITY of LA QumTA SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO.30092 OFF -SITE IMPROVEMENTS THIS SUBD SION IMPROVEMENT AGREEMENT (the "Agreegnt') is made and entered into this day of iohryjs/✓ 20 by and between K. Hovnanian Forecast Homes, Inc, a CallforniA Corporation hereinafter referred to as "Subdivider," and the City of La Quints, a municipal corporation of the State of California, hereinafter referred to as "City." RECITALS: A. Subdivider has prepared and filed a final map or Tract map (the "Map") of a unit of land in the City of Le Quints, County of Riverside, which unit of land is known as Tract No. 30092 (the'Tract') pursuant to the provisions of Section 66410, at sec. of the California Government Code (the "Subdivision Map Act'). B. Prior to approval of the Map, Subdivider is required to install or agree to install certain public and private improvements (the "Improvements"). C. The Improvements have not been installed and accepted at this time. D. It is therefore necessary that Subdivider and City enter into an agreement for the installation of the Improvements as provided in Section 66462 of the Subdivision Map Act. NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. Improvement Plans. Prior to submittal of the Map for approval by the City Council, Subdivider shall furnish original improvement plans meeting the requirements of the City Engineer. 2. Improvements. Subdivider shall construct the public and private street, drainage, utility, landscaping, and other Improvements required to be constructed or agreed to be constructed under this Agreement as listed in Exhibit "A", and shall bear the full cost thereof. The methods, standards, specifications, sequence, and scheduling of construction shall be as approved by the City Engineer. 3. Improvement Security. A. One class of security to be provided by Subdivider, hereinafter referred to as "performance security," shall assure the faithful performance of this Agreement including construction of the Improvements, payment of Subdivider's fair share of Improvements which have been or will be constructed by others ("Participatory Improvements"), and payment of plan check and permit fees. A second class of security to be provided by Subdivider, hereinafter referred to as "payment security," shall assure the payment of the cost of labor, equipment and materials supplied to construct the Improvements. A third class of security to be provided by Subdivider, hereinafter referred to as "warranty security, shall serve as a guarantee and warranty of the Improvements for a period of one year following the completion and acceptance of the Improvements. Subdivider shall furnish performance and payment security prior to and as a condition of City Council approval of the Map. Subdivider shall provide warranty security after Improvements are complete and accepted by the City Council and prior to or concurrently with the final release of performance security. Warranty security shall not be required for Monumentation or Participatory Improvements. However, the City may utilize Monumentation Security for performance of or payment for the work in accordance with the Subdivision Map Act. 'As part of the obligation secured by each of the performance security, payment security and warranty security, and in addition to the face amount of each such security, each such security shall include and assure the payment of costs and reasonable expenses and fees, including reasonable aftomey's fees, incurred by City in successfully enforcing the obligations thereby secured. 158 tar C:DOM"" r S&KFVAKhPWMUjXW sdaniistrw p"Imy 1M RWOLK1610FFSrIE_ KN B. Improvement security shall conform with Section 66499 of the California Government Code and one or more of the following: 1) A cash deposit with City or a responsible escrow agent or trust company, at City's option 2) Surety bonds, of the form specified in subsection 66499.2 of the California Government Code, issued by a surety or sureties listed in the U.S. Department of Treasury Circular 570 (latest version). 3) Certificates of deposit in City's name, from one or more financial institutions subject to regulation by the state or federal government and having a financial quality rating of "A" or better and a commitment reliability rating of "R-2" or better on the Investment Data Exchange (of the Los Angeles County Treasurer's office). 4) Irrevocable letters of credit, issued by one or more financial institutions meeting the requirements of Paragraph (3), pledging that the funds necessary to carry out the completion of the Improvements are on deposit, guaranteed for payment, and constitute a trust fund which is not subject to levy or attachment by any creditor of the depositor until released by City. Letters of credit shall guarantee that all or any portion of the funds available pursuant to the letters of credit will be paid upon the written demand of City and that such written demand need not present documentation of any type as a condition of payment, including proof of loss. The duration of any such letter of credit shall be for a period of not less than one year from the execution of the agreement with which it is provided and shall state, on its face, that the letter of credit will be automatically renewed until such time that City authorizes its expiration or until sixty (60) days after City receives notice from the financial Institution of intent to allow expiration of the letter of credit 5) A lien upon the subdivided property, if City finds that it would not be in the public Interest to require the installation of the Improvements sooner than two (2) years after recordation of the final map or Tract map for which the Improvements are required. The lien shall provide a collateral value of three (3) times the estimated cost of the Improvements and shall include the power of sale of the real property, all buildings and improvements thereon, or that may be erected upon or made thereto, together with all hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reservations, remainders, rents, issues, and profits thereof. The collateral value of the property shall be established at Subdivider's expense through an appraisal approved by City. 6) An instrument of credit from an agency of the state, federal or local government, when any agency of the state, federal, or local government provides at least Twenty Percent (20%) of the financing for the Improvements. 7) When Subdivider is a non-profit organization, security may be negotiable bonds, of the kind approved for securing deposits of public moneys with City or in favor of City, as specified in Section 16430 of the California Government Code, deposited, at City's option, with City or a responsible escrow agent or trust company. C. All securities shall be furnished in accordance with the provisions of Exhibit A. The amount of the performance security shall equal One Hundred Percent (100%) of the estimated cost of constructing the Improvements, including payment of plan check and permit fees, as estimated by the City Engineer or a duly authorized representative of the City Engineer. The amount of Payment security shall equal the amount of the amount of performance security, except as otherwise set forth in Exhibit A, and shall be furnished as a separate security. Warranty security shall equal Ten Percent (10%) of the amount of performance security except as otherwise set forth in Exhibit A. D. At the time of submittal of security, Subdivider shall pay to City administrative fees applicable to the form of security provided. Administrative fees shall apply to the subdivision (final map, Tract map or waiver of Tract map) rather than to individual security instruments. The fees shall be paid separately for each different form and/or source (surety or financial institution) of security Initially submitted and for substitution of securities but shall not be required for submittal of warranty C:1Dmm &-48"p'VAKhWwmMAc&1 SWnp%Twmm y kdmt FdNWLK1510FFSrrE—Sihdx 159 20f7 security the warranty security is of the same form and from the same source as the performance security It replaces. Administrative fees for security shall be as follows: 1) For certificates of deposit, bonds and letters of credit as described In Paragraphs 2), 3) and 4) of SECTION 3.8., which require the establishment of evidence of the reliability of the surety or financial institution, the administrative fee shall be One Hundred Fifty Dollars ($150.00). 2) For liens on real property as described in Paragraph 5) of SECTION 3.8., for which City will prepare lien agreements and subordination agreements, administer valuation of the real property and administer the agreements over the life of the lien, all of which require legal assistance and financial advice, Subdivider shall pay to City an administration fee of One Half of One Percent (0.5%) of the estimated cost of the improvements secured but not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00). 3) For other forms of security listed in Section 3 8, above, there will be no administrative fee. E. Participatory Improvements, if any, are identified in Exhibit A Security for Participatory Improvements shall remain in place until the Participatory Improvements are constructed and actual costs are known and paid by Subdivider, or until Subdivider pays to City the estimated cost of the Participatory Improvements, and shall guarantee the reimbursement by Subdivider of Subdivider's share of the cost of the Participatory Improvements. Payment security and warranty security shall not be required for Participatory Improvements. Upon written demand from City, Subdivider shall deposit cash with City in lieu of or in replacement of security guaranteeing Participatory Improvements. If Subdivider fails to deposit said cash within 30 days of the date of the written demand from City, City may present a written demand to Subdivider's Surety for payment of said cash and Subdividers Surety shall pay to City the lesser of: 1) the amount demanded, or 2) the amount of the security. F. Security shall not expire, be reduced or become wholly or partially invalid for any reason, including non-payment of premiums, modifications of this Agreement and/or expiration of the time for performance stated in this Agreement, without express authorization from City unless the surety provides City with sixty (60) days written notice by registered or certified mail, return receipt requested. G. Security shall be released In the following manner. 1) Performance security shall be released upon the final completion and acceptance or approval, by the City Council of the Improvements subject to the provisions of paragraph B. 2) The City Engineer may authorize partial reduction of performance security as work progresses, upon application by Subdivider. However, no such reduction shall be for an amount less than Ten Percent (10%) of the total performance security provided for the faithful performance of the act or work In no event shall security be reduced below that required to guarantee the completion of the act or work or obligation secured, plus Ten Percent (10%). The City Engineer shall not allow more than two partial reductions of security furnished for any improvement agreement. 3) Participatory Improvement security shall be released upon payment by Subdivider of Subdivider's share of the cost or estimated cost of the Participatory Improvements. 4) If City receives no notice of recorded claims of lien, labor and materials security shall be released in full 90 days alter final acceptance and/or approval by the City Council, of the Improvements. If City receives notice of any recorded lien, the provisions of the Subdivision Map Act shall apply., 5) Warranty security not utilized during the warranty period shall be released one year after final acceptance or approval by the City Council of all Tract Improvements. However, If at the end of the one-year warranty period, there are one or more outstanding requests by City for performance of work or provision of materials under the terms of the warranty, warranty C:10ooanNOr mOBWirpNdrptr IeM1Yi0NTMporW hvrnN Fft6MK1S0rr8nE_8Md- . w 1 C'O oan security shall be retained until the outstanding requests are satisfied or until Subdivider has made other arrangements satisfactory to the City Engineer. 4. Permits Required. Prior to commencing any phase of work, Subdivider shall obtain all permits required for that phase of work and pay all required fees. Work performed under a permit or pemiits shall comply with all provisions of the required permits. 5. Off-ske Improvements. When the construction of one or more of the Improvements requires or necessitates the acquisition of real property not owned by Subdivider or City, Subdivider shall use Its best efforts purchase such real property at a reasonable price. In the event that Subdivider is unsuccessful, despite its best efforts, to acquire such real property at a reasonable price, Subdivider may request in writing that City attempt to acquire such real property. City may, but is not required to,. agree to attempt to acquire such real property on behalf of Subdivider. If City so agrees, City and Subdivider shall enter a separate written agreement in a form acceptable to the City Attorney. Said separate agreement shall provide that Subdivider advance to City One Hundred Fifty Percent (150%) of the appraised fair market value of the real property. Any unexpended portion of said advance shall be refunded to Subdivider. Any additional funds required for acquisition of the real property shall be paid by Subdivider to City upon the conveyance of said real property to Subdivider. In no event shall the failure of Subdivider or City to acquire such real property excuse, waive, or otherwise terminate Subdivider's obligation to construct the applicable improvement pursuant to this Agreement or the Conditions of Approval. 6. Completion of Improvements. Subdivider shall begin construction of the Improvements within ninety (90) days and shall complete construction within twelve (12) months after the approval of this Agreement. Portions of the Improvements may be completed at a later date, as determined by the City Engineer or as set forth in Exhibit A. 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 agreement, to revise improvement security requirements as necessary to ensure completion of the improvements, and/or to require modifications in the standards or sequencing of the Improvements In response to changes in standards or conditions affecting or affected by the Improvements. Said failure shall not otherwise affect the validity of this agreement or Subdivider's obligations hereunder. . 7. Force Maieure. In the event that Subdivider is unable to perform within the time limits herein due to strikes, act of God, or other events beyond Subdividers control, the time limits for obligations affected by such events will be extended by the period of such events. 6. Time Extension. Subdivider may make application in writing to the City Council for an extension of time for completion of the Improvements. The City Council, in its sole and absolute discretion, may approve or deny the request or conditionally approve the extension with additions or revisions to the terms and conditions of this Agreement. As a oondkion of the time extension, Subdivider shall furnish securities, similar in forth and substance to those required in SECTION 3 hereinabove, to cover the period of extension. The value of the securities shall be sufficient to ensure the performance of and payment for Improvements that remain incomplete at the time of the extension, and to provide warranty security on completed Improvements. 9. Survey Monuments. Before final approval of street improvements, Subdivider shall place survey monuments in accordance with the provisions of Sections 66495, at sec. of the Subdivision Map Act and of the La Ouinta Municipal Code. Subdivider shall provide the City Engineer written proof that the monuments have been set, evidence of payment and receipt thereof by the engineer or surveyor setting the monuments, and intersection monument tie -outs for monuments set in public streets. 10. Final Acceptance of Improvements. At the completion of construction and prior to acceptance of the Improvements by City, Subdivider shall submit a request for final approval by City. The request shall be accompanied by any required certifications from Subdivider's engineers or surveyors, approval letters from other agencies having jurisdiction over and approval authority for improvements required by this Agreement or the Conditions of Approval, and any required construction quality documentation not previously submitted. l awoam+. «.m a.tl4wa wSeUV.Ranp"ry VAWWFw.unu sarsffFLsdW ', «► 161 Oar Upon receipt of said request, the City Engineer or a duty -authorized representative will review the required documentation and will inspect the Improvements. If the Improvements are determined to be in accordance with applicable City standards and specifications, and as provided herein, obligations required by the Conditions of Approval and this Agreement have been satisfied, and Subdivider has provided revised plans as required in Paragraph 11, hereinafter, the City Engineer shall recommend acceptance of the Improvements by the City Council. 11. Revisions to Plans. When the Improvements have been inspected and approved by the City Engineer, Subdivider shall make any necessary revisions to the original plans held by City so the plans depict the actual Improvements constructed. When necessary revisions have been made, each separate sheet of the plans shall be dearly marked with the words "As -Built," "As -Constructed," or "Record Drawing," the marking shall be stamped by an engineer or surveyor, as appropriate for the improvements thereon, who is licensed to practice in Calltomia, and the plans shall be resubmitted to the City Engineer. 12. Improvement Warranty. Subdivider hereby guarantees the Improvements to City for a period of one (1) year, beginning on the date of final acceptance of the Improvements by the City Council, against any defective work or labor done, or defective materials furnished, and shall repair or replace such defective work or materials. 13. Release of Security. City shall retain and release securities in accordance with the provisions of Section 3 of this agreement Prior to the release of payment security, the City Engineer may require Subdivider to provide a title report or other evidence sufficient to show claims of lien, if any, that may affect the amount of payment security released. 14. City Rioht to Cure. If Subdivider falls to perform any obligation hereunder and such obligation has not been perforated within sixty (60) days after written notice of default from City, then City may perform the obligation, and Subdivider shall pay the entire cost of such performance by City including costs of suit and reasonable attorneys fees incurred by City in enforcing such obligation. in cases of emergency or compelling public interest, as determined by the City Engineer, the requirement for written notice of default and/or the passage of sixty (60) days shall be deemed waived and all other provisions of this Article shall remain in effect 15. Indemnification. Subdivider hereby binds itself, its officers, employees, agents, representatives, executors, administrators, guarantors, heirs, and assigns, and agrees to indemnify, defend and hold City and its officers, employees, agents, representatives, and assigns harmless from and against any losses, claims, demands, actions, or causes of action of any nature whatsoever, arising out of or in any way connected with Subdivider's performance herein under, including costs of suit and reasonable attorneys' fees. 16. No Modification of Conditions. This Agreement shall in no respect act to modify or amend any provision of the Conditions of Approval. In the event that any requirement or condition of this Agreement is inconsistent with or fails to include one or more provisions of the Conditions of Approval, which document(s) is (are) Incorporated herein by reference, the provisions in the Conditions of Approval shall remain in effect and shall control. 17. Severability. In the event that any provision or provisions of this Agreement are held unenforceable, all provisions not so held shall remain in full force and effect 18. General Provisions. A. All notices pursuant to this Agreement shall be in writing and shall be personally delivered or sent by registered or certified mail, return receipt requested, to the parties at their respective addresses Indicated hereon. Notices personally delivered shall be effective upon delivery. Notices mailed as provided herein and sent postage prepaid shall be effective upon the date of delivery or refusal indicated on the return receipt Either party may change its address for notices hereunder by notice to the other given in the manner provided in this subparagraph. B. The terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns, and successors of the parties hereto. % C:WoaNwWand8@8kVO*dNPwrd1OGW MWTwpm" a 0 F1ftWLR7510FF3M_8Lkd= '�•w 16" 5d7 C. Neither party to this Agreement relies upon any warranty or representation not contained in this Agreement. D. This Agreement shall be governed by and Interpreted with respect to the laws of the State of California. E. In the event of any dispute between the parties with respect to this Agreement, the prevailing party shall be entitled to prompt payment of its reasonable attorneys' fees from the non -prevailing party. F. Any failure or delay 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 provided for hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY: City of Le Quints 78-495 Calls Tampico Le Quints, CA 92247 60/777-7075 Thomas P. Genovese, City Manager Date ATIF itA Subdivider Address: Jaime Dana Banfield K Hovnanian Forecast Homes, Inc 3536 Concours Street, Ste 320 O er , 91764 By: Roy Moffe# Title: VP Sales & tin By: Title: Reviewed and Approved: list ■ 40ty n"gin WAtomey e C:,Doamwl..111BN111q.IbMpvrolLxM■.mnp.1T■mpaary ea.ou FIp1DLK15QMrrF,-SLkm ',N 163 Exhibit A OFF -SITE SECURITY —TRACT MAP NO.30092 Improvements designated as "Participatory" have been or will be constructed by others. Security for Participatory Improvements shall remain in place indefinitely until called upon or released by City. Monumentation security shall guarantee performance of or payment for the work and shall be utilized or released as specified in Chapter 4, Article 9 of the Subdivision Map Act. As elements of the work are completed, Subdivider may request a maximum of two partial releases of performance security. Partial releases shall be for not less than tan percent (10%) of the total performance security for the tract and shall not reduce total performance security below the amount necessary to complete the Improvements plus ten percent (10%) of the original amount. Partial releases of performance security will be evaluated and may be granted, in whole or in part, by the City Engineer. Requests for partial releases, setting forth in detail the amount of work completed and the value thereof, shall be made in writing to the City Engineer. Labor & materials security shall remain in place until 90 days after all required tract improvements are complete and accepted by the City Council. improvement Description Performance Labor & Materials Street w/Median (Monroe Street) $ 192,570 $ 192,570 Street (Avenue 58) $ 188,600 $ 188,600 Sewer improvements (Monroe) $ 126,870 $ 126,870 Water Improvements $ 213,400 $ 213,400 Storm Drain $ 8,910 $ 8,910 V Wide Meandering Sidewalk $ 61,630 $ 61,630 Landscaping (Parkway) $ 394,170 $ 394,170 Landscaping (Median) $ 53,650 $ 53,650 Traffic Signal at Entrance $ 120,000 $ 120,000 Totals $ 1,359,800 $ 1.359,800 Standard 10% Contingency $ 135,980 $ $ 135,980 1,495,780 Total Construction Cost $ 1,495,780 Professional Fees, Design 10% $ 149,580 $ 149,580 Professional Fees, Const 10% $ 149,580 $ 149,580 No Plans Contingency 25% $ 373,950 $ 373,950 Bond Amount $ 2,168,890 $ 2,168,890 r:W,gea us+ropn.K dv QV160MWtRVO*AWO-K"S'""w roWewfu~PW=Sm 3Qo9r0MrrE_S1A.mo 7a7 a CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California /� as. countyof �n l�/Y�Grnlr'/1� On l or o ber 2,0MY before me, personally appeared Rrr�.d M0-dd ■ d 'S personally (mown to me ❑ proved to me on the basis of satisfactory evidence to be the personL whose namell "dare subscribed to the within instrument and acknowledged to me that he/aheflhey executed the same in hfarhedtheir authorized capac ies , and that by hiaThedthelr signaturejs) on the instrument the persons], or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand a" aaueryne¢ OPTIONAL Thom an k bowbon bebw is not ra%*W bylaw. It meypmve vaWe6la to pemaw reyap on me daamnnr andCMWPMV" hauAd" remwar and naXedWaa tof dde form to anodnr doaxnem. Description of Attached Document Title or Type of Document Document Date: Number of Pages: Signers) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: ❑ Individual Tap of axunb here ❑ Corporate Officer —Title(s): ❑ Partner — O Limited O General ❑ Attomey-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: br»u wmn+Naerr�•wwp.eowlw..P.o. ern z102•Chtlwue,. a a,ersaaz•....,,mwnaw.wc vm ao. erm nw,ex: e�,m.,. ,+uae,oeee. » 165 ATTACHMENT 3 ASSIGNMENT AND ASSUMPTION AGREEMENT -Mk o AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO.30092 OFFSITE IMPROVEMENTS This ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT ("Assignment & Amendment") is made and entered into as of the _ day of , 20_, by and among the CITY OF LA QUINTA, a municipal corporation of the State of California ("City"), K. Hovnanian Communities, Inc., a Califomia Corporation, formerly known as K. Hovnanian Forecast Homes Southern, Inc., a Califomia Corporation, formerly known as K. Hovnanian Forecast Homes, Inc., a Califomia Corporation ("Assignor"), and Cado La Quinta, LLC, a Califomia limited liability company ("Assignee"). RECITALS -A. City and Assignor entered into that certain Subdivision Improvement Agreement, dated February 3, 2005 ("SIA"), pursuant to which Assignor, as the "Subdivider" defined in the SIA, agreed to plan for, install, and construct certain public and/or private improvements on Tract No. 30092 ("Tract"), as more fully described in Exhibit "A" of the SIA ("Improvements"). B. K. Hovnanian at Piazza Serena, LLC, as successor to Assignor, sold its interest in the Tract to Assignee. In conjunction with such transfer, Assignor desires to assign the SIA, and all of Assignor's rights and obligations thereunder, to Assignee and Assignee desire to assume Assignor's position with respect to the SIA and of Assignor's rights and obligations under the SIA subject to the terms of this Assignment & Amendment. C. In connection with the foregoing described assignment and assumption, the City and Assignee have agreed to certain modifications to the SIA as set forth herein to be effective upon full execution of this Assignment & Amendment by all the parties hereto. NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: t. Assignment and Assumption. Assignor hereby transfers and assigns to Assignee all of the Assignor's rights, title, and interest in and to, and obligations under, the SIA, and Assignee hereby assumes all rights, title, and interest in and to, and obligations under, the SIA. City hereby consents to the foregoing assignment and assumption. F220 l b "7 2. Replacement of Improvement Security. Pursuant to the SIA, Assignor has furnished the City security for the Improvements in the form of: (a) Faithful Performance Bond in the amount of $534,992 for the following improvements: OFFSITE IMPROVEMENTS Performance Security Improvement Description Original Amount 1" Partial Reduction (Percent) V Partial Reduced Amount Street with Median (Monroe Street) $192,570 90% $19,257 Street Improvements (Ave 58) $188,600 90% $18,860 Sewer Improvements (Monroe Street) $126,870 90% $12,687 Water Improvements $213,400 90% $21,340 Storm Drain $8,910 90% $891 8 FT Wide Meandering Sidewalk $61,630 90% $6,163 Landscaping (Parkwa) $394,170 90% $39,417 Landscaping (Median) $53,650 0% $53,650 Traffic Signal at Entrance $120,000 0% $120,000 Standard 10% Contingency $135,980 70% $40,794 Professional Fees, Design 10% $149,580 70% $44,874 Professional Fees, Construction 10% $149,580 70% $44,874 No Plans Contingency 25% $37,3,950 70% $112,185 TOTAL $2,168,890 $534,992 (b) Labor and Material Bond in the amount of $2,168,890 for the following improvements: F220 OFFSITE IMPROVEMENTS Labor & Material Secuirty Improvement Description Original Amount Street with Median (Monroe Street) $192,570 Street Improvements (Ave 58) $188,600 Sewer Improvements (Monroe Street) $126,870 Water Improvements $213,400 Storm Drain $8,910 8 FT Wide Meandering Sidewalk $61,630 Landscaping (Parkway) $394,170 Landscaping (Median) $53,650 Traffic Signal at Entrance $120,000 Standard 10% Contingency $135,980 Professional Fees, Design 10% $149,580 Professional Fees, Construction 10% $149,580 No Plans Contingency 25% $373,950 TOTALI $2,168,890 -2- 167 (c) Other (Specify type and amount): For purposes of this Assignment & Assumption, such security in the aggregate shall be hereinafter referred to as "Improvement Security." Assignee hereby warrants that within five (5) days of this executed Assignment and Amendment, it shall replace Assignor's Improvement Security with security of its own in an amount equal to the Improvement Security, unless the City otherwise determines at its discretion and in writing that such security can be issued at a lesser amount. Assignee's security shall be in full compliance with the terms and conditions stated in the SIA for such security. The City agrees that upon receipt of evidence that Assignee has obtained such new security in a form satisfactory to the City, the City shall release Assignor's Improvement Security. 3. Solvency. As a material inducement to the City to enter into the Assignment & Assumption, Assignee hereby represents and warrants to City, and City hereby relies on Assignee's representation and warranty, that Assignee is solvent and has the financial capability of fulfilling each and every obligation and duty it takes on by way of the Assignment & Assumption.. -t. Incorporation of SIA Provisions. The SIA, and each provision therein, unless otherwise modified in writing, is incorporated in this Assignment & Amendment in its entirety and Assignee agrees and warrants that it assumes and is bound by each obligation found in the SIA in the same manner as Assignor prior to this assignment. F220 -3- •. 168 IN WITNESS WHEREOF, the parties hereto have executed this Assignment & Amendment on _ day of , 20_ CITY: City of La Quinta 78496 Calle Tampico La Quinta, CA 92253 (760) 777-7075 Thomas P. Genovese Date City Manager ATTEST: VERONICA J. MONTECINO, CMC, CITY CLERK City of La Quinta, California ASSIGNOR: K. Hovnanian Communities, Inc., a California Corporation, formerly known as K. Hovnanian Forecast Homes Southern, Inc., a California Corporation, formerly known as K. Hovnanian Forecast Homes, Inc., a California Corporation 1500 S. Haven Avenue, Suite 100 Ontario, CA 91761 6v%,q 11lQlort.e� S 19' �U Its: cPon F ens . Date Its: ASSIGNEE: Cado La Quints, LLC 1545 Faraday Avenue Carlsbad, CA 92008 Its: F22D -4- Date Date Date 169 IN WITNESS WHEREOF, the parties hereto have executed this Assignment & Amendment on _ day of 20_ CITY: City of La Quinta 78-495 Calls Tampico La Quinta, CA 92253 (760) 777-7075 Thomas P. Genovese City Manager ATTEST: VERONICA J. MONTECINO, CMC, CITY CLERK City of La Quinta, California Date ASSIGNOR: K Hovnanian Forecast Homes, Inc./ K. Hovnanian Communities, Inc. 1560 S. Haven Avenue, Suite 100 Ontario, CA 91761 Its: ASSIGNEE: Cado La Quinta, LLC 1545 Faraday Avenue Cads CA 92008 Its: Its: Date Date "See attached certificate, Q 1 i '1- ate Date F220 -4- M 170 /a-��`:Cs�/�t �n/� a� D ak� sr v�-► P Ti o,.� 0�'� � �+.c �.-� r CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San Diego On MAY 2 0 20tt before me, Walter E. Pueschel, a Notary Public personally appeared G �2 / � -P who proved to me on the basis of satisfactory evidence to be the person(o whose nameoY is/amsubscribed to the within instrument and acknowledged to me that he/shelthey�executed the same in his/hes"eir authorized capacity(ies) and that by7us/her4theirsignature/Oon the instrument the person(o , or the entity upon Qehalf of which the personol acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and seaL rag QWALTER E. PUESCHEL Commbslon # 1795968 IL Notary Public - California San Diego County l*CWM=Ju19.2012 Place Notary Seal Above r. 171 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 601 Ao rrlA r2i i n0 On a Zd 2,011 before me, C" 1-4 ee z/foy Nditrr !j PEA C . Dam 11 _,, �I rttmmeWQIMm Drees, personally appeared CN M2NW LeComttWsfoe • 1919o93 Nmy PuOtie • Cettomfa fiat ltlmana" Cotrmy Cpma. Oct 21 Y012 who proved to me on the basis of satisfactory evidence to be the person whose nameAxi�re subscribed to the within instrument and acknowledged to me that ha/sha4hWexekutad the same in his4wAlieir authorized capacty(fes), and that by his%erkheir signature on the Instrument the personf or the entity upon behalf of which the person] acted, executed the Instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and coo4& ) rise omen sent news " o " -- OanONA� Though the intormarron below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this lorm to another document Description of Attached Document Title or Type of Document: Date: Signer(s) Oth an Named Above: Capacity(ies) Claimed ne Number of Pages: Signer's Name: Signer's Name ❑ Individual ❑ Individual ❑ Corporate Officer —Tide(s): mnrate0 ❑ Partner —❑ Limited ❑ General Parin ❑ Attomey in Fact A y in ❑ Trustee 7740 rustee ❑ Guardian or Conservator Guardian or ❑ Other: Other: Signer Is fjoeF—Title(s): _ Limited ❑ General Signer Is Representing: -fe 172 ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO. 30092 ON -SITE IMPROVEMENTS This ASSIGNMENT AND ASSUMPTION AGREEMENT AND AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT ("Assignment & Amendment") is made and entered into as of the _ day of , 20_, by and among the CITY OF LA QUINTA, a municipal corporation of the State of California ("City"), K. Hovnanian Communities, Inc., a California Corporation, formerly known as K. Hovnanian Forecast Homes Southern, Inc., a California Corporation, .formerly known as K. Hovnanian Forecast Homes, Inc., a California Corporation ("Assignor"), and Cado La Quinta, LLC, a California limited liability company ("Assignee"). RECITALS A. City and Assignor entered into that certain Subdivision Improvement Agreement, dated February 3, 2005 ("SIA"),: pursuant to which Assignor, as the "Subdivider" defined in the SIA, agreed to plan for, install, and construct certain public and/or. private improvements on Tract No. 30092 ("Tract"), as more fully described in Exhibit "A" of the SIA ("Improvements"). B. K. Hovnanian at Piazza Serena, LLC, as successor to Assignor, sold its interest in the Tract to Assignee. In conjunction with such transfer, Assignor desires to assign the SIA, and all of Assignor's rights and obligations thereunder, to Assignee and Assignee desire to assume Assignor's position with respect to the SIA and of Assignor's rights and obligations under the SIA subject to the terms of this Assignment & Amendment. C. In connection with the foregoing described assignment and assumption, the City and Assignee have agreed to certain modifications to the SIA as set forth herein to be effective upon full execution of this Assignment & Amendment by all the parties hereto. NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment and Assumption. Assignor hereby transfers and assigns to Assignee all of the Assignor's rights, title, and interest in and to, and obligations under, the SIA, and Assignee hereby assumes all rights, title, and interest in and to, and obligations under, the SIA. City hereby consents to the foregoing assignment and assumption. F220 171 2. Replacement of Imorovement Security Pursuant to the SIA, Assignor has furnished the City security for the Improvements in the form of: (a) Faithful Performance Bond in the amount of $721,621 for the following improvements: ON -SITE IMPROVEMENTS Performance Security Improvement Description [Drainage Original Amount 1" Partial Reduction (Percent) 14 Partial Reduced Amount ading $153,538 90% $15,354 $59,600 0% $59,600 eet Im rovments $683,633 70% $205,090 Domestic Water $546,896 90% $54,690 Sanitary Sewer $225,130 90% $22,513 Dry Utilities $819,000 90% 081,900 Perimeter Walls $328,050 90% $32,805 Monumentation $21,280 0% $21,280 Standard 10% Contingency $283,700 80% $56,740 Professional Fees, Design 10% $312,100 90% $31,210 Professional Fees, Construction 10% $312,100 80% $62,420 No Plans Contingency 25% $780,200 90% $78,020 TOTAL M525,227 $721,621 (b) Other (Specify type and amount): 1. Faithful Performance Bond for Fugitive Dust Control = $57 750 2 Cash Deposit for Fugitive Dust Control = $19 250 For purposes of this Assignment & Assumption, such security in the aggregate shall be hereinafter referred to as "Improvement Security." Assignee hereby warrants that within five (5) days of this executed Assignment and Amendment, it shall replace Assignor's Improvement Security with security of its own in an amount equal to the Improvement Security, unless the City otherwise determines at its discretion and in writing that such security can be issued at a lesser amount. Assignee's security shall be in full compliance with the terms and conditions stated in the SIA for such security. The City agrees that upon receipt of evidence that Assignee has obtained such new security in a form satisfactory to the City, the City shall release Assignor's Improvement Security. 3. Solvency. As a material inducement to the City to enter into the Assignment & Assumption, Assignee hereby represents and warrants to City, and City hereby relies on Assignee's representation and warranty, that Assignee is solvent and has the financial capability of fulfilling each and every obligation and duty it takes on by way of -the Assignment & Assumption. F220 -2- .» 174 4. Incorporation of SIA Provisions. The SIA, and each provision therein, unless otherwise modified in writing, is incorporated in this Assignment & Amendment in its entirety and Assignee agrees and warrants.that it assumes and is bound by each obligation found in the SIA in the same manner as Assignor prior to this assignment. F220 -3- 175 IN WITNESS WHEREOF, the parties hereto have executed this Assignment & Amendment on _ day of , 20_ CITY: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 (760)777-7075 Thomas P. Genovese Date City Manager ATTEST: VERONICA J. MONTECINO, CIVIC, CITY CLERK City of La Quinta, California ASSIGNOR: K. Hovnanian Communities, Inc., a California Corporation, formerly known as K. Hovnanian Forecast Homes Southern, Inc., a California Corporation, formerly known as K. Hovnanian Forecast Homes, Inc., a California Corporation 1500 S. Haven Avenue, Suite 100 Ontario, CA 61 Ska rrt zo11 Its: ate Its: ASSIGNEE: Cado La Quinta, LLC 1545 Faraday Avenue Carlsbad, CA 92008 Its: F220 -4- Date Date Date IN WITNESS WHEREOF, the parties hereto have executed this Assignment & Amendment on _ day of , 20 CITY: City of La Quinta 78495 Calle Tampico La Quinta, CA 92253 (760)777-7076 Thomas P. Genovese City Manager ATTEST: VERONICA J. MONTECINO, CMC, CITY CLERK City of La Quinta, California . Date ASSIGNOR: K. Hovnanian Forecast Homes, Inc./ K. Hovnanian Communities, Inc. 1500 S. Haven Avenue, Suite 100 Ontario, CA 91761 Its: Its: ASSIGNEE: Cado La Quinta, LLC 1545 Faraday Avenue Carisbaq CA 92008 Its: o In F220 -4- Date Date "See attached certificate" S Xo (( Date Date ru 177 ma g=,A Fir CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San Diego On MAY 2 0 20" before me, Walter E. Pueschel, a Notary Public personally appeared G EiC .P who proved to me on the basis of satisfactory evidence to be the persona) whose name(O islalae-subscribed to the within instrument and acknowledged to me that he%behhey executed the same in hislhewAheir authorized eapacity(ies) and that by b.Ldherftheir signature(o) on the Mtrument the person($) , or the entity upon behalf of which the person(se) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and seal. Signature: -—.�C,�/l .� 9igaature og,nbW7 Public WAl1ER E. PUE8CHEi Cammtuton B 1795983 Notary Public - Callfonga San Dlego County Comm. hi9.2012 Place Notary Seal Above CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT �SL State of California County of `-2 N 64e rr4 rd I rTU On I1M1. ?d' Low before me, ( AEA 7.ti nk _ /�Jdi �+r tf BY6 c- -ci .� .larnrame personally appeared CATIIII ZHOU commission N 18191061 Notary Public • California Sal Balarmno County Comm. a1Oct 21,2012+ Piece NotW Seel AEow who proved to me on the basis of satisfactory evidence to be the personWwhose nan-4s sii am subscribed to the within instrument and acknowledged to me that he/sdeAhey executed the same in hisflerAheir authorized capacityffes), and that by hiaRrefteir signature(, on the instrument the pe on(p)or the entity upon behalf of which the person acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true anat WITNEal. Signatu Nobry Putlb OPTIONAL Though the Informenon below Is not required by law, It may prove veluade to persons retying on the document and could prevent fraudulent removal and reattachment of INS farm to another &&noon Description of Attach Document &rrrok8 4 4 AssurnlWen igr,uankur}• t n9rrd .rt �o TiOe or Type of Document r Wiisvl--Z"pjEycrkar+ r vnl- (Tr_ 3o04S on-st t. —Xivrm Other Than Named Above: Claimed by Signer(s) Signers Name: ❑ Individual ❑ Corporate Officer —Tdle(s): _ ❑ Partner — ❑ Umited ❑ General ❑ Attorney in Fad ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name:_ ❑ Individual ❑ Corporate Officer — ❑ Partner — ❑ Llmit ❑ Attorney In F� General ❑ Guej-t%v or Conservator Signer Is Representing: 91919QC9E•www.NeticeelNeleryn9 9eroe699r COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Adoption of a Resolution to Extend the Time for Completion of the On -Site Improvements for Tract Map No. 32070, Codorniz, RJT Homes, LLC RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: If II 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 June 7, 2012 for Tract Map No. 32070, Codorniz, RJT Homes, LLC. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: I0GTiT:1A BACKGROUND AND OVERVIEW: Codorniz (Tract Map No. 32070) is located on the southeast corner of Avenue 52 and Jefferson Street (Attachment 1). On November 3, 2005, the City and RJT Homes, LLC entered into an SIA for Codorniz. 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 the standards or sequencing of the improvements in response to changes in standards or conditions affecting or affected by the improvements. " On April 17, 2007, the City Council adopted a resolution granting a time extension for the completion of the on -site improvements to December 31, 2007. On April 1, 2008, the City Council adopted a resolution granting a second time extension for the completion of the on -site improvements to December 31, 2008. On January 20, 2009, the City Council adopted a resolution granting a third time extension for the completion of the on -site improvements to December 31, 2009. In a letter dated April 14, 2011 (Attachment 2), the developer requested a time extension to complete the remainder of the on -site improvements which includes the final lift of paving on various streets. Staff has prepared the attached resolution which provides for approval of the fourth time extension of the SIA to June 7, 2012. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Adopt a Resolution of the City Council to extend the time for completion of the on -site improvements as specified in the approved SIA to June 7, 2012 for Tract Map No. 32070, Codorniz, RJT Homes, LLC; or 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 SIA to June 7, 2012 for Tract Map No. 32070, Codorniz, RJT Homes, LLC; or 3: Provide staff with alternative direction. Respectfully submitted, othy JJ nasP.EPublicWire or/City Engineer. . 181 Approved for submission by: Thomas P. Genovese, City Manager Attachments: 1. Vicinity Map 2. Letter from RJT Homes dated April 14, 2011 182 RESOLUTION NO. 2011- 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 TO JUNE 7, 2012 FOR TRACT MAP NO. 32070, CODORNIZ WHEREAS, the City Council approved the Subdivision Improvement Agreement (SIA) for Tract Map No. 32070, Codorniz, on November 3, 2005; 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 December 31, 2009, 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 the on -site improvements as required by the approved SIA is extended to June 7, 2012. Section 2. The time extension for completing the improvements shall expire when City offices close for regular business on June 7, 2012. If the Subdivider has not completed the improvements, the City, in its sole discretion and when 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. Section 4. All other terms, responsibilities and conditions as listed in the approved SIA shall remain in full force and effect. 183 Resolution No. 2011- Tract Map No. 32070, Codorniz Adopted: June 7, 2011 Page 2 PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta City Council held on this 7th day of June 2011, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: DON ADOLPH, Mayor City of La Quinta, California 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 I TM 32070 - CODORNIZ F :INITY MA NOT TO SCALE ATTACHMENT 1 185 April 14, 2011 Timothy R. Jonasson; P.E. 78-495 Calls Tampico La Quinta, CA 92253 RE: Tract 32070 Mr. Jonasson, RJT Homes-Codorniz, LLC Li 0 M e S RECCNfD APR i poll 0eVe!opment3en. es RJT respectfully requests a time extension of one year for `the On -Site Subdivision Improvement Agreement. The remaining improvements are expected to be complete by early 2012 Thank you for ontinuing patience on this matter. Chad Meyer Project Manager 186 P.O. Box 810, La Quinta, CA 92247 (760) 564-6555 FAX (760) 564-6505 r COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Acceptance of Grant of Easement and Agreement for Roadway Purposes at Dune Palms Road and "A" Street with Desert Sands Unified School District RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: _ CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Accept to grant of easement and agreement (Attachment 1) for roadway purposes at Dune Palms Road and "A" Street with Desert Sands Unified School District. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The City of La Quinta requires a perpetual and irrevocable public easement in, on, under and across a portion of the property described in Exhibit A and depicted in Exhibit B of the Grant of Easement and Agreement (Attachment 1) for right-of-way. Desert Sands Unified School District (DSUSD) developed this property (Attachment 2) in 1996 to construct the Education Services Center at the northeast corner of the intersection of Dune Palms Road and Avenue 48 (Attachment 3). The City desires to realign the bus facility entrance at the northerly end of the property for future access to the proposed Coral Mountain Apartments project to the north. Attachment 3 is the right-of-way dedication exhibit. The southerly light gray portion on the exhibit is the right-of-way dedication from DSUSD. 107 DSUSD's Board of Education approved adoption of Resolution No. 25/2010-2011, Grant of Easement to the City of La Quinta at the District Education Center on February 1, 2011. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Accept grant of easement and agreement (Attachment 1) for roadway purposes at Dune Palms Road and "A" Street with Desert Sands Unified School District; or 2. Do not accept grant of easement and agreement (Attachment 1) for roadway purposes at Dune Palms Road and "A" Street with Desert Sands Unified School District; or 3. Provide staff with alternative direction. Respectfully submitted, imothy R. J asso, P.E. Public Works irector/City Engineer Approved for submission by: homas P. Genovese, City Manager Attachments: 1 . Grant of Easement and Agreement 2. Vicinity Map 3. Right-of-way Dedication Exhibit ATTACHMENT RECORDING REQUESTED BY AND RETURN TO: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attn: City Clerk APN: 600-020-040 (Space Above For Recorder's Use) Exempt recording fee pursuant to Govt. Code a 6103. GRANT OF EASEMENT AND AGREEMENT THIS GRANT OF EASEMENT AND AGREEMENT (hereinafter referred to as the "Agreement") is made this day of , 20_, by Desert Sands Unified School District, a California school district and Desert Sands Unified School District Building Corporation, a (hereinafter referred to as the "Grantor"). RECITALS A. Grantor is the legal owner of a fee interest in certain real property located in the County of Riverside, State of California, commonly known as 47-950 Dune Palms Road, La Quinta, California, which property is identified by Riverside County Assessor Parcel Number 600-020-040 and more particularly described in Exhibit C attached hereto and incorporated herein by reference (hereinafter referred to as the "Property"). B. Grantor desires to grant to the City of La Quinta, a California municipal corporation and charter city (the "City"), a perpetual and irrevocable non-exclusive public easement in, on, under and across a portion of the Property described in Exhibit A and depicted in Exhibit B (both of which are incorporated herein by this reference) for right-of-way, public street, utility purposes and ancillary uses, AGREEMENT NOW, THEREFORE, Grantor and City agree as follows: 1. GRANT,• DESCRIPTION OF EASEMENT AREA. Grantor grants to the City a non-exclusive public easement for the purposes listed below on that portion of the Property described on Exhibit and depicted in Exhibit B (the "Easement Area"). 2. PURPOSE. The easement granted herein is for the purpose of doing all things necessary for the operation, maintenance, repair and replacement, as necessary, of improvements and for a non-exclusive perpetual and irrevocable easement in, on, under and across the Easement Area for right-of-way, public street, utility purposes and ancillary uses. - +156,015n10-0002 189 U n 542.7 s±eui.o2amnsm,a, w..0 J 3. DECLARATION OF RESTRICTIONS. Grantor shall retain all normal rights and incidents of ownership of the underlying fee interest in the Property. Grantor shall not be bound to undertake any supervision or maintenance of the Easement Area to provide for the public purposes hereunder with the exception that Grantor shall be responsible for irrigation and maintenance of landscaping which is contiguous to and connected to Grantor's existing landscaping and irrigation system. City, at no expense to Grantor, shall be responsible for all other maintenance and repair of the Easement Area. Upon mutual agreement of the parties hereto, Grantor shall relocate any utilities or other encumbrances located within the Easement Area. Grantor shall be responsible for any hazardous materials or contaminants located in the Easement Area prior to the date of this Agreement. 4. DURATION; SUCCESSORS AND ASSIGNS; RUNS WITH THE LAND. This Agreement shall be binding upon the Grantor and City and their heirs, assigns or successors in interest to the Property described above in perpetuity and shall not expire as long as City continues to use the Easement Area for the purposes stated herein. The terms, conditions and restrictions contained in this Agreement shall run with the land and be binding on the heirs, assigns and successors of the Grantor and City in the manner provided for herein. 5. TAXES AND ASSESSMENTS. This Agreement, easement and restrictions shall be deemed to constitute a servitude upon and burden to the Property within the meaning of Section 3712(d) of the California Revenue and Taxation Code, or successor statute, which survives a sale of tax -deeded property. 6. COUNTERPARTS. This Agreement may be executed in one or more counterparts, which, taken together, shall constitute one complete and enforceable agreement. 7. APPROVALS. City, at no expense to Grantor, shall obtain from all agencies or authorities with jurisdiction any and all required approvals, permits, inspections, or similar items which may be required for any and all activities City conducts on the Easement Area. 8. _,--. COMPLIANCEWITH LAWS. City, in performing -any work-in the use, upkeep, and maintenance of the Easement Area, shall conform to all pertinent laws, ordinances, rules and regulations. 9. LIABILITY. City shall be liable for any damages arising from City's use of the Easement Area or as otherwise provided under California law. 10. HAZARDOUS MATERIALS. City shall not cause or permit any Hazardous Materials to be generated, brought onto, used, stored, or disposed of in or about the Easement Area and any improvements by City. or its agents, employees, contractors, subcontractors, or invitees. City shall comply with all Environmental Laws. As used herein, the term "Hazardous Materials" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government. The term "Hazardous Materials" includes, without limitation, asbestos, PCBs, and any material or substance which is (i) defined as hazardous or extremely hazardous pursuant to Title 22 of the California Code of Regulations, Division 4.5, Chapter 11, Article 4, section 66261.30 et seq. (ii) defined as a "hazardous waste" pursuant to section 14 of the federal 2156/015610-0002 _2_ 1 9 824642024108/II&RAGAFb -• w 9 Resource Conservation and Recovery Act, 42 U.S.C. 6901 et. seq. (42 U.S.C. 6903), or (iii) defined as a "hazardous substance" pursuant to section 10 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et. seq. (42 U.S.C. 9601). As used herein, the term "Hazardous Materials Law" shall mean any statute, law, ordinance, or regulation of any governmental body or agency (including the U.S. Environmental Protection Agency, the California Water Quality Control Board, the Department of Toxic Substances Control, and the California Department of Health Services) which regulates the use, storage, release or disposal of any Hazardous Material. 11. TRANSFER: ASSIGNMENT. City shall not sell, sublet, convey, assign, or transfer any interest in the Easement Area to any other entity or person, without the written consent of the Grantor. Any presumptive transfer violating this provision is void. City shall not assign its rights, duties, or privileges under this Agreement, and City shall not attempt to confer any of its rights, duties, or privileges under this Agreement on any third party . 12. INDEMNIFICATION. To the fullest extent permitted by California law, City shall indemnify, defend and save harmless the Grantor, its trustees, officers, agents, employees, representatives, contractors, and invitees, .and each of them, from and against any and all claims, demands, causes of action, damages, costs, expenses, losses, or liabilities, in law or in equity, of every kind and nature whatsoever, for, but not limited to, injury to or death of any contractor or subcontractor of City, or any officers, agents or employees of the City, or of any contractor, subcontractor, or any other person, and damages to or destruction of property of Grantor or any other person, arising out of or in any manner directly or indirectly connected with City's use, maintenance, work or repair in or around the Easement Area, except to the extent caused by the sole negligence or willful misconduct of the Grantor. 13. RESERVATION OF RIGHTS. Grantor reserves the right to use the Easement Area for purposes that will not interfere with City's full enjoyment of the rights hereby granted, provided that Grantor shall not erect or construct any building or other structure within said Easement Area or substantially add to the ground cover over the Easement Area or construct any fence that will interfere with the maintenance and operation of the Easement Area. 14. City shall protect and preserve the City's use of the Easement Area. City shall backfill all excavations and restore the ground to a condition equal to the condition existing prior to the excavation. Grantor shall have no responsibility for the protection, maintenance, damage to, or removal of the appurtenances or improvements, caused by or resulting from City's use of the Easement Area or work or operation thereon caused by the use of the Easement Area. It shall be the sole responsibility of City to provide and maintain adequate protection and surface markings for the Easement Area. Under no circumstance shall the Grantor have any liability to City or to any other person or entity, for consequential or special damages, including but not limited to, any damages based on loss of use, revenue, profits, or business opportunities arising from or in any way relating to, any damage or destruction of any portion of the Easement Area. 15. ABANDONMENT. In the event City shall cease to use the Easement Area for a period of one year, or in the event City abandons the Easement Area or fails to use the Easement 21561015610-0002 _3_ 1 9 924642.02 a0W8/11 a42l1 Oil 0 1 Area for the purpose for which this easement is granted, then all rights of City in and to the Easement Area shall thereupon cease and terminate and shall immediately revert to and vest in the Grantor or its successors. Upon any such termination of City's rights, City shall, upon request by the Grantor, and at City's sole cost and expense, abandon in place or remove any and all facilities related to the Easement Area and restore said Easement Area to its original condition. Upon the failure of City to do so, this work may be performed by the Grantor at City's expense, which expense City agrees to pay to the Grantor upon demand. City shall execute any quitclaim deeds required by the Grantor in this regard. Upon termination or abandonment, if City fails to reconvey its interest in the Easement Area to the District, the District Superintendent has power of attorney to act, after thirty (30) days written notice, as an agent for City for the limited purpose of executing a quitclaim deed(s) to reconvey the Easement Area from City back to the Grantor. City shall pay all expenses, fees, and costs incurred by Grantor to terminate the easement and/or reconvey the Easement Area. 16. CONFLICTS. The terms stated in this Agreement shall control over any contradictory terms in any other agreement. [Signatures Contained On Following Page] 21561015610-0002 - - _4_ 824642.62 0128/11M344" Executed this day of 20_, at La Quinta, California. "Grantor" DESERT SANDS UNIFIED SCHOOL DISTRICT By: �G>7 CDa ✓, t�= Its: A 4s f- ,SU -1 (9u.i 1 n c" DESERT SANDS UNIFIED SCHOOL DISTRICT BUILDING CORPORATION 2156MI5610-0002 SM42.02 e05/12/11*114 10 "City," CITY OF LA QUINTA, a California municipal corporation and charter city 0 Thomas P. Genovese City Manager Attest: Veronica J. Montecino, CMC, City Clerk APPROVED AS TO FORM RUTAN & TUCKER, LLP M. Katherine Jenson City Attorney 193 STATE OF CALIFORNIA ) ) ss. COUNTY OF kl (leK5�de- ) On � babreme, - ' z�/ a notary public, ersonally appeared ji/mil /a r 2 personally known to me (or proved to me on the basis of satisfactory evidencef 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. MAN M. MA K rA Commission f 1924669 May Pui4ie • camornia RMMWs County M co irea Mar 2 2018 STATE OF CALIFORNIA ) ss. COUNTY OF ) Signatur 6 / - 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. Signature 2156ro156104002 12"42.02 s05/12/I10WA9HB 194 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA.) COUNTY OF " �1t oem 1 C�,' e, ) On Q'` ao l before me, 1' JA EsaL Inci A*hwQ ,'. h1" ATE INSERT NAME, TITLE OF OFFICER — E.G.., "JANE DOE, NOTA Y PUBLIC personally appeared, who proved to me on the basis of satisfactory evidence to be the person(() whose name) is/aPa subscribed to the within instrument and acknowledged to me that 11eEshe/dw.)Lexecuted the same in his'her/their authorized capacity(iss), and that by his/her/their signaturco on the instrument the person), or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. W.:AESCARSEGAL OMM. 01863517 KWX OCAUFOMA ERSICECOUNTYEzp. SEPT. 29, 2013 ~� (SEAL) NOTARY 15 IC SIGNATURE OPTIONAL INFORMATION THIS OPTIONAL INFORMATION SECTION IS NOT REQUIRED BY LAW BUT MAYBE BENEFICIAL TO PERSONS RELYONG ONTHISNOTAMM DOCUMENT. TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT. NUMBER OF PAGES SIGNERS(S) OTHER THAN NAMED ABOVE. SIGNER'S NAME SIGNER'S NAME RIGHT THUMBPRINT I RIGHTTIWMBPRINT To onla supplies, pleIE contact McGlone Insurance Services, Inc. at (916) 484 0804. CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by a Grant of Easement and Agreement dated 20 , from , a , to the CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the California Constitution ("City"), is hereby accepted by the City by the signature of the undersigned agent on behalf of the City pursuant to the authority conferred upon him or her by Resolution No. , adopted by the City Council on , and that the City, as Grantee, by and through its said duly authorized agent, hereby consents to recordation thereof. CITY OF LA QUNITA, a California municipal corporation and charter city Bv: 20_ Thomas P. Genovese, City Manager City of La Quinta I HEREBY ATTEST to the authenticity of the. foregoing signature and to the adoption of said Resolution of his general authority to so act and certify that said authority has not been revoked by a subsequent Resolution or order of the City. DATED: Veronica J. Montecino, CMC, City Clerk City of La Quinta, California 21561015610-0002 _.7_ 824642MR01128/11aRA040 _ ATTACHMENT 2 l I U "A" STREET COSTCO DSUSD PROPERTY C VICINITY MAP NOT TO SCALE �/�� a d§ »\ ATTACHMENT ■ " 2 .,§ \§ . � ■B «�- /�/z»}\§. ! \ §§\ E \ 198 / / f i AGENDA CATEGORY: COUNCIL/RDA MEETING DATE: June 7, 2011 BUSINESS SESSION: _ ITEM TITLE: Approval to Excuse Commissioner Mark Weber's Absences from the June 14, and June 28, CONSENT CALENDAR: 3 2011, Planning Commission Meetings STUDY SESSION: PUBLIC HEARING: RECOMMENDATION: Approve a request from Commissioner Mark Weber to be excused from attending the June 14, and June 28, 2011, Planning Commission meetings. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: 101ro -} BACKGROUND AND OVERVIEW: The La Quinta Municipal Code, Section 2.06.020(B) includes the statement: A board or commission member may request advance permission from the city council to be absent at one or more regular meetings due to extenuating circumstances. If such permission or excuse is granted by the City Council, the absence shall not be counted toward the limitations on absences. Staff has discussed this section with all Commissions and, in response, Commissioner Weber has requested of the City Council to be excused from the June 14, and June 28, 2011, Planning Commission meetings. The request was made prior to the meeting as noted on Attachment 1. 199 FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve Commissioner Weber's request to be excused from the June 14, and June 28, 2011, Planning Commission meetings; or 2. Deny Commissioner Weber's request; or 3. Provide staff with alternative direction. bmitted, Planning Director Approved for submission by: Thomas P. Genovese, City Manager Attachment: 1. Request from Commissioner Weber 200 ATTACHMENT #1 Carolyn Walker -----Original Message ----- From: markdweber@live.com [mailto:markdweber@live.comj Sent: Thursday, May 26, 20119:37 PM To: Carolyn Walker Subject: June Planning Commission Meetings Carolyn, I will be out of town the end of June, from the 13th through the 30th; and unable to attend the Planning Commission meetings scheduled for June 14th and June 28th. Could you please request my absences be excused by the City Council? Thanks, Mark Weber Sent on the Sprint® Now Network from my BlackBerry® '1" 201 4W COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Approval to Excuse Commissioner Maria Puente's Absences from the June 16, and July 21, 2011, Historic Preservation Commission Meetings RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: I STUDY SESSION: PUBLIC HEARING: Approve a request from Commissioner Maria Puente to be excused from attending the June 16, and July 21, 2011, Historic Preservation Commission meetings. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The La Quinta Municipal Code, Section 2.06.020(B) includes the statement: A board or commission member may request advance permission from the city council to be absent at one or more regular meetings due to extenuating circumstances. If such permission or excuse is granted by the City Council, the absence shall not be counted toward the limitations on absences. Staff has discussed this section with all Commissions and, in response, Commissioner Puente has requested of the City Council to be excused from the June 16, and July 21, 2011, Historic Preservation Commission meetings. The request was made prior to the meeting as noted on Attachment 1. .» 202 FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve Commissioner Puente's request to be excused from the June 16, and July 21, 2011, Historic Preservation Commission meetings; or 2. Deny Commissioner Puente's request; or 3. Provide staff with alternative direction. Respectfully sukVnitted, Director Approved for submission by: Thomas P. Genovese, City Manager Attachment: 1. Request from Commissioner Puente 203 ATTACHMENT 1 May 30, 2011 Maria L. Puente 78-620 Forbes Circle La Quinta, CA. 92253 (760)345-4411 mlouente@aol.com Mayor of City of La Quinta La Quinta City Hall 78-495 Calle Tampico La Quinta, CA. 92253 Dear Honorable Mayor and Council Members: The purpose of this letter is to formally request to be excused from the upcoming La Quinta Historical Preservation Commission monthly meeting, to be held on Thursday, June 16, 2011. I will be out of the country from June 13 to August 17. I will be present, however, for the meeting on August 18, 2011. I appreciate your consideration in this matter Very respectfully, Maria L. Puente, Commissioner La Quinta Historic Preservation Commission 204 COUNCIL/RDA MEETING DATE June 7, 2011 ITEM TITLE: Approval of a Standard Domestic Water System and Sanitation System Installation Agreement with the Coachella Valley Water District for the Coral Mountain Apartments RECOMMENDAT AGENDA CATEGORY: BUSINESS SESSION: _ CONSENT CALENDAR: 15 STUDY SESSION: PUBLIC HEARING: Approve a Standard Domestic Water System and Sanitation System Installation Agreement (Attachment 1) with the Coachella Valley Water District (CVWD) for the Coral Mountain Apartments, and authorize the City Manager to execute the agreement and easement documents subject to minor revisions by the City Attorney. FISCAL IMPLICATIONS: If the proposed Agreement is approved, the domestic water and sanitation system improvements that will ultimately serve Coral Mountain Apartments will be constructed in conjunction with the New Traffic Signal and Street Improvements at Dune Palms Road and "A" Street, Project No. 2009-10. This would avoid having to excavate the roadways after they are completed. The following is the funding and funding sources for Project No. 2009-10: Transportation DIF: Developer Funding: General Fund: RDA PA 2 Low Mod: RDA Project Area No. 2 Total Funding $215,000 $215,000 $150,910 $349,925 $500,835 $1,431,670 2�-'5 The following is the anticipated budget for Project No. 2009-10: Construction: Design: Inspection/Testing/Survey: Professional: Administration: Contingency: Total Estimated Expenditures $1,030,170 $140, 000 $ 90, 000 $ 50, 000 $21,500 $100,000 $1,431,670 Adequate funding is available to support staff's recommendation to incorporate the water and sewer installation into Project No. 2009-10. CHARTER CITY IMPLICATIONS: Project No. 2009-10 is partially funded with RDA Project Area No. 2 Funds. The project will be bid as a prevailing wage improvement. BACKGROUND AND OVERVIEW: Project No. 2009-10 is located on Dune Palms Road at the entry to former Sam's Club development and the newly aligned "A" Street. The proposed improvements include the installation of a new traffic signal, modifications to the Sam's Club entry driveway, and a new street ("A" Street) to the east. "A" Street is intended to be a new roadway that will provide access to the Coral Mountain affordable housing project and will continue past that development and ultimately connect Dune Palms Road with the Komar Center (Costco). Because the Coral Mountain development will not take access from Highway 1 1 1, a portion of "A" Street is a necessary element of that project. The proposed improvements along "A" Street include new domestic water and sanitation sewer systems, and new electrical service for the future use of the proposed Coral Mountain Apartments development. The water and sewer lines which are the subject of the proposed agreement with CVWD will be located. in the approximately 350 foot length of "A" Street between Dune Palms and the road stub out for the Coral Mountain housing project (Attachment 2). On April 15, 2008 the City Council adopted Resolution 2008-023 approving the Fiscal Year 2008-2009 through 2012-2013 Capital Improvement Program (CIP). The New Traffic Signal at Dune Palms Road and Retail Center (formerly the Sam's Club) is included within the adopted CIP and scheduled for funding during Fiscal Years 2008-2009. On April 21, 2009 the City Council adopted Resolution 2009-033 approving the Fiscal Year 2009-2010 through 2013-2014 Capital Improvement Program (CIP) and making certain findings pursuant to Health and Safety Code Section 33445(a). The 206 "A" Street Extension (Dune Palms Road easterly to Komar Center) is included within the adopted CIP and scheduled for funding during Fiscal Years 2009-2010. On July 21, 2009, the City Council authorized staff to distribute a Request for Proposal (RFP) to obtain professional engineering services to prepare the plans, specifications and engineer's estimate (PS&E) for the New Traffic Signal and Street Improvements at Dune Palms Road and "A" Street, Project No. 2009-10, and appointed a consultant selection committee. On September 15, 2009, the City Council approved a Professional Services Agreement (PSA), in the amount of $79,296, with VA Consulting, Inc. to prepare the PS&E for the New Traffic Signal and Street Improvements at Dune Palms Road and "A Street, Project No. 2009-10. The Standard Domestic Water System and Sanitation System Installation Agreement (Attachment 1) is required by CVWD for all water and sewer line installation projects. CVWD is requiring the execution of this agreement before the City can finalize the water and sewer components of Project 2009-10. The agreement outlines the procedures for plan approval, for construction, and ultimately for acceptance of the facilities by CVWD. The agreement requires the City to provide insurance coverage and indemnity in favor of CVWD. The City Council authorized staff to advertise the new traffic signal and street improvements (including the sewer and water lines) at Dune Palms Road and "A" Street on May 17, 2011 . Construction bids will be received by the City on June 9, 2011. Approval of the CVWD Standard Water System and Sanitation System Installation Agreement is the final step to obtain CVWD's approval of the water and sewer plans. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve a Standard Domestic Water System and Sanitation System Installation Agreement with the Coachella Valley Water District for the Coral Mountain Apartments, and authorize the City Manager to execute the agreement and easement documents subject to minor revisions by the City Attorney; or 2. Do not approve a Standard Domestic Water System and Sanitation System Installation Agreement and required easements for the Coral Mountain Apartments; or .� 207 3. Provide staff with alternative direction. Respectfully submitted, Timothy R. J lass P.E. Public Works Direc or/City Engineer Approved for submission by: Thomas P. Genovese, City Manager Attachments: 1. Standard Domestic Water System and Sanitation System Installation Agreement 2. Plan of proposed water and sewer improvements " 2�8 ATTACHMENT I No Recording Fee Required Per Government Code Section 27383 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: COACHELLA VALLEY WATER DISTRICT Post Office Box 1058 Coachella, California 92236 this he for Recorder's Use) APN: 600-020-040; 600-020-012-9; 600-020-039-4 STANDARD DOMESTIC WATER SYSTEM AND SANITATION SYSTEM INSTALLATION AGREEMENT THIS STANDARD DOMESTIC WATER SYSTEM AND SANITATION SYSTEM INSTALLATION AGREEMENT ("Agreement") is made on this day of June, 2011, by and between the COACHELLA VALLEY WATER DISTRICT, a public agency of the State of California ("District") and City of La Quinta, a California municipal corporation and charter city ("Developer"). RECITALS A. Developer is the owner of certain real property located in the County of Riverside, California legally described on Exhibit "A" and depicted on Exhibit "B" attached hereto and by this reference incorporated herein ("Developer Property"). B. Developer is developing Street "A" providing access to proposed City Redevelopment Agency affordable housing on the Developer Property ("Project") of approximately two hundred (200) units ("Units"). C. The Developer Property will require a domestic water system and sanitation system and domestic water and sanitation service to each of the Units. For purposes of this Agreement, the term "domestic water system" shall include, without limitation, pipelines and appurtenances thereto, including valves, service connections and fire hydrants, but excepting a water meter to each Unit. For purposes of this Agreement, the term "sanitation system" shall include, without limitation, pipelines and appurtenances thereto, including manholes and sewer (Rev. 6/10)•N 209 laterals. The terms "domestic water system" and "sanitation system" shall sometimes be referred to herein collectively as "Domestic Water and Sanitation Systems." D. Developer is desirous of having District provide domestic water and sanitation service to the Developer Property and is willing to transfer to District the Domestic Water and Sanitation Systems necessary therefor after the construction thereof and District is willing to accept such transfer and to provide domestic water and sanitation service to the Developer Property on the terms and conditions set forth herein. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: Developer General Responsibilities (a) Developer will comply with District's rules, regulations, ordinances and procedures regarding the design, installation and construction of the Domestic Water and Sanitation Systems and the provision of domestic water and sanitation service to the Developer Property, including, without limitation, "Regulations Governing Domestic Water Service", "Regulations Governing Sanitation Service" and "Development Design Manual" as the same may be amended from time to time (collectively, "Rules'). The Rules are incorporated herein by reference. (b) (i) Developer shall, at Developer's sole cost and expense, be responsible for compliance with the California Environmental Quality Act ("CEQA") and all other applicable state and federal environmental laws and all requirements of the Federal Endangered Species Act and the California Endangered Species Act arising out of or in connection with the design and construction of the Domestic Water and Sanitation Systems and for compliance with all conditions and mitigation measures which must be satisfied in connection with the same. Developer shall cause such public agency of the State of California as shall be acceptable to District to act as lead agency for the purposes of complying with CEQA, or District may elect, but shall have no obligation, to act as lead agency. As part of its obligation to fund the CEQA process, Developer shall prepare or cause to be prepared all instruments, documents, reports and other like or kind writings required to be prepared and/or filed by CEQA (ii) Developer shall, upon request by and at no cost to District, famish District with such information as Developer possesses or has available to it from any CV WD-lac (Rev. 6/10) •.% 21.0 consultants, engineers, contractors or other persons engaged by or under the control of Developer relating to the environmental assessment relative to the creation of the Domestic Water and Sanitation Systems covered by this Agreement. In this regard, nothing herein contained shall be construed or interpreted to require District to take or participate in any legal action for the purpose of securing approval for any improvement. (c) W Developer shall employ, at its sole expense, a qualified professional engineering firm ("Developer's Engineer") to plan, design and prepare detailed construction plans and specifications ("Plans") for the Domestic Water and Sanitation Systems in full and complete accordance with District's design criteria and standards, including, but not limited to, the District's "Development Design Manual", "Standard Specifications for the Construction of Domestic Water Systems" and "Standard Specifications for the Construction of Sanitary Sewer Systems." Developer's Engineer shall complete the design and Plans and the same shall be submitted to District as set forth below. All such planning and design work and Plans performed and prepared by Developer's Engineer shall be subject to review and written approval by District prior to presentation thereof to contractors for bidding purposes. District shall approve or disapprove the Plans within a reasonable amount of time after submittal thereof to District. In the event District disapproves the Plans, Developer shall modify the Plans in accordance with the reasons given for disapproval and shall resubmit the revised Plans to District for approval or disapproval. The foregoing procedure shall be continued until the Plans have been approved by the District. Developer hereby acknowledges and understands that District may approve or disapprove of Developer's planning and design work and/or Plans, in its sole and absolute discretion. Developer represents that the Plans will conform to all applicable federal, state and local governmental rules, ordinances and regulations and all applicable environmental protection laws. To Developer's knowledge, after due inquiry, the Plans are complete, accurate, workable and are in compliance with all governmental requirements with respect thereto. (ii) Developer and Developer's successors, assigns and successors -in - interest to the Developer Property shall be liable for the replacement of decorative concrete and other surface improvements, including, but not limited to, alternative paving methods which District may be required to remove in the future to gain access to the Domestic Water and Sanitation Systems. District shall not be responsible for seal coating, overlaying or otherwise resurfacing street improvements outside the immediate area of construction. Developer and Developer's successors shall be responsible for all costs having to do with the same. Developer Cvwo-1 ac (Rev. 6/10) » 211 shall include these conditions in the Covenants, Conditions, and Restrictions for the Developer Property. (iii) Prior to any service hereunder, Developer hereby consents and agrees to execute the District's standard form Water Production Metering Agreement (or such successor agreement) ("Metering Agreement") for any and all wells on the Developer Property producing more than twenty-five (25) acre feet of water in any calendar year. The Metering Agreement shall provide, in part, that (A) such wells must be equipped with a water measuring device ("Measuring Device") more particularly described therein; (B) on a monthly basis the Developer shall report well production directly or grant District employees, agents and representatives an irrevocable right to come onto the Developer Property to read and maintain the Measuring Device, and (C) Developer shall be required to pay a monthly replenishment assessment. (iv) Prior to any service hereunder, the Developer shall provide the District gate codes for access to the Developer Property through any electrically or electronically operated security gate system installed by Developer. If the Developer cannot provide the District with gate codes then the District shall have the right to install radio controls to operate said gate(s) at Developer's expense. Developer hereby grants to District an irrevocable easement for District in and over the Developer Property for the purpose of installation, reinstallation, repair, replacement, operation and maintenance of such radio controls. Developer shall pay District the sum of Four Thousand Five Hundred Dollars ($4,500.00) as the cost of said radio controls prior to acceptance of the Domestic Water and Sanitation Systems by District. District will operate, maintain, and replace said radio controls at District expense. 2. Developer Pre -Plan Check Requirements (a) Prior to submitting the Plans to the District for initial plan check, Developer shall do the following: (i) Concurrently with the execution of this Agreement by Developer, Developer shall deliver to District a current preliminary report ("PIR") dated within thirty (30) days of delivery thereof to District. The District shall notify Developer of any title exceptions within the PTR which must be subordinated to the lien of this Agreement. Notwithstanding the foregoing, any monetary liens or liens of any covenants, conditions and restrictions must be 4 cvwD-14c `R" 6/10'eto 212 subordinated to the lien of this Agreement. Developer shall have a period of thirty (30) days after the receipt of the written notice to cause the subordination of the items listed in the District's notice, as well as any monetary liens or liens of any covenants, conditions and restrictions. (ii) Pay the District's Hydraulic Modeling Deposit and provide the Developer Property acreage, number of proposed dwelling units by phase, description and square footage of any commercial buildings, clubhouses, community centers, etc., domestic and landscape irrigation water daily demands and fire flow requirements in the form of a letter from the Fire Marshall and sanitation (wastewater) flows. (iii) Pay the District's Plan Check Deposit and any amounts necessary to reimburse District for costs incurred in connection with review of the Plans. (iv) Furnish to District Exhibits "A" and `B" and notarized Installation Agreement. (v) Complete and deliver to District the Original Bill of Sale on a form supplied by the District. Worksheet. (vi) Complete and deliver the Supplemental Water Supply Charge (vii) Complete and deliver to District the District's Standard Form Development Category Declaration. (viii) Furnish to District written petitions for the annexation of the Developer Property to those Improvement Districts of District which are applicable to the public services to be provided. (ix) Complete and deliver to District the District's Standard Form Domestic. Water Plan Checklist. (x) Complete and deliver to District the District's Standard Form Sanitation Plan Checklist. (b) Prior to submitting Plans to the District for the second plan check, provide the following: CVWD-14c" 213 (Rev. 6/10) (i) Pursuant to Section 1(a), Developer, at its sole cost and expense, shall furnish to District recorded grant deeds and/or recorded easement document(s) and/or easements proposed to be dedicated in tract maps and/or public rights -of -way, if applicable, satisfactory to District (in its sole and absolute discretion) as to content, form, location and width, which assure District's unequivocal right to own, operate, maintain, replace, repair, enlarge, reconstruct, remove and improve the Domestic Water and Sanitation Systems. Developer shall ensure that all deeds of trust, mortgages and covenants, conditions and restrictions are reconveyed as to fee ownership and/or subordinated as to the easements. Developer shall also ensure that the grant deeds and easements comply with the requirements of the Rules. (ii) Engineer's estimate of construction costs. (iii) Landscape irrigation plans and specifications for common areas and typical residential lots ("Landscape Plans") for the [Developer Property) in full and complete accordance with the Rules. The design and Landscape Plans shall be submitted to District for review and written approval. District shall approve or disapprove the Landscape Plans within a reasonable amount of time after submittal thereof to District. In the event District disapproves the Landscape Plans, Developer shall modify the Landscape Plans in accordance with the reasons given for disapproval and shall resubmit the revised Landscape Plans to District for approval or disapproval. The foregoing procedure shall be continued until the Landscape Plans have been approved by the District. Developer hereby acknowledges and understands that District may approve or disapprove of Developer's Landscape Plans, in its sole and absolute discretion. Developer represents that the Landscape Plans will conform to all applicable federal, state and local governmental rules, ordinances and regulations and all applicable environmental protection laws. To Developer's knowledge, after due inquiry, the Landscape Plans are complete, accurate, workable and are in compliance with all governmental requirements with respect thereto. 3. Developer Plan Approval/Release Requirements Prior to the release/approval of the Plans by the District for the Domestic Water and Sanitation Systems, Developer shall furnish to District the following: (a) Deliver the approved Plans in electronic CAD format. Cvwn-Ix (R".6110) » 214 (b) Execute and deliver the District's Special Water System and Sanitation System Installation Agreement in such form and content as shall be acceptable to the District. 4. Developer Pre -Construction Requirements Following receipt of District's approval of the design and Plans for the Domestic Water and Sanitation Systems and prior to the construction thereof, Developer shall do the following: (a) Furnish to District, prior to the pre -construction meeting set forth in subsection (d), an irrevocable letter of credit ("LOC") or a certificate of deposit ("Cl)") from a bank or savings and loan located and doing business in the State of California and acceptable to District, naming District as sole beneficiary with the exclusive right of withdrawal according to the following, in the amount of Five Thousand Dollars ($5,000.00) or five percent (5%) of the amount of the construction costs of the Domestic Water and Sanitation Systems, whichever sum is greater, as security for the purpose of guaranteeing the completion of the construction of the Domestic Water and Sanitation Systems. Said security shall provide that District has the absolute right five (5) days after the mailing of a written notification to Developer by certified mail, at Developer's address herein, to draw all or a portion of the funds represented by the security as may be necessary to complete construction, including administrative and all other project costs or to secure compliance with this Agreement, including the construction of the Domestic Water and Sanitation Systems; each LOC or CD shall be issued or delivered on a case - by -case basis, for each contract based on the construction required as outlined herein. Said security, less draws, if any, will be returned to Developer on a case - by -case basis, upon the District declaring that the Domestic Water and Sanitation Systems is final and complete (including, but not limited to, the paving of road/streeUright-of-way above such facilities) in District's sole and absolute discretion. Developer hereby understands, acknowledges and agrees that the determination that the Domestic Water and Sanitation Systems is complete and final may come after District has accepted such facilities. (b) Famish to District, prior to the pre -construction meeting set forth in subsection (d), the District's Standard Form Materials Submittal and an electronic copy of the recorded tract map of the Project. 7 Cvwoa4C (Rev. 6/10) - 21.5 (c) Employ, with written concurrence of District, a qualified contractor or contractors (collectively, "Developer's Contractor") properly licensed by the State of California, to construct and complete the Domestic. Water and Sanitation Systems. (d) Arrange or cause Developer's Contractor to arrange for a preconstruction meeting with the District. At such meeting there shall be at least one (1) representative of District, Developer and Developer's Contractor. At such meeting, Developer shall be required to pay to District such deposit for inspection as shall be required by District. District shall deduct from said deposit all reasonable cost and expense of District, including, but not limited to, District's agents, employees or independent contractors. District shall handle such deposit consistent with the District's rules, regulations and procedures with respect to such deposits. (e) Obtain and maintain in full force and effect during the term of this Agreement, the insurance coverages listed on Exhibit "C" attached hereto and by this reference incorporated herein. Developer Construction Requirements Following satisfaction of the requirements set forth in Section 4, Developer shall construct the Domestic Water and Sanitation Systems in accordance with the following requirements: (a) Developer shall, at its own cost and expense, apply for and obtain all necessary consents, approvals, permits, authority, licenses or entitlements as shall be required for the construction and installation of the Domestic Water and Sanitation Systems, from all appropriate governmental authorities. (b) Once the construction and/or installation of the Domestic Water and Sanitation Systems has commenced, Developer shall diligently prosecute the same to completion at no cost or expense to District in conformance with the laws, rules and regulations of all governmental bodies and agencies, including those of the District. (c) Developer shall perform, or cause to be performed, all construction and installation of the Domestic Water and Sanitation Systems in good, workmanlike and commercially reasonable manner, with the standard of diligence and care normally employed by duly qualified persons in the performance of comparable work and in accordance with 8 CVND_14c' . 216 (Rev. 6/10) generally accepted practices appropriate to the activities undertaken and in compliance with the construction standards set forth herein. Developer shall employ at all times adequate staff or consultants with the requisite experience necessary to administer and coordinate all work related to the design, engineering, construction and installation of the Domestic Water and Sanitation Systems. (d) Developer shall cause the Developer's Contractor to comply with the applicable OSHA standards and requirements, including following OSHA safety standards and submitting construction and shoring plans as required. (e) District shall be under no obligation to protect the Domestic Water and Sanitation Systems to be constructed by or on behalf of Developer, or any material, tool, equipment and facilities until written acceptance thereof by District. Prior to the acceptance, Developer shall bear all risk of loss or damage thereto by whatever cause inflicted. Developer shall rebuild, repair, restore and replace or cause to be rebuilt, repaired, restored or replaced, and make good all injuries or damages to any portion of the Domestic Water and Sanitation Systems before completion and acceptance by District and Developer shall bear the expense thereof. (f) Developer shall directly pay all costs associated with the construction of the Domestic Water and Sanitation Systems, including, but not limited to, furnishing of materials, and Developer shall keep District free and harmless from such costs. (g) The Domestic Water and Sanitation Systems shall be installed in strict compliance with the Plans. Any deviations from the approved Plans must be approved by District, in writing, prior to being made. (h) Developer is required by this Agreement to install and construct certain improvements which will be dedicated to District upon completion thereof in accordance with the terms of this Agreement. Notwithstanding the foregoing, if Developer does not believe that it is required to perform such work in the same manner and subject to the same requirements as would be applicable to District had it undertaken such construction, including, without limitation, the payment of prevailing wages and other public works requirements pursuant to the California Labor Code, the California Government Code and the California Public Contracts Code, then Developer undertakes such construction at Developer's risk. Should it be determined 9 Cvwo-1 ae (Rev. 6/]0) N 217 17 in the future by either the legislature or a court of competent jurisdiction that Developer was required to comply with some or all of the requirements as would be applicable to District had it undertaken such construction, Developer shall indemnify, defend and hold harmless the District Indemnitees (as defined in Exhibit "D") from all Costs (as defined Exhibit "D") to which they may be subjected or put, by reason of or resulting from failure to comply with public works project requirements, including, but not limited to, the failure to pay prevailing wages or such other requirements as would be applicable to District had it undertaken such construction. (i) Developer hereby irrevocably appoints District to inspect the furnishing and installation of the Domestic Water and Sanitation Systems. Developer shall provide District representatives with reasonable access for inspection purposes. It is understood and agreed that District's inspection personnel shall have the authority to enforce the Plans, which authority shall include requiring that all unacceptable material, workmanship and/or installation be replaced, repaired or corrected by Developer's Contractor. Nothing herein shall be construed to grant District direct control over Developer's Contractor or anyone but Developer or its designee. District's inspection does not include inspection for compliance with safety requirements by Developer's Contractor. Any inspection completed by District shall be for the sole use and benefit of District, and neither Developer nor any third party shall be entitled to rely thereon for any purpose. District does not undertake or assume any responsibility for or owe a duty to select, review or supervise the creation of the Domestic Water and Sanitation Systems. In addition thereto, District's inspection is not for the purpose of determining installed footage of water pipeline. 6. Developer Requirements for Progress for Fire Protection, Progress for Domestic Water and Sanitation Service and Project Completion and Acceptance (a) Upon completion and testing of the domestic water system, and prior to base paving, the Developer may request to progress (place in service) the domestic water system for fire protection only. No water meters will be issued at this stage. Notwithstanding anything contained in this Section 6, District shall provide to the Developer Property, upon written request by Developer and satisfaction of the District's rules, regulations and procedures, water for fire protection on such terms and conditions as shall be acceptable to the District, in its sole and absolute discretion. Developer acknowledges and agrees that provisions of water for fie protection or the use of the improvements in connection therewith neither is an acceptance of 10 CvwD-lac (Rev. Eno) 21$ those improvements (which may only be accepted as provided in this Agreement) nor initiates the warranty period pursuant to subsection (c) (v) below. (b) (i) Upon completion and testing of the domestic water system and sanitation system, and after base paving, the Developer may request to progress (place in service) the domestic water system for fire protection and domestic water service and the sanitation service. The District will issue water meter (s) for the approved phase of the Project and/or in accordance meter release schedules outlined in the Special Agreement(s) if any. (ii) Prior to the fast request for meter (s) , Developer shall pay to the District all Water System Back -Up Facilities Charges, Supplemental Water Supply Charges and other charges related to the provision of domestic water service ("Domestic Water Charges") to the Developer Property. (iii) Prior to the first request for meter (s), Developer shall pay to the District all Sanitation Capacity Charges and other charges related to the provision of sanitation service ("Sanitation Charges") to the Developer Property. (c) (i) Upon completion and testing of the Domestic Water and Sanitation Systems, and after final paving, the Developer shall give District notice of the same. District shall make a final inspection and provide written notice to Developer either confirming that the Domestic Water and Sanitation Systems has been completed in accordance with the requirements of this Agreement or setting forth a punchlist of items that need to be completed or corrected. If District provides such a punchlist, the above - referenced notice and inspection procedure shall be repeated upon completion of the punchlist items. Nothing herein shall be considered a waiver of any warranty, guarantee or other right in favor of the District. (ii) Prior to the acceptance of the Domestic Water and Sanitation Systems by the District, Developer shall provide to District a certified copy of the Covenants, Conditions and Restrictions for the Developer Property. (iii) Upon completion and acceptance of the Domestic Water and Sanitation Systems, Developer shall prepare and execute a Certificate of Completion and Final Acceptance as to the Domestic Water and Sanitation Systems and record said notice with the Office of Recorder of the County of Riverside, State of California. 219 11 CVWD-lac (Rev. 6/10) (iv) Upon receipt of the Certificate of Completion and Final Acceptance, the Bill of Sale provided in Section 2(a)(v) shall convey title of the Domestic Water and Sanitation Systems at no cost and expense to the District. The Domestic Water and Sanitation Systems shall be transferred to District free of all liens and encumbrances. The Developer shall provide CVWD the final construction cost of the Domestic Water and Sanitation Systems. (v) Developer warrants and represents to District that the Domestic Water and Sanitation Systems shall be free from construction defects for eighteen (18) months. The Developer shall maintain in force the CD or LOC required in Section 4 (a) above for the duration of the eighteen (18) month guarantee. (vi) Developer's Engineer shall provide to District all field - engineering surveys associated with the construction of the Domestic Water and Sanitation Systems at Developer's sole cost and expense. Developer shall promptly furnish to District all field notes and grade sheets, together with all location, offset, and attendant data and reports, resulting from Developer's Engineer's field engineering surveys and/or proposed facility design changes, all of which have been prepared in accordance with generally accepted engineering practices. Any inspection or review pursuant to this subsection shall be for the sole use and benefit of District, and neither Developer nor any third party shall be entitled to rely thereon for any purpose. (d) District shall repair, at Developer's cost and expense all failures of the domestic water system which was furnished, installed and/or constructed due to faulty materials or installation, during the period commencing with the acceptance of the domestic water system and within said eighteen (18) month warranty period reference in Section 6(c)(v). District shall invoice Developer for such costs. Developer shall, within thirty (30) days after written demand therefor, pay or cause Developer's Contractor or surety to pay such costs shown on the invoice. Nothing in this subsection shall limit or abrogate any other claims, demands or actions District may have against Developer or Developer's Contractor on account of damages sustained by reason of such defects, nor shall the provisions of this Section limit, abrogate or affect any warranties in favor of District which are expressed or implied by law or set forth in any construction agreement. 12 (Rm 6110) " 220 (e) Developer shall repair, at Developer's cost and expense all failures of the sanitation system which was furnished, installed and/or constructed due to faulty materials or installation, during the period commencing with the acceptance of the sanitation system and within said eighteen (18) month warranty period reference in Section 6(c)(v). Nothing in this subsection shall limit or abrogate any other claims, demands or actions District may have against Developer or Developer's Contractor on account of damages sustained by reason of such defects, nor shall the provisions of this Section limit, abrogate or affect any warranties in favor of District which are expressed or implied by law or set forth in any construction agreement. Project Close Out Requirements After receipt of the Certificate of Completion and Final Acceptance the following requirements shall apply: (a) Developer shall cause the Developer's Contractor and all subcontractors and materialmen to provide unconditional lien and material releases. (b) Developer shall provide District with a declaration by Developer's Contractor that the Developer's Contractor and all persons and entities who furnished material in the construction of the Domestic Water and Sanitation Systems have been paid in full. (c) All permits, plans, construction surveys and operating manuals related thereto, shall be delivered to and become the sole property of the District, subject to Developer's warranty work and other obligations required hereunder. (d) Upon a written request of Developer, District will furnish to the appropriate departments of the appropriate city or county, the Department of Real Estate and/or Department of Corporations of the State of California, a letter from District indicating that financial arrangements have been made for the construction of the Domestic Water and Sanitation Systems for the Developer Property and District is willing to provide domestic water and sanitation service to each and every Unit therein, provided Developer has done all of the following: 13 CvwD-lac . (Rev. 6/10�" 221 time, (i) Complied with all provisions of this Agreement applicable at the (ii) Furnished District an LOC or CD from a bank or savings and loan located and doing business in the State of California in a form approved by District in the amount of Five Thousand Dollars ($5,000.00) or five percent (5%) of the amount of the construction contract(s), whichever sum is greater, . (iii) If required by the appropriate city or county, furnished District with a copy of the bond filed with the appropriate city or county, guaranteeing the construction of required subdivision improvements, including the Domestic Water and Sanitation Systems provided for herein, and Charges. (iv) Paid to District any amount due under the Domestic Water (v) Paid to District any amount due under the Sanitation Charges. 8. General Provisions (a) Developer shall assume the defense of, indemnify and hold harmless District and its officers, directors, administrators, representatives, consultants, engineers, employees and agents and their respective successors and assigns, and each and every one of them, in accordance with the provisions of Exhibit "D" attached hereto and by this reference incorporated herein. (b) Prior to the acceptance of the Domestic Water and Sanitation Systems by District, Developer shall furnish to District any and all documents reasonably requested by District. (c) In the event that construction of the Domestic Water and Sanitation Systems has not begun within twelve (12) months of the date of approval of the Plans, District shall have the right to declare this Agreement void. In the event District exercises said right, it shall have no further obligations under this Agreement. Any new or revised agreement and any related domestic water and/or sanitation plans shall reflect any new conditions in effect at that time and shall require the submittal of domestic water and/or sanitation plans by Developer to 14 CV WD-14C (Rev.6/10) 1N 222 the District for approval. Costs, fees and charges due under said new or revised agreement shall be those which are in effect at the time payment thereof is tendered. (d) All notices provided for hereunder shall be in writing and mailed (registered or certified, postage prepaid, return receipt requested), or by express carrier (return receipt requested) or hand delivered to the parties at the addresses set forth below or at such other addresses as shall be designated by such party and a written notice to the other party in accordance with the provisions of this Section. All such notices shall, if hand delivered, or delivered by express carrier, be deemed received upon delivery and, if mailed, be deemed received three (3) business days after such mailing. DISTRICT: Coachella Valley Water District Attention: General Manager — Chief Engineer Post Office Box 1058 Coachella, California 92236 DEVELOPER: City of La Quinta Attention: Thomas P. Genovese, City Manager 78-495 Calle Tampico La Quinta, California 92253 (e) Time is of the essence of this Agreement and each and every term and provision thereof. (fl This Agreement shall be construed as if prepared by all of the parties hereto. Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. (g) No delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof:, nor shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise of any other right, power or privilege hereunder. 15 CV WD-1 ac `Re" &"°' 223 (h) This instrument, together with the exhibits attached hereto and other writings referenced herein, contain the entire agreement between the parties relating to the subject matter hereof and supersede any and all prior agreements between the parties, oral or written, and any and all amendments thereto. Any oral representations or modifications concerning this instrument shall be of no force and effect excepting a subsequent modification in writing, signed by the parties to be charged. (i) In the event of any litigation or other action between the parties arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled, in addition to such other relief as may be granted, to its reasonable costs and attorneys' fees. 0) If any provision of this Agreement shall be ruled invalid, illegal or unenforceable, the parties shall: (i) promptly negotiate a substitute for the provision which shall, to the greatest extent legally permissible, effect the intent of the parties in the invalid, illegal or unenforceable provision, and (ii) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with subsection (i) above to give effect to the intent of the parties without the invalid, illegal or unenforceable provision. To the extent the parties are unable to negotiate such changes, substitutions or additions as set forth in the preceding sentence, and the intent of the parties with respect to the essential terms of the Agreement may be carried out without the invalid, illegal or unenforceable provision, the balance of this Agreement shall not be affected, and this Agreement shall be construed and enforced as if the invalid, illegal or unenforceable provision did not exist. (k) Each party hereto agrees to execute and deliver such documents and perform such other ads as may be necessary to effectuate the purposes of this Agreement. (1) Each individual executing this Agreement hereby represents and warrants that he or she has the full power and authority to execute this Agreement on behalf of the named parties. (m) Developer shall maintain and make available for inspection by District during regular office hours, accurate records pertaining to the design, construction and installation of the improvements to be constructed by Developer. (n) This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. 16 CV WD-14C (Rev. 6/10) .. 224 (o) If any payment due District hereunder is not paid when due, Developer shall pay to District an additional ten percent (101/6) for each payment due as an administrative processing charge. The parties agree that this late charge represents a fair and reasonable estimate of the costs that District will incur by reason of late payment by Developer. Acceptance of any late charge shall not constitute a waiver of Developer's default with respect to the overdue amount or prevent District from exercising any of the other rights and remedies available to District. Any payment not paid when due shall bear simple interest at the rate of ten percent (10°/u) per annum (provided such amount shall not exceed the maximum rate allowed under California law) from the date due until paid in full. (p) The parties agree that any action or proceeding to enforce or relating to this Agreement shall be brought exclusively in the Federal or State courts located in Riverside County, California, and the parties hereto consent to the exercise of personal jurisdiction over them by any such courts for purposes of any such action or proceeding. (q) This Agreement is entered into within the State of California, and all questions concerning the validity, interpretation and performance of any of its terms or provisions or any of the rights or obligations of the parties hereto shall be governed by and resolved in accordance with the laws of the State of California. (r) Subject to the obligations of Developer set forth herein, and the terms and conditions hereof; upon accepting title to the Domestic Water and Sanitation Systems and facilities described above in this Agreement, District shall assume all rights and obligations of ownership including, without limitation, the operation of the systems at no further cost to Developer. (s) The terms and provisions set forth in this Agreement shall be deemed provisions, terms and/or covenants running with the Developer Property in accordance with applicable law, including, without limitation, Section 1468 of the California Civil Code and shall pass to and be binding upon the successor owners of the Developer Property. As such, all successor owners of the Developer Property will have any of the rights, responsibilities and liabilities of Developer, as if such person or entity originally executed this Agreement in place and stead of Developer. Each and every contract, deed or other instrument hereafter executed covering or conveying the Developer Property, or any portion thereof; shall conclusively be held to have been executed, delivered and accepted subject to such terms and conditions regardless of 17 cvwn-1� 225 (Rev. 6410) whether such terms and conditions are set forth in such contract, deed or other instrument. No transfer of the Developer Property shall relieve Developer of any responsibility or liability under this Agreement. (t) Following fulfillment of the terms and conditions herein and acceptance by District of the Domestic Water and Sanitation Systems, District will provide domestic water service and sanitation service to the Developer Property in accordance with the Rules. DISTRICT: COACHELLA VALLEY WATER DISTRICT, a public agency of the State of California By Its DEVELOPER. City of La Quinta a Its: City Manager 18 CV WD-14C (R-. 8,0?)„ 22 6 STATE OF CALIFORNIA ss COUNTY OF On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. STATE OF CALIFORNIA ss COUNTY OF (Seal) On before me, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: (Seal) - 2�7 EXHIBIT LIST EXHIBIT "A" LEGAL DESCRIPTION OF DEVELOPER PROPERTY EXHIBIT `B" DEPICTION OF DEVELOPER PROPERTY EXHIBIT "C" INSURANCE REQUIREMENTS EXHIBIT "D" INDEMNITY PROVISION 228 EXHIBIT "A" TO STANDARD DOMESTIC WATER SYSTEM AND SANITATION SYSTEM INSTALLATION AGREEMENT LEGAL DESCRIPTION OF DEVELOPER PROPERTY 229 EXHIBIT `A' LEGAL DESCRIPTION RIGHT-0 F-WAY . EASEM ENT BEING A PORTION OF A PARCEL OF LAND LYING WITHIN THE SOUTHWEST ONE - QUARTER OF THE SOUTHEAST ONE QUARTER OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST ONE QUARTER OF THE SOUTHEAST ONE QUARTER OF SAID SECTION 29, AS SHOWN ON RECORD OF SURVEY, RECORDED IN BOOK 107, PAGE 13, OF RECORDS OF SURVEY OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID SOUTHWEST ONE QUARTER OF THE SOUTHEAST ONE QUARTER OF SAID SECTION 29, SOUTH 89'48'33" EAST, 55.00 FEET TO THE EASTERLY RIGHT OF WAY LINE OF DUNE PALMS ROAD SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE OF DUNE PALMS ROAD, SOUTH 00.10'12' EAST, 52.31 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 38.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 89'49'48' WEST; THENCE LEAVING SAID EASTERLY RIGHT OF WAY LINE OF DUNE PALMS ROAD NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 27'16'19- AN ARC LENGTH OF 18.09 FEET; THENCE NORTH 60'50'12" EAST, 4221 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE SOUTHWESTERLY WITH A RADIUS OF 38.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 04'34'17- EAST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 24'05'5T' AN ARC LENGTH OF 15.98 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHEASTERLY WITH A RADIUS OF 275.47 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 2B'40'14" WEST; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15032'08" AN ARC LENGTH OF 74.69 FEET; THENCE NON -TANGENTIAL TO LAST SAID CURVE SOUTH 89048'33" EAST, 237.66 FEET; THENCE NORTH OQ'11'27- EAST, 45.00 FEET TO A POINT ON SAID NORTHERLY LINE OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 29; THENCE ALONG SAID NORTHERLY LINE NORTH 8904833" WEST, 383.76 FEET TO THE TRUE POINT OF BEGINNING. CONTAINS AN AREA OF 14,356 SQUARE FEET, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT'B' ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. PAGE ] OF 2 VA-ID05 230 EXHIBIT'A' LEGAL DESCRIPTION RIGHT-OF-WAY EASEMENT SUBJECT TO COVENANTS, CONDMONS, RESERVATIONS, RESTRICTIONS, RIGHTS OF WAY AND EASEMENTS OF RECORD, IF ANY. THIS DESCRIPTION HAS BEEN PREPARED BY ME OR UNDER MY DIRECTION AND DATED THIS /D f4 DAY OF NOVEMBER, 2010. C 1110. AU NSON, L.S. 5394 LICENSE EXPIRES 09/30/12 PAGE 2 OF 2 VA-LD05 • 231 EXHIBIT "B" TO STANDARD DOMESTIC WATER SYSTEM AND SANITATION SYSTEM INSTALLATION AGREEMENT DEPICTION OF DEVELOPER PROPERTY 232 I 55' I ( N.W. COR. OF S.W. 1/4, O S.E. 1/4, SEC. 28 Q L1 N F.O.0 al a 0 L�' 55' 1 . I M ON- Vi n 01M w z SW 1/4 CDR. a � - AVENUE 48 LINE TABLE LINE BEARING LENGTH Lt 33" 55.00' L2 12"E 52.31' L3 NN6O'50'12"E 42.21' L4 27"E 45.D0' N.W. 1/4, S.E. 1/4 SECTION 29 NORTH LINE OF S.W. 1/4 OF S.E. 1/4 OF SEC. 29 T.5S., R.7E., S.B.M.1 S.W. 1/4, S.E. 1/4 CURVE TABLE CURVE LENGTH RADIUS I DELTA C1 18.09' 38.00' 27'16'19" C2. 15.98' 38.00' 24'05'57" C3 74.69' 275.47' 15-32'08" LEGEND: RIGHT OF WAY LINE — - - — CENTER LINE - — RADIAL TABLE BEARING N62'53'53"W N N04'3417"E S28'40'14"W S13'08'06"W S89'49'48"W LEGAL DESCRIPTION BOUNDARY LINE LOT LINE VA-LD05 AREA=14,356 S.F. NEMM DATE: VA CONSULTING INC EXFABIT g'. PRo�Dr Nu taam.oam CIVIL ENGINEERS W,tc tl/OB/ID r.5v LAND arRvno� LAND PUNNERs PLAT TO ACCOMPANY LEGAL DESCRIPININ IN LLL�/—l m OOV AVw 6A0D OAK CINYOPI STIR 1ED LM91 O�MW THE CITY OF LA WNTA ___CWN4T..OF-RMVDtSW-SUV--E-CAUPORNIA » 233 EXHIBIT "C" TO STANDARD DOMESTIC WATER SYSTEM AND SANITATION SYSTEM INSTALLATION AGREEMENT INSURANCE REQUIREMENTS 234 11/4:11:31r� INSURANCE REQUIREMENTS Developer shall carry and maintain, at Developer's sole cost and expense, until the Domestic Water and Sanitation Systems have been installed and completed, not less than the following coverage and limits of insurance which shall be maintained with insurers and under forms of policies satisfactory to District: occurrence. (a) Worker's Compensation and Employer's Liability: 0) State Workers Compensation — coverage as required by law. (ii) Employer's Liability with limits of at least $1,000,000 per (b) Automobile Liability for Bodily Injury, Death and Property Damage — $1,000,000 per person, $2,000,000 per occurrence. (c) Commercial General Liability for Bodily Injury, Death and Property Damage - $1,000,000 per person, $2,000,000 per occurrence. The foregoing policies shall include, without limitation, owned, nonowned and hired automobile (vehicle) liability, contractual liability, personal injury, blanket commercial, broad form property damage and product/completed operation liability coverage. These policies may contain an aggregate limit not less than the occurrence limit. The required limits may be satisfied by a combination of a primary policy and an excess or umbrella policy. shall: All insurance required pursuant to the express provisions of this Agreement (a) Provide that coverage shall not be revised, canceled or reduced until at least thirty (30) days written notice of such revision, reduction or cancellation shall have been given to District. In the event any policies of insurance are revised, canceled or reduced, Developer shall, prior to the revision, cancellation or reduction date, submit evidence of new insurance to the District complying with this Agreement. (b) Be issued by insurance companies which are qualified to do business in the State of California and which have a rating satisfactory to District and by such rating service as shall be reasonably acceptable to District. (c) Be reasonably satisfactory to District in all other reasonable respects. 235 3. The policies required pursuant to this Agreement or a certificate of the policies, together with evidence of payment of premiums, shall be provided to District prior to the commencement of construction of any improvement hereunder. 4. The insurance to be maintained by Developer pursuant to this Agreement shall: insureds; volunteers; (a) Name District, and its officers, employees and volunteers as additional (b) Apply severally to Developer and District, and its officers, employees and (c) Cover Developer and District as insureds in the same manner as if separate policies had been issued to each of them; (d) Contain no provisions affecting the rights which either of them would have as claimants if not so named as insureds; (e) Be primary insurance with any other valid and collectible insurance available to the aforesaid additional insureds constituting excess insurance, and each policy shall be endorsed substantially as follows: "The insurance afforded by this policy to District shall be primary insurance and other valid and collectible insurance available to District shall be excess insurance and, under no circumstances, shall be considered contributory." (1) Have a deductible or deductibles, if any, which are no greater than those normally maintained for similar projects in the State of California and shall contain a waiver of subrogation and endorsement in favor of the District. 236 EXHIBIT "D" MH STANDARD DOMESTIC WATER SYSTEM AND SANITATION SYSTEM INSTALLATION AGREEMENT INDEMNITY PROVISION 231 EXHIBIT D INDEMNITY Developer shall assume the defense of, indemnify and hold harmless District and its officers, directors, administrators, representatives, consultants, engineers, employees and agents and their respective successors and assigns (collectively, "District Indemnitees"), and each and every one of them, from and against any and all actions, causes of action, damages, demands, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) claims, losses and expenses of every type and description ("Costs") to which they may be subjected or put, by reason of, or resulting from, (A) this Agreement, (B) the design, engineering and construction of the Domestic Water and Sanitation Systems, (C) the performance of or failure to perform, the work covered by this Agreement which is caused or occasioned by any act, action, neglect on the part of Developer or its Representatives (as defined below), (D) any death, injury, property damage, accident or casualty caused or claimed to be caused by Developer or its Representatives or involving Developer or its Representatives or its or their property, (E) any breach by Developer of its obligations under this Agreement, and (F) any enforcement by District of any provision of this Agreement. The foregoing indemnity shall not apply to the extent any such Costs are ultimately established by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of the District Indemnitees or any of them. District shall make all decisions with respect to its representation in any legal proceeding concerning this Section. If Developer fails to do so, District shall have the right, but not the obligation, to defend the same and charge all of the direct or incidental Costs of such defense, including fees and costs, to Developer and to recover the same from Developer. The term "Representatives" shall mean employees, representatives, agents, contractors, subcontractors or any other persons directly or indirectly employed by any one of the foregoing or reasonably under the control of any of the foregoing or for whose acts any of the foregoing may be liable. No provision of this Agreement shall in any way limit the extent of the responsibility of Developer for payment of damages resulting from its operations or the operations of any of its contractors, engineers, agents or employees. Developer further covenants and agrees to pay, or to reimburse District, its agents, employees, engineers, consultants, officers, directors and administrators, for any and all costs, attorneys' fees, liabilities or expenses in connection with the investigating, defending » 238 against or otherwise in connection with any Costs arising out of or in connection with Developer's obligations pursuant to this Agreement, except liability arising through the gross negligence or willful misconduct of the District Indemnitees, or any of them. District shall have the right, at Developer's expense, to commence, to appear in or to defend any action or proceeding arising out of and in connection with the Agreement, and in connection therewith, may pay all necessary expenses if Developer fails upon reasonable notice to so commence, appear in or defend any action or proceeding with counsel reasonably acceptable to District. Developer shall be furnished with copies of bills relating to the foregoing upon request. 239 N Z� Z i CD X 1 1 2 , Ill W O - --------- — U 200 Z W j ; _Vk I N - In 13mi1S VOAi 3k1f11f1� I 31 �- ` li Z o Z IZ I= O J� f. 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Y51111i Hill, E3 __� @ �.a � ip5y6e a v�tl�1a € �€� 243 f COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Acceptance of Colonel Paige Middle School Restroom, Project No. 2010-05, and Appropriation of Additional Funding RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: I6 STUDY SESSION: PUBLIC HEARING: Accept Colonel Paige Middle School Restroom, Project No. 2010-05, as 100% complete; authorize the City Clerk to file a Notice of Completion with the Office of the County Recorder; authorize staff to release retention in the amount of $7,123, thirty- five (35) days after the Notice of Completion is recorded as directed by the City Attorney; and appropriate $ 29,000 in additional funding. FISCAL IMPLICATIONS: The following is a budget summary: Project Budget Total $ 220,774 Amount Spent Through May 16, 2011 (Including Restroom) ($ 237,301) Remaining Anticipated Inspection, Testing & Survey Costs ($2,000) Revised Project Budget Amount Available ($ 18,527) Remaining Fiscal Commitment to Contractor 1$ 9,640) Project Budget Amount (Needed) After Construction Efforts ($ 28,167) Additional Appropriation Amount Requested $ 29,000 Original Construction Contract Amount $ 40,607 Contract Change Order Nos. 1-2 $ 27,820 Unilaterally Issued Contract Change Order No. 3 $ 2,800 New Contract Total $ 71,227 Amount Paid to Contractor to Date 1$ 61,587) Total Remaining Fiscal Commitment to Contractor $ 9,640 Total Retention to be Released 1$ 7,123) Contract Amount Remaining to be Billed by Contractor $ 2,517 '..» 245 Funds from unappropriated Quimby Funds (220-0000-290.00-00) are available for this $29,000 appropriation request. Adequate funding will be available to pay the contractor's remaining billing ($2,517) and retention ($7,123) for project closeout. CHARTER CITY IMPLICATIONS: The project is 100% funded with locally generated Quimby Funds. As such, the project was advertised as a non -prevailing wage improvement. BACKGROUND AND OVERVIEW: The improvement installed is a new pre -fabricated restroom facility at the Colonel Paige Middle School (Attachment 1) to support the City's use of the newly lighted sports fields. The restroom facility was a condition included in the joint use agreement with Desert Sands Unified School District (DSUSD) for being able to construct the sports field lighting. On April 20, 2010, the City Council adopted a Resolution approving the Fiscal Year 2010-2011 through 2014-2015 Capital Improvement Program (CIP). The Colonel Paige Middle School Restroom was included within the adopted.CIP and scheduled for funding during Fiscal Year 2010-201 1. On June 17, 2010, a Professional Services Agreement (PSA), in the amount of $19,950, was issued to David Evans and Associates, Inc. to prepare the Plans, Specifications and Engineers Estimate (PS&E) for the proposed pre -fabricated restroom to be installed at the Colonel Paige Middle School. The PSA was executed by the City Manager in accordance with the City's procedure for "minor projects." Staff was authorized to procure the pre -fabricated restroom facility separately. The company that staff proposed to provide the pre -fabricated restroom facility was Enviroplex. The rationale for proceeding with the acquisition as a sole source was that this building was recommended by DSUSD and that it met the requirements of the Department of State Architect. On July 20, 2010, City Council authorized the City Manager to award a contract to the lowest responsible bidder after the August 10, 2010 Bid Opening Date. On September 21, 2010, the City Council acted to ratify the contract awarded to Contreras Construction Co. for $40,607 to construct the Colonel Paige Middle School Restroom, Project No. 2010-05. On December 13, 2010, a Notice to Proceed was issued with a twenty-five (25) working day contract completion time starting December 20, 2010, and ending on 246 January 24, 2011. Contract Change Orders extended the project for a total of nineteen (19) working days or until February 22, 2011. The project was deemed substantially complete on February 18, 2011. As per project specifications Section 1500-3.2, no liquidated damages or early completion incentives are recommended. These improvements were constructed at Colonel Mitchell Paige Middle School on Palm Royale Drive, just east of Washington Street. Contract Change Order Nos. 1 and 2 were issued to allow for the installation of additional Fire Sprinkler Equipment and Alarms as directed by the Department State Architect (DSA) to bring the restroom into compliance with local school and fire sprinkler codes. Additionally, due to grade and drainage conflicts, it was determined that a sewage pump would be needed to be installed in order for the restroom to properly drain to the existing sewer lines. Additional excavations, fencing, and modifications were needed. Contract Change Order No. 3 was issued as directed by the DSA to remove and replace damaged existing truncated domes and modify access striping in order to provide proper Americans with Disabilities Act (ADA) access.from the parking lot to the new restroom. A cage was also needed to protect the fire sprinkler equipment and alarms from vandalism. The total cost for Change Orders No. 1, 2, and 3 is $30,620. Just prior to the spring break recess, City staff tried several times to contact the contractor. The contractor failed to respond to several phone calls and emails. After approximately two weeks, staff was contacted by the contractor to inform them that the company filed Chapter 7 Bankruptcy Protection. Staff has not heard back from the contractor since the initial discussions regarding the filing of Chapter 7 Bankruptcy. To complete the truncated domes and finish the project, the City hired Archuleta Concrete to install the truncated domes and complete the project. Since the original contractor failed to contact the City and complete the contract change order process for the fire sprinkler equipment cage and truncated dome repair, the City unilaterally issued Contract Change Order No.3 for the additional work. The project's construction effort is now deemed to be 100% complete and is in compliance with the plans and specifications. Staff was directed by the City Attorney to attempt to contact the contractor and proceed with the project's acceptance. However, the City Attorney advises that the City should hold the final payment to the contractor pending direction from the bankruptcy court. Prior to filing the Notice of Completion, staff must receive authorization from the City Council to approve this project as 100% complete and authorize the City Clerk to file a Notice of Completion. » 241 FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Accept the Colonel Paige Middle School Restroom, Project No. 2010-05 as 100% complete; authorize the City Clerk to file a Notice of Completion with the Office of the County Recorder; authorize staff to release retention in the amount of $ 7,123, thirty-five (35) days after the Notice of Completion is recorded as directed by the City Attorney; and approve the Appropriation of $29,000 in Additional Funding; or 2. Do not accept Colonel Paige Middle School Restroom, Project No. 2010-05 as 100% complete; do not authorize the City Clerk to file a Notice of Completion with the Office of the County Recorder; do not authorize staff to release retention in the amount of $ 7,123, thirty-five (35) days after the Notice of Completion is recorded; do not approve the Appropriation of $29,000 in Additional Funding; or 3. Provide staff with alternative direction. Respectfully submitted, o othy R. o ass n P.E. Public Work irec r/City Engineer Approved for submission by: homas P. Genovese, City Manager Attachment: 1. Vicinity Map 248 ... Tt�'nmm`?Trv'w�^T��. �. . . nnSw Y am.-.-^?M1:...n�rnn^rRf^rr�«.. �.vrv+r.. .�.R vr*ary —.?r ....�nr.Mgmvr w+...•..m n.:..nFn n. �..in. . vi..rr. .............. .... � ATTACHMENT 1 W H ,^ , U) J r Ulit » 249 COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Approval of Plans, Specifications & Engineer's Estimate (PS&E) of Probable Construction Costs and Authorization to Advertise for Bid the Fiscal Year 201 1-2012 Slurry Seal Program, Project . No. 2010-15 RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve the plans, specifications and engineer's estimate of probable construction costs, and authorize staff to advertise for bid the Fiscal Year 2011-2012 Slurry Seal Program, Project No. 2010-15. FISCAL IMPLICATIONS: The project is included within the Public Works Department Operational Budget for Fiscal Year 2011-2012. The line item for this project has an unspent amount available of $921,186 (Account Number 101-7003-431.34-04) from the original budget amount of $955,106. As with the last slurry seal project, the current effort includes a base bid area and two additive alternates. A vicinity map is provided at Attachment 1 . The basis of award will be the lowest combined price of the base bid area plus both additive alternates. The Engineer has estimated the cost of the base bid area to be $724,613, Additive Alternate Number 1 to be $195,462, and Additive Alternate Number 2 to be $267,201. After bids are received staff will review the costs of the base bid and additive alternates and make any funding recommendations at the time of award of contract. CHARTER CITY IMPLICATIONS: The project is 100% funded by the City's General Fund. As such, the project will be advertised for bid as a non -prevailing wage improvement and may result in a cost savings to the City as of this point in time. A case is pending before the California Supreme Court that could impact this exemption. 250 BACKGROUND AND OVERVIEW: In 2003, the City Council directed staff to implement an Annual Pavement Preservation and Maintenance Program (PMP) maintaining an average Pavement Condition Index (PCI) rating of 80 or better. The PMP is a citywide survey that provides a current inventory of the City's streets, along with an analysis of the existing condition and preservation recommendations. The PMP was last updated in November 2007 and is scheduled for update in 2012. This year's project will slurry seal approximately 5 million square feet of street surface and restripe the streets after the slurry seal is applied, if the base bid area and additive alternates are awarded in total. In addition the project will refresh the existing striping citywide on all major, primary, and secondary arterials, and collector streets. The project specifications and bid documents for the City's Fiscal Year 2011 -2012 Slurry Seal Program, Project Number 2010-15 are available for review within the City's Public Works Department. Contingent upon the City Council's approval and authorization to advertise for bid on June 7, 2011, the following is the project schedule: City Council Authorization to Advertise for Bid June 7, 2011 Project Advertisement June 8, 2011 thru July 7, 2011 Construction (30 working days) August — September 2011 Accept Improvements October 2011 FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve the PS&E of probable construction costs, and authorize staff to advertise for bid the Fiscal Year 2011 -2012 Slurry Seal Program, Project No. 2010-15; or 2. Do not approve the PS&E of probable construction costs, and authorize staff to advertise for bid the Fiscal Year 2011-2012 Slurry Seal Program, Project No. 2010-15; or 3. Provide staff with alternative direction. %.N 251 Respectfully submitted, Ed Wimmer, P. . Development a ices Principal Engineer Attachment: 1. Vicinity Map Approved for submission by: Thomas P. Genovese, City Manager .'." 1 252 T44r 4 44 COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Adoption of a Resolution Consenting to the Use of Redevelopment Agency Funding for a Purchase and Sale Agreement Among the City of La Quinta, the La Quinta Redevelopment Agency, and Richard and Patrice Varg€ for Property. Located North of La Quinta Community Park (APNs: 773- 072-005, 021 through 027) and Making Certain Findings Pursuant to Health and Safety Code Section 33445 RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: _ CONSENT CALENDAR: 13 STUDY SESSION: PUBLIC HEARING: Adopt a Resolution of the City Council that consents to the use of Redevelopment Agency funding of up to $995,000 from the Agency's Project Area No. 1 Capital Projects Fund for the Purchase and Sale Agreement between Richard and Patrice Varge (Attachment 1), makes findings that the acquisition of this property conforms to the requirements of Health and Safety Code Section 33445, and authorizes the City Manager to execute the acceptance of the grant deed. FISCAL IMPLICATIONS: If this transaction is approved, the' Redevelopment Agency will fund up to $995,000 to purchase this property; these expenses are comprised of the purchase price of $987,624 plus customary closing costs. This acquisition will not require the expenditure of City funds. BACKGROUND AND OVERVIEW: The Redevelopment Agency Board has directed staff to pursue negotiations in order to purchase various properties in the Village to facilitate off-street parking opportunities, the expansion of recreation opportunities, or the development of affordable housing. The Varg6 property is a 34,056 square foot parcel located north of La Quinta Park and west of the City property the Agency purchased for affordable housing development (the former Ostrowsky property the, Agency purchased in August 2007) (Attachment 2). Pursuant to the Purchase and Sale Agreement, the La Quinta Redevelopment Agency would purchase this property for the City at a cost of $987,624 or $29.00 per square foot, plus customary closing. costs. The Redevelopment Agency will be funding the acquisition and customary 254 closing costs. The rationale for purchasing this property is to preserve vacant land for possible public parking, recreation uses or affordable housing. Pursuant to Health and Safety Code Section 33445, the Agency may fund the cost to acquire land and construct public improvements if the City Council and Agency Board make findings that support this expenditure, and if the City Council consents to having the Agency expend these funds. The acquisition of this property will eliminate blight in Project Area No. 1 by facilitating the expansion of recreation uses, or by providing additional off-street parking opportunities, or facilitating the development of affordable housing. This acquisition is consistent with the Implementation Plan for Project Area No. 1 . FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Adopt a Resolution of the City Council that consents to the use of Redevelopment Agency funding of up to $995,000 from the Agency's Project Area No. 1 Capital Projects Fund for the Purchase and Sale Agreement between Richard and Patrice Varg6, makes findings that the acquisition of this property conforms to the requirements of Health and Safety Code Section 33445, and authorizes the City Manager to execute the acceptance of the grant deed; or 2. Do not adopt a Resolution of the City Council adopt a Resolution of the City Council that consents to the use of Redevelopment Agency funding of up to $995,000 from the Agency's Project Area No. 1 Capital Projects Fund for the Purchase and Sale Agreement between Richard and Patrice Varg6 ; or 3. Provide staff with alternative direction. Respectfully submitted, Debbie Powell Economic Development Project Manager Approved for submission by: Thomas P. Genovese City Manager Attachments: See Redevelopment Agency Varg6 consent staff report for attachments 255 RESOLUTION NO. 2011- A RESOLUTION OF THE CITY OF LA QUINTA, CONSENTING TO THE USE OF REDEVELOPMENT AGENCY FUNDING FOR THE PURCHASE AND SALE AGREEMENT BETWEEN THE LA QUINTA REDEVELOPMENT AGENCY, RICHARD VARGE AND PATRICE VARGE, MAKING CERTAIN FINDINGS PURSUANT TO HEALTH AND SAFETY CODE SECTION 33445 WITH RESPECT TO THE AGENCY'S EXPENDITURE, AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE ACCEPTANCE OF THE GRANT DEED WHEREAS, the La Quinta Redevelopment Agency ("Agency") is a redevelop- ment agency organized and existing under the California Community Redevelopment Law ("Health & Safety Code § 33000 et seq.) ("CRL") and has been authorized to transact business and exercise the powers of a redevelopment agency pursuant to action of the City Council of the City of La Quinta ("City Council" or "City," as applicable); and WHEREAS, pursuant to the CRL, the City Council 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, Agency staff has negotiated a Purchase and Sale Agreement and Escrow Instructions with Richard Varge, and Richard and Patrice Vargd, for real property located north of La Quinta Community Park ("Property") for off-street parking opportunities, the expansion of recreation opportunities, or the development of affordable housing (collectively, the "Infrastructure Improvements"), to facilitate access to the Village; and WHEREAS, the Property is located within the Project Area; and WHEREAS, the Agreement would provide for the Agency's expenditure of Nine Hundred Eighty -Seven Thousand Six Hundred Twenty -Four Dollars ($987,624) plus closing costs to acquire the Properties; WHEREAS, with the legislative body's consent and the satisfaction of certain specified requirements set forth in Health and Safety Code Section 33445, the CRL authorizes redevelopment agencies to expend tax increment funds to acquire real property for, and to fund the cost of the installation and construction of, publicly owned buildings, facilities, and improvements; and .» 256 Resolution No. 2011- Vargo Property Purchase and Sale Agreement Adopted: June 7, 2011 Page 2 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 Agency's financial contribution pursuant to the Agreement is necessary to effectuate the purposes of the Redevelopment Plan; NOW THEREFORE, BE IT RESOLVED by the City Council of the City of La Quinta, as follows: SECTION 1. The above recitations are true and correct SECTION 2. Pursuant to Health and Safety Code Section 33445(a), the City Council of the City of La Quinta finds and determines that: A. The acquisition of publicly owned land pursuant to the Agreement for the future development of the Infrastructure Improvements is of benefit to the Project Area, by helping to eliminate blight within the Project Area, in that the Infrastructure Improvements will consist of public infrastructure improvements, and the Redevelopment Plan provides for the elimination, and prevention of the spread, of blight and blighting influences through the installation, construction, or re -construction of streets, utilities, and other public facilities and improvements. B. No other reasonable means of financing the purchase of the Property or the Infrastructure Improvements is available for the following reasons: (i) City monies are dedicated to critical police, fire, and other necessary expenditures, including other capital improvement projects; (ii) the only practical means of paying for the Property and Infrastructure Improvements is to use Agency funding; (iii) without Agency funding, the Property could not be acquired and Infrastructure Improvements would not be completed, all to the detriment of the Project Area. C. The acquisition of the Property and the future installation of the Infrastructure Improvements are consistent with the Agency's implementation plan adopted pursuant to Health and Safety Code Section 33490 ("Implementation Plan"), in that improving public infrastructure and facilities within the Project Area are goals set forth in the Implementation Plan. SECTION 3. The Agency's expenditure for the Property and for future development with the Infrastructure Improvements is necessary to effectuate the 251 Resolution No. 2011- Vargo Property Purchase and Sale Agreement Adopted: June 7, 2011 Page 3 purposes of the Redevelopment Plan and is in the best interests of the City of La Quinta. SECTION 4. The City Council hereby consents to the use of Agency funding to acquire the subject Property. SECTION 5. The City Council directs its City Manager to (i) sign such documents that require the City's signature in order to effectuate the City's acquisition of the Property, and (ii) take such other and further actions as may be necessary and proper to carry out the terms of the Agreement. SECTION 6. The City Manager is authorized to accept the conveyance of the Property, and to take such other actions and execute such other documents as may be necessary to implement and affect this Resolution on behalf of the City. PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta City Council held on this 7th day of June, 2011, by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: DON ADOLPH, Mayor City of La Quinta ATTEST: VERONICA J. MONTECINO, CMC, CITY CLERK City of La Quinta (City Seal » 258 Resolution No. 2011- Vargo Property Purchase and Sale Agreement Adopted: June 7, 2011 Page 4 APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta vo 259 G ` OF COUNCIL/RDA MEETING DATE: June 7, 2011 ITEM TITLE: Adoption of a Resolution Consenting to the Use of Redevelopment Agency Funding for, and Approving Purchase and Sale Agreements Between the City of La Quinta, and (1) Thomas H. Casey, Chapter 7 Bankruptcy Trustee for 5-Plex Located on the South Side of Avenida La Fonda (APN 770-125-003), and (2) Yessayian Family Ltd. Partnership for 5-Flex Located on the South Side of Main Street (APN: 770-124-004), and Making Certain Findings Pursuant to Health and Safety Code Section 33445 RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: 19 STUDY SESSION: PUBLIC HEARING: Adopt a Resolution of the City Council that consents to the use of Redevelopment Agency funding of up to $812,500 from the Agency's Project Area No. 1 Capital Projects Fund and Approves Purchase and Sale Agreements for the Purchase of the 5- Plex Located on the South Side of Avenida La Fonda (APN 770-125-003) and 5-Plex Located on the South Side of Main Street (APN: 770-124-004) and makes findings that the acquisition of this property conforms to the requirements of Health and Safety Code Section 33445, and authorizes the City Manager to execute the acceptance of the grant deeds. FISCAL IMPLICATIONS: The Agency will expend approximately $812,500, including land costs of $677,500; estimated closing costs of $10,000; estimated relocation costs of $80,000; and estimated demolition costs of $45,000. These acquisitions will not require the expenditure of City funds. BACKGROUND AND OVERVIEW: The Agency Board has directed staff to pursue the negotiations in order to purchase of various properties in the Village, which could improve public access to and within the Village (Attachment 1 — Property Site Map). The Fischer 5-Plex is located on the south side of Avenida La Fonda and had been in foreclosure with the Bankruptcy Court. This apartment complex has two .units 260 occupied. The remaining three units are uninhabitable due to the owner's inability to complete a rehabilitation project. Acquiring the Fischer 5-plex would allow the Redevelopment Agency to relocate the tenants, and demolish the blighted building. The property is currently listed for sale at $275,000. The sales price set by the Trustee is $275,000, or $17.00 per square foot (Attachment 2 - Thomas H. Casey (Fischer) Purchase and Sale Agreement). The Yessayian 5-Plex is located on the south side of Main Street (formerly Avenida Buena Ventura), west of the Library. Upon purchase of this parcel, the City will own the majority of the block (exception of General Telephone parcel and Old Town parking lot). The 5-plex apartment building on Main Street has two tenants. All the remaining units are unoccupied. The building is in fair condition. The proposed purchase price for the property is $28.50 per square foot, or $402,500 (Attachment 3 - Yessayian Family Ltd. Partnership Purchase and Sale Agreement). The average purchase price for both properties combined is $22 per square foot. The Agency recently acquired the Fisher 4-Plex on the north side of Avenida La Fonda, and the Varge property, for $29 per square foot. The purchase prices are in line with recent appraised values. Pursuant to Health and Safety Code Section 33445, the Agency may fund the cost to acquire land and construct public improvements if the City Council and Agency Board make certain findings that support this expenditure, and if the City Council consents to having the Agency expend these funds. The acquisition of this property will eliminate blight in Project Area No. 1 by facilitating the expansion of recreation uses, or by providing additional off-street parking opportunities, or facilitating the development of affordable housing. This acquisition is consistent with the Implementation Plan for Project Area No. 1. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Adopt a Resolution of the City Council that consents to the use of Redevelopment Agency funding of up to $812,500 from the Agency's Project Area No. 1 Capital Projects Fund and Approves Purchase and Sale Agreements for the Purchase of the 5-Plex Located on the South Side of Avenida La Fonda (APN 770-125-003) and 5-Plex Located on the South Side of Main Street (APN: 770-124-004) and makes findings that the acquisition of this property conforms to the requirements of Health and Safety Code Section 33445, and authorizes the City Manager to execute the acceptance of the grant deeds.; or 2. Do not adopt a Resolution of the City Council consenting to the use of Agency funds for and approving the Purchase and Sale Agreements and making findings pursuant to Health and Safety Code Section 33445; or 261 3. Provide staff with alternative direction. Respectfully submitted, Debbie Powell Economic Development Project Manager Approved for submission by: Thomas P. Genovese, City Manager Attachments: 1. Property Site Map 2. Thomas H. Casey (Fischer) Purchase and Sale Agreement 3. Yessayian Family Limited Partnership Purchase and Sale Agreement 26� RESOLUTION NO. 2011- A RESOLUTION OF THE CITY OF LA QUINTA, CONSENTING TO THE USE OF REDEVELOPMENT AGENCY FUNDING FOR, AND APPROVING PURCHASE AND SALE AGREEMENTS WITH THE YESSAYIAN FAMILY LIMITED PARTNERSHIP AND THE BANKRUPTCY TRUSTEE FOR THE ESTATE OF MICHAEL ANTHONY FISCHER, SR., AND MAKING CERTAIN FINDINGS PURSUANT TO HEALTH AND SAFETY CODE SECTION 33445 WITH RESPECT TO THE AGENCY'S EXPENDITURE WHEREAS, the La Quinta Redevelopment Agency ("Agency") is a redevelop- ment agency organized and existing under the California Community .Redevelopment Law ("Health & Safety Code § 33000 et seq.) ("CRL") and has been authorized to transact business and exercise the powers of a redevelopment agency pursuant to action of the City Council of the City of La Quinta ("City Council" or "City," as applicable); and WHEREAS, pursuant to the CRL, the City Council 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, Agency staff has negotiated a Purchase and Sale Agreement with the Yessayian Family Limited Partnership, for real property located at 78-153 Main Street (formerly Avenida Buena Ventura) and for real property located at 78- 181 Avenida La Fonda (collectively, "Properties") for off-street parking opportunities, the expansion of recreation opportunities, or the development of affordable housing (collectively, the "Infrastructure Improvements"), to facilitate access to the Village; and WHEREAS, the Properties are located within the Project Area; and WHEREAS, the Agreements would provide for the Agency's expenditure of Four Hundred Two Thousand Five Hundred Dollars ($402,500) plus closing costs to acquire the property located on Main Street and Two Hundred Seventy -Five Thousand Dollars ($275,000) plus closing costs to acquire the property on La Fonda; WHEREAS, with the legislative body's consent and the satisfaction of certain specified requirements set forth in Health and Safety Code Section 33445, the CRL authorizes redevelopment agencies to expend tax increment funds to acquire real 263 Resolution No. 2011- Yessaylan/Fischer Property Purchase and Sale Agreement Adopted: June 7, 2011 Page 2 property for, and to fund the cost of the installation and construction of, publicly owned buildings, facilities, and improvements; and WHEREAS, the Agreements are in accordance with the Redevelopment Plan and is of benefit to the Project Area and the City of La Quinta; and WHEREAS, the Agency's financial contribution pursuant to the Agreements is necessary to effectuate the purposes of the Redevelopment Plan; NOW THEREFORE, BE IT RESOLVED by the City Council of the City of La Quinta, as follows: SECTION 1. The above recitations are true and correct. SECTION 2. Pursuant to Health and Safety Code Section 33445(a), the City Council of the City of La Quinta finds and determines that: A. The acquisition of land pursuant to the Agreements for the future development of the Infrastructure Improvements is of benefit to the Project Area, by helping to eliminate blight within the Project Area, in that the Infrastructure Improvements will consist of public infrastructure improvements, and the Redevelopment Plan provides for the elimination, and prevention of the spread, of blight and blighting influences through the installation, construction, or re -construction of streets, utilities, and other public facilities and improvements. B. No other reasonable means of financing the purchase of the Properties or the Infrastructure Improvements is available, for the following reasons: (i) City monies are dedicated to critical police, fire, and other necessary expenditures, including other capital improvement projects; (ii) the only practical means of paying for the Properties and Infrastructure Improvements is to use Agency funding; (iii) without Agency funding for the Property could not be acquired and the Infrastructure Improvements would not be completed, all to the detriment of the Project Area. C. The acquisition of the Property and the future installation of the Infrastructure Improvements are consistent with the Agency's implementation plan adopted pursuant to Health and Safety Code Section 33490 ("Implementation Plan"), in that improving public infrastructure and facilities within the Project Area are goals set forth in the Implementation Plan. 264 Resolution No. 2011- Yessayisn/Fischer Property Purchase and Sale Agreement Adopted: June 7, 2011 Page 3 SECTION 3. The Agency's expenditure for the Properties for future development with the Infrastructure Improvements is necessary to effectuate the purposes of the Redevelopment Plan and is in the best interests of the City of La Quinta. SECTION 4. The Agreements are hereby approved. The City Council hereby consents to the use of Agency funding to acquire the subject Properties. SECTION 5. The City Council directs its City Manager to (i) sign such documents that require the City's signature in order to effectuate the City's acquisition of the Properties, and (ii) take such other and further actions as may be necessary and proper to carry out the terms of the Agreements. SECTION 6. The City Manager is authorized to accept the conveyances of the Properties, and to take such other actions and execute such other documents as may be necessary to implement and affect.this Resolution on behalf of the City. PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta City Council held on this 7th day of June, 2011, by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: DON ADOLPH, Mayor City of La Quinta ATTEST: VERONICA J. MONTECINO, CMC, CITY CLERK City of La Quinta (City Seal) 265 Resolution No. 2011- YessayianlFischer Property Purchase and Sale Agreement Adopted: June 7, 2011 Page 4 APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta 266 ATTACHMENT iliq r T si I 0 } rt^• � I)i� ! }{. lYi,f � t� "a tiQl ! • i•"_•M,1�� F °'rCALLE TAMPICO �" .•. •---ter > •: r.. .:. � �. i t Y 41 - t - <f �s i� A gVENID LU LU R,.+?•�.-:, � 770-1 4 004 �: •I�, "� A�Qj� HP� �� ter, - �.�- Y y ` �'• j •'' •- a • ^'Y b s' .cPl�. . . _ s�N �'N•y ! 0;7y Ci(I{OCMIP • < iA i$SOCIOI ON {y 4 } :._'• » r^t lt4NhVAr 3� i,. tint'-,} i H h` ^h M ^•. 'f.:'! f I court•sppoin(Od teprosentative of the estate, conservatorship, or guardianship Identified by the Superior Court case name as 0.V A3 fI• ca re "Salted, this is an offer Irom 4 y t / Hots u o (•'a,yerT for the purchase of reel v ah"a{ed in: 4096 "I'N ; Cou tyr et OWNER , California, dearibed PARCEL NUMBER: fT10-/z5-9"3 XPropony'y,tagetherwith arty personal property Included in the sale underparagraph2l. 1, The Propertyto sold "AS IS" in its present condition as of the time of acceptance of the offer without warranty as to condition, zoning, permitted use of the Property, or any other matter, unless otherwle agree qq in wrhing, .•.•�,, 2. PURCHASE PRICE: The sum of,1cd0Hy4yDA�VJcSBVBFl14'Ils4 7WO&S-*'Va DDllarsre 2i50D0%�� In cash. Other credit or financing terms: 2. BUYER'S INITIAL DEPOSIT: Buyer has deposited ... 1111 .... V PRO - Via.+ .................. S col ODO• ao PAYABLE M $the reprasematNa Of the Eelale9 the Estate. 0 Escrow Holder, 0 Broker's trust account, arX mmi-*ee by Personal Check (or II check td:)X Cashier's Check, ❑ Cash, or ❑ TO BE HELD UNCASHED until the nest business day SAM acceptance of the offer, er rtenrse 1,1.1, mrnqfgx, s ti., oFfr i tat 'A 4. BUYER'S INCREASE00EPOSIT.Buyershalldepuitwithin_daysfromacceptanceofAeoffer..........bYe _ If, BALANCE OF PURCHASE PRICE to be paid" follows: g7leSoDo. o a & ALLOCATION OF COSTS: Costs shall be paid as follows (check boxes which apply); CLOSING COSTS: A. Buyer, eWr to pay Escrow, lee. on. od-4 crow Haldershanbo. B.❑BuyerXSegartopayOwner'sTBlelnsuranmpofiey:(OCLTAor ALTA•R). Sollox' ch03se T>h ha proWded by company. C. Buyer ❑saner to prey Lenders Tide triaurance policy. a u Buysr•�.Boller to pay county property tmnalm tax or fee. E. a Buyer, g Seller, to pay City pruporty transfer tax or lea F. MkBuyer, X Seller, to pay Homeownms'Association transfer tee at appraAmatetyS . _5p1i,Ya0/ges Tor. ❑ Buyer, YKSeller to pay sub -escrow and recomn yence foes resulting from payoff of existing encumbrances. H. 0 Buyer, Seiler, to pay for drawing and recording of the deed ar other document of conveyance. HOME WARRANTY COSTS: q 1. 1. O Buyer, E3 Sells shall pay the was of a oneyear home Warmly plan, not to exceed S y , to be leauad by . with the following optional coverage: OR 2. ❑ Buyer and Seller elect NOT to obtain this cO"Mi J. 1. Sellerahall pay all related loan castswhich Buyer Is rolpermhmdopa financing regulations, inciudngiunodginaW fee,llrequlred. 2. ❑ Buyer. 0 SiM ener, shall pay for VA furoingjIl oable. 2. ❑ Buyer, 0 Seller shag pay for emurd points, limited lo_ points 4. if, based upon thenders appraisal report, repairwark is required. Sellerahah payfor such workto a maximum amount of . Buyeror Seller may cancel this transaction if Buyer is unwilling or unable to pay for Oasis of repair work PEST CONTROL COSTS: K. $Simctufd pest control report and repair work is m of a condition of tins sale. atmdanil pest control company, covering the main building and ageched StNalbrea and, litmecNeO: uO gesora 0 decks, 0 the (doting other Structures on the Property: lithe Proponyls a unit inacondominlum, planneddMIOpman;or ebopemlW%Ihe Reponshallm"rOnlytheal Interest and sty exdvSIW SO Oros being trans NOT advarcommmi area& ' 1. 0 Buyer, 0 Sener to mmend10 to correct "Active InlesmdonP I'Seetion 1" conditions. 2. ❑ B , to pay for work recommended to correct "Preventative;' "Section 2" conditions, If requested by PROBATIONS: L. 1. Rulpropentituxsand assessments, Interest mnl%Homecimem' Asmciatienteguluclues and mgularaseeaemerfe, premiumeon insurance assumed by Buyec and Payments on bonds end Settlements assumed by Buyer, shall he PAID CURRENT and pleased between Buyer and Seller u of the date at due of escrow, (or 0 1 2. payments on Melio-Rcos and other Special Assessment Distdci bonds and assessmema which are new a gars, and payments off Homeown eW Association Special usuameme Which are nowit hen, shall be PAID CURRENT and prorated between Buy w and Seller (or O 1 s The Pmperly issub)edro maeeeeamentuponahsnge of ownership. This will affect thetstrute be paid. Arysupplamemei tax bids shallbe, paid ore lotfoWs: (1)far penada after CI M Of SSIM w, by Buyer for by final wAuldngparry.it panel an exchange). and (2) for periods prior w peas off meow, by Sell K Tba bills leauad alter rime ofoeaow ohdl bo handled diready between Buyer end BellOr M. Other. Buyer ern . OMICRUSEONLY riMweaWemwra0•W'a•_� RRliKFR'B COPY cue a%•midn e 26a Properly Address:?a181AV@NlbA NB 490-3, L4 OVNA*If M Detect: `4/zo *OJL 5DETERMINATION OF COUNT CONFIRMATION (Check the option below that applies): A. CouttCenflmatlonRequlmd:Thesateiscomingamuponcourtiongrmalion.Thbalbwsforopen.competillaWcktrgaithecwnhwdng. Theminimummthid primshallbow amwntaqualtoMS eccwplod pufchasaPtke, PluaBwlrsrcemofthmamount.plussSoo.Thecoun shall determine any turtherinv mentalsuccaesivewerbiddingamourds. Selfpangrephseendglorta m otcourtconfhmatbnclihesine. banellciarhsmNrsofineestale. It a benefidarymolrobjeotstothe tam atsele,courtwnllrmeeonofthos*2s . eopvagrepru Sand for terms of court confirmation 011hesale. Buyer shell hew three days from Is en of a beneficiary or heir% objection to elect Or withdraw from the sale. It Buyer elect, to withdraw §dfuw4kwmTv-nTdeposh money held, less applicable case. C. Court Confirmation Undetermined: uyor at the timeafacceptanceofthis otter, or as soon asprecitcablethareafter, tfcouRcomtrm coudconfkmetlonls"imd,themlevAgW aedundmpomgraph TA.lfcodmaanarmeaontswro utmd, WHEN COURT CONFIRMATION OFSALEIS REQUIRED: Seller shall me a Petition to confirm the sale of the Propertywith the own. Acourt confirmation hearing is generally hold approximately 30 in e5 days after the Petition is filed. Suffer shall notify Buyer In writing of the court confirmation hearing date. time, and location. Brokerslmngly recommend$ that Buyer personally appear m thecoun confirmation hearing to protect Buyer's position In the event of overbidding. is required, Buyer understands that Seiler is un ono 1 eponodamtanhlnUmpubiishednMice. If the coun approves the side to Buyer, all deposit money hold on behalf of Saller shell be applied toward the purchase price. If the sets Is not confirmed to Buyer due to an overbid. Buyer's deposit money, lase apalwble Posts, shall be returned to Buyer. If the sate Is Confirmed the court, an Order Confirming Sate to Buyer will be issued by the court. Buyer shall pay the balance of the purchase prim within 10 (or 8 FORFEITUREOFTHE FULLOEPOSIT, ORANY AMOUNTTHECOURT MAY DETERMINETOSATISFYANY DEFICIENCY OFSALEPRICE, COSTS. OR OTHER LOSSES BY THE SELLER. filed with the court to confirm the sate when the contingencies cneeaeo Perm new Inner wervou Olremey909 un Ins cwmrguncy penods he" lapsed as Indicated in ma appllcaDla paragraph: (Check bma5 whtoh A. O Buyer's InwNlgetion of Property Condition (pa m S. ❑Review OIAPnsimirary Tm P 11). C. ❑ Fl paragraph 12). to. BUYER'SINV OFPROPERTYCONDInON:E=ptasprevidodlnwdurg,thislsan'ASIS"sal&Buyarbacceptanmofthecmfaon of (ha Property tingencyof this Agreement. Buyer shall have the right a conduct Inspectims, inwsftlgNion; hets,surveys, and other testing for other hazardous materials, Including, but not llmled to, asbestos, teed -based Paint, and radongaa Buyeraccepe full Buyer Is strongly advised to aserclae these rights and to make Bu yses own selection of professionals with epproprlate qualifications to conduct inspections of the entire Property. BUYER IS STRONGLY ADVISED TO INVESTIGATE THE CONDITION AND SUITABILITY OF ALL ASPECTS OF THE PROPERTY AND ALLMATTERSAFFECTING THEVAUIEORDESIRABILITY OFTHEPROPERTY. IF BUYER DOES NOT EXERCISETHESERIGHTS,BUYER IS ACTING AGAINST THE ADVICE OF BROKERS. BUYER UNDERSTANDSTHAT ALTHOUGH CONDITIONS AND DEFECTS ARE OFTEN DIFFICULT TO LOCATE AND DISCOVER, ALL REAL PROPERTY AND IMPROVEMENTS CONTAIN DEFECTS AND CONDITIONS WHICH ARE NOT READILY APPARENT AND WHICH MAY AFFECT THE VALUE OR DESIRABILITY OF THE PROPERTYY, BUYER AND SELLER ARE AWARE THAT BROKERSOO NOT GUARANTEE AND00 NOT ASSUMERESPONSIBlUTY FOR THE CONDITION OF THE PROPERTY. BUYER IS ALSO AWARE BUYER HAS AN AFFIRMATIVE DUTY TO EXERCISE REASONABLE CARE TO PROTECT HIMSELF OR HERSELF, Code §2079.5). BROKERS HAVE NOT AND WILL NOT VERIFY ANY ITEMS, UNLESS OTHERWISE AGREED IN WRITING. Senershell mekeme Property swfiebie tar ail Inspection$. Buyer shall keepthe Property Iree and Near of lions: Indemnity and hold Sallsr harmlessfrom all liability, clalms, demands, damages, and costa: and repairall damages arising from the Inspections. No Inspeofioms maybe made by any governmental building or inning Inspector or government employee without the prior written consent or Sefler, unless required byloceltow "Merrill to Sever, at no cost, upon request of Seder, completecopfe$ of all IMIPecdonreports Obtain edbyBuyerconorming the Property. 11. TITLE; REVIEW OFAPRELIMINANY(TITLE)REPORT.. Title shall be subject toall hens. encumbrances, easaments, covenants, conditions. restrictions, rights, and other matters shown In the Preliminary (title) repon,uu�w unless mherwbo agreed In writing. Seller shelf provide BuyerwnN a Preliminary(000) report Ior the Property. from the dale of acceptance: obtain formal loan approval;.MMM the linandin man evidence of loan approwl. It loan approval has not b ngency has not been removed, or written evidence of loan approval has •+ Minimum overbid to be at least 5 % higher than original bid. Overbidder to match all terms 4 Conditions of original bid. ...\ If a successful overbid is accepted 6 confirmed by the court, then the successful overbidden to reimburse original bidder up to: S2olOp•00 in costs incurred. Proof of monies spent to be given to overbi&er. Guyer and Peen ask d �yter lhu woo. whkh ae2ol 9 NO. OFNCEe$aer&y— Buy"IrIthN 1 I 6NIera MilibI —1 a•H•a•09ranew>pedpm, �. pea )°wai°ov�iu. ,o,saw BROKER'S COPY - RIM Fr$P PI IPf!waQC flF PGaI PQnD9 V IDRMIA PAI:F 9 nG AI 269 Interest subdivision: A. The Property has _Parking aPacW assigned M It B. The current regular Homeowners' Association (HOA) dueslassessments ere C. S❑ellershallrequestwitldn S(or❑_Jdays, andprovidel Wn2do) claims, or liUgalion; copiesof covenants,cinift eat dalonwanlaesolinl 5(or ❑ 0. No warranty is made regarding compliance win any governing document or E. AWarwapsymem impounds,Rany, shall be asslgnodand chargedtoBuyerar payable ❑ monthly or of receipt, any knavri pending So l assessments, of any Items disapproved. unless otherwise agreed In writing. ac ❑ ❑ A ACTIVE REMOVAL' if Buyer's written notice removing the abovecominggei Is not delivered to Seller within the contingency Periods apmifiedin peragrephs lO,11,12, m d $3, Seeerhasthe dBhtto "is transaction. if Se lercancelit deposit money, leas applicable costa will be refunded to Buyer. OR ❑ e, PASSIVE REMOVAL: if Buyer's written not] ovinglhe above Contingencies Is not delivered to Roger within the COMingencyperiods specified In paragraphs 10.11. 12,e uyarshaltconduslvetybedeamedtohow(a)Completedall IMPeottens, Im Ogatimre,roview of applicable tlocumenla an • osures and removed all Contingencies, Including the contingency of obtaining loans II applicable: (b) elected to proceed wi a transaction, and (c) assumed all liability, responemUity, and expense for repatre Or connections other than for items which ae agreedln, ngtompalracooaet G 11Sell mw111ingorunaWeluwnwisnyitemre abydsappmMbyEuyer,Buyer"caneelthiauumalonandhevethadopmh. 15. SELLER E7(EMPTIONB: Seller is exempt lmm providing Buyorwilh the following items which are applicable In manyother M3146011alUlm. Buyer should Conduct all Inspections necessary to obtain the Information covered by merge, Rem: A. Real Evelio TtansferDisclosure Statement: This "Is Is exempt from State Mal murmtransfer disclosure raquiremantsunder California Civil Code §1102.2(b) for "tranefore pursuant to won order" or §11D2.2(d) tor'Trenslere by a Ilduclary In the Coum of the administrator, of a decedent's Gomm. guardianship, conservatorship, or trust" No such disclosure statement will be provided to Buyer by Seller. S. McUo-iooa Ohrtneh This sale is exempt from the obligation at Seller M obtain and deliver to Buyer a notice OI whether the Property is Subject spatial tax pursuant to the Mello -Rom Community cilltfec Act. C. Earthquake Safety:This sale Isemmptfrom the obligation of Seiler to complete and deliver toBuyer a'•HomeormersGuide to Earthquake, Safely" or "Commeroal property Owners Guide to Earthquake Safely" bwklat. 0. SMOUDStec"s): Thiseme is sUreptbam State requirements regarding amakedatoclara ll rahomdbytwalOrdinance, smagedsfecter These may InClutle, but are not limited te: tlluloauree related to the p c amro mna a spec ial flood e_........�...._.._.. ___._. __.__. . id 77. AOEN7"S DUTY TOINSPECT AND INFORM: For aides Wresidential Property comeinin9 onado•tourdxroiBng units, the agent mPrmemirg Seiler and Buyer have aduty to perform a diligent visual inspection or the reaovablyaCcosslbte areas Of tho Property, and toInt" Buyer of any material facts mush d bysuch inspection affecting the value or desirability of the Property. This may be done in a written reportdeted and signed by each agent and delivered to Suyes Agent shall make every effort to do so within the Ume home of Buyer's Investigation of Property Candill0ri period (paragraph 10).. 18. VESTING:THEMANNEROFTAKWICTITLEMAY HAVESERIOUSLEGALANDTAKCONSEOUENCES Buyerintandstoteka fl1m f08owe: to ESCROWINSTRUCfIONSANDCLDSINGPEPoO — yro h oomplarleeoleasollarllccurtconfirmMbn olmasefalaREQUIRED, oscrowaheflcloeewithin 10(or ❑—)daysham EscrewHoMx or Buyers receipt of a Copy of the Court Order Confirming Sale. Seller shall not be obligated te sign escrow Instructions or incur any escrow costs poor to court confimseflon. ..._..._� fighting, phanbirea ardhearing fixlures, flwr coverings, towsion antennas, sea equipment, water soltenem (If owned fireplace equipment, maU000I jp,grae wgmew for use. are Included: controbt attached 23. SELLER'SRIGHT 70 CONTINUE TO MARKET: Seller reserves the right te Continue to market the Property and to accept backup warn. 24, TIME OF ESSENCE; ENTIRE COWTRAC14 CHANGES: Time Is of the essence: All agreements between the parties an Incorporated In this Agromeant which consfaules the entire contract Its terms am Intended by the parses as a final, wmPlate, and exclusive expression of door agreementwah respeotrohasubJoctmawt andmay nmbewnbedittedbyevldenmotanyprimagreementorc t mpwamcu otWagreem m The captions in this Agreement are for convenience of reference only, and are not intended as pan of INS Agreement: T'hieAWo meet may not be extended, amended, modified, offered, w thong" In any respect whe aowm, except in wdtled 8118ned by Buyer and Seller. Buyer and Seller ackn wpyor this alga, which con 30 9 pages. OFFILauea evyw'alnNNs yr SNbrb lnitlW r ' Rr "BrMar01009a—• Cehi— BROKERSOOPY uaaww n �.O nrn CAP ononwaee nsaosr ooneeeTv v000_ra canes ne ax,e L Property Address: Dated: ,1g_ 25. OTHER TERMS: The other news Incorporated Into this Agreement are as fdllows: Seller will not provide a 26. AGENCY CONFIRMATION: The following agency relationships are hereby confirmed for this trensadlon: or Acne agreement PrudentialRealty, Clarence Yoshikane Listing Agent Pdl California Rlt Y Is the agent of (check one): - (Print Firm Name) Kl the Seller exdustvely; or ❑ both the Buyerandr , Seller. Seeing Agent: A gnOYYt'f4 J 44W A6fOV (Bnots OuUsftAgarn)Htheagemd(chwkm): Print Firm Noma) ' 9the Buyer esch wary: or ❑ the Seller exduslvely; or ❑ both the Buyer and Soler. Real Estate Brokers ere not parties to the purchase and sets Agreement between Buyer and Seller, OF THE PROPERTY CONTAINS 1.4 RESIDRITIALDWELLINGUNT S, BUYERANDSELLERMUBTALSOBEGNEN ONEOR MOREDISCLOSURESREGARDINGREALESTATE AGENCY RELATIONSHIPS (C.A.R. Form AD•14).) 27. CONTRACT PROVISIONSBMDING ONBUYERS: IfmisolferismWebyMorothanonepemon, h3proelsloneshWitind and lnumlotnobonem of each and all of the undersigned Buyers. 26. OFFER: This is an offer W purchase the Property Unfqss ampmnea is pool by lk entl�a eignotl copy dethrered In person, by mall, or facsimna, and personally received by Buyer or by L.4 LP014WO PbLh j lI6A Li`+V , who is aumodnd m resehre if by , Ill_, at _ AM/PM, me oaer anew ba deemed revolt and me depc�lt shall be mWMsd.Suyer and Seller acknowledgethm Brokers we not parties to the purchase and sele Agreement. Buyer has read and acknowledges receipt ofaeopy clNo offer and agresslothe obweconfirmatio 0 gency relationships. Ifthls offeris acoapled and Buyersubsequemlydetauita, Buyermay berespo bfef FoymemdBrokers'opm�n.ThisAgreemema darryeuppbm ra,addendum.ormodSlcetlan,IndudugonyptxUOM fir Ifs. be signed in two r rports, all of which afraid constitute one and the soma writing. /7sDN.4.{ /. 6Ls/VC(�1fs'E ACCEPTANCE BY REPRESENTATIVE - The undersigned, repmentattw of accepts (❑ subiecitofheeawhedeoumerONer)thetomgoingbid(Doer)byBuyor(s)espumheaerdalltherhom,Mle,imerem.andestdeinth*NOIWoperty being sold on the above terms and conditions. Comeneem shall be paid to Brokers w ilescdbed herein, or In the event deouitcongrmetlon of rhaeola as unmua thamurk Theundarelonad tuMaraeknowledoaereeelddaeheckasadeoositin the anountdB— . By '1:7Trvvv, By Chapt Trustee Reprosatnagve(s) of ACKNOWLEDGMENT OF RECEIPT Rooster of signed acceptance on (date) at __ AMIPM, by Buyer, or Suyerb Designated RopresenisWo, is Acknowledged. pnmds) BROKER ACCEPTANCE; BOOKER COMMISSIONS The Iislig Broker is Prudential California Realty , Ohio name), and is represented by arence (asking.The selling Broker Is 111 !i C 1' . (firm name), and isrepresemod by '- (ag81W Thetdel reeledatabrokoragecomMasion ls_%dmasalepdce,or4 ,andurtIMOR MMMagood,shegbedlukled equally by Brokers referenced above. It court confirmation of the sale to requital. the court will determine me commission amount. Commissions awarded vary from county to county. CommlYalons are payable by Seller only it the sale classes. Geller a not liable for a commission to any agent or broker who is directly or Indirectly a purchaser of the property, or has an interest In the puchaser. COMMISSION IN EVENT OF AN OVERBID BY ANOTHER BROKER: In the event court confirmation of me sake is required, the criglnal selling Broker Identified above agrees to waive Oil Commission rights in the a successful overbid In court by a different buyer represented by another broker Original Selling Agent's Aeknowtatlgmon) Listing Agent's Atduwwludgment(_ ) Listing Broker AcceplanCa: Data Selling Broker Acceptance: Data `s N Firm .Prudential California Realty FI L)10r .& aiAr.S kNV±`L� ey Clarence YosUkape .(agentgy ,(agent) (949) 1 OFfine Uaa ONLY 1tM M Y wYYu br w N b MN,w YYe M�q�.'rM aN Y M Mn Y MNYMYtlYO/rY W Y r aBYIaT. fliNaNW to aNtFIX mN1M Y�MYn/,YW.+,wWwNaWweNYN /� u�YeNY.Y6e laYM Nwis PagEl e 4 of�Paaaa. PO4P,er OW Orramm'r '/, SROIER'SCOPY Yam ^ L min FOR PIIRCHARB OF REAL PROPERTY (PBP.1 A PAGE 4 OF 41 ADDENDUM TO PURCHASE AGREEMENT This Addendum to Purchase Agreement (hereinafter called "Agreement") is entered into on this 20th day of March, 2011, by and between the City of La Quints, a California municipal comoration and charter ciN, (hereinafter "Buyer") and Thomas H. Casey, as Chapter 7 Trustee for the estate of. Michael Anthony Fischer, Sr. Case No 8:10:bk:23883-ES, (hereinafter called "Seller" or "Trustee") pursuant to the terms and conditions as follows: RECITALS WHEREAS: The Debtor in the bankruptcy proceeding entitled Michael Anthony Fischer, Sr. Case No 8:10:bk:23883-ES, Is the owner of record of certain real property commonly known as: 78181 Avenue La Fonda, La Quints, California 92253: AP # 770-125-003, (Hereinafter the "Subject Property"). WHEREAS: On September 30, 2010, the Debtor filed a voluntary petition seeking relief pursuant to Chapter 7 of Title 11, of the United States Bankruptcy Code. WHEREAS: As a result of the filing of the Chapter 7 petition, Thomas H. Casey, was appointed as the Trustee to administer the assets of the bankruptcy estate, one of which was the Debtor's Interest in the Subject Property. WHEREAS: Pursuant to 11 U.S.C. Section 363, Thomas H. Casey, Chapter 7 Trustee and/or his attorneys will seek a Court Order authorizing the sale of the Subject Property. NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS: CONDITIONS OF SALE 1. Court Approval: Seller agrees to proceed in good faith to obtain Court approval for the sale of property located at 78181 Avenue Le Fonda. La Quints, California 92253: AP # 770-125-003contemplated herein, within a reasonable time period after said offer. 2. Brokers Compensation: Brokers and Agents are entitled to compensation only upon recordation of a deed or other evidence of title. Tage -5 LI 3. No Assignment, This agreement is between Buyer and Seller. Buyer shall have no right to assign the Escrow, this agreement, or transfer the Subject Property concurrent with dosing without consent of Seller. 4. Title Insurance: The title Insurance policy shall be subject only to liens, encumbrances, clouds and other matters as may appear on the prellminarytitle report, that are not to be removed at the close of Escrow, and have not been objected to by Buyer. Should Seller be unwilling or unable to eliminate those title matters disapproved by Buyer as above, the Seller may terminate this Agreement or, should Sellerfail to delivergood and marketable title as provided above, Seller or Buyer may terminate this Agreement In either case, the Buyer's deposit shall be returned to Buyer, and Buyer shall have no recourse against Seller, Thomas H. Casey, as Bankruptcy Trustee, individually, or the Law Office of Thomas H. Casey Inc., the bankruptcy estate of: Michael Anthony Fischer, Sr. Case No 8:70:bk:23883-ES, or the Debtor, or any real estate agent, broker or attorney Involved In this transaction. 5. Limitations of Sale: The parties acknowledge that the operation of the law has placed the Bankruptcy Trustee in a unique role as the Seller of the Subject Property, which Is the subject of this agreement. Due to the nature of the Trustee's role in administering the bankruptcy estate, there are limitations as to the extent, type and character of the agreement under which the Trustee can convey the Subject Property. The Trustee proposes to sell this asset subject to certain limitations. The parties hereby acknowledge that they understand the terms under which this Subject Property is to be conveyed may vary substantially from the normal customs and trade within the real estate Industry. Except where expressly mandated by operation of law, the Buyer consents to any such modifications and amendments. 6. Purchase without Warranties: Buyers acknowledge that they are purchasing the Subject Property from the Seller "AS IS" without warranties of any kind, expressed or Implied, being given bythe Seller, concerning the condition of the property orthe quality of the title thereto, or any other matters relating to the Property. Buyer represents and warrants that they are purchasing the Subject Property as a result of their own Investigations and are not buying the Subject Property pursuant to any representation made by any Broker, Agent, Accountant, Attorney or Employee acting at the direction or on the behalf of the Seller. 'fate 6 2U 7. Trustee's l.iabiltty: Buyer acknowledges that the Trustee is acting In his official capacity only. No personal liability shall be sought or enforced against the Trustee with regard to this Agreement, including the Addendum, the assets, the sale of the Subject Property, or the physical condition of the Subject Property. In the event that the Trustee fails or refuses to complete the transaction for any reason, then the limit of the Trustee's Ilability Is only to return any money paid to the Trustee by the Buyer, without deduction. Pdorto and afterthe closing of escrow, the United States Bankruptcy Court shall have and retain the sole and exclusive jurisdiction over the Assets of this transaction and Agreement; and all disputes arising before and after closing shall be resolved in said Court 8. Any and all disputes, which Involve In any manner the Bankruptcy Estate or Thomas H. Casey, arising from this Purchase Contract, this Addendum or relating in any manner to the Subject Property, shall be resolved only in the United States Bankruptcy Court, Central District of California, Santa Ana Division. 9. Seller will not provide a pest control report nor pay for any corrective work; nor shall Buyer receive any credit for corrective work. 10. Buyer is aware that this offer is contingent upon Chapter 7 Bankruptcy Trustee approval, Bankruptcy Court confirmation & overbid procedures. 11. Buyer has NO CONTINGENCIES In this transaction; Including but not limited to the contingency of obtaining financing & appraisal, inspections, etc. Except as indicated In 11. A. below Deposit is refundable only if Bankruptcy Court accepts overbid or if court does not approve this sale or as per items 4 and 12 of this addendum. 274 11. This transaction and Agreement Is subject to the final approval of the Le Quints Redevelopment Agency Board of Directors at their next available meeting. Should this transaction not be approved at such meeting, then upon such notice by Buyer this Agreement and the Escrow shall be automatically canceled, Buyer shall receive a refund of their deposit less any charges Incurred on their behalf by the Title or Escrow Company, and neither party shall have any further liability to the other In connection with this Agreement and the Escrow. 12. The Seller shall deliver to the Buyer Tenant Estoppel Certificates completed by Seller or seller's agent, and signed by tenants, acknowledging: (1) that tenants' rental agreements are unmodified and in full force and effect (or of modified, stating all such modifications); (ii) that no lessor defaults exist; (111) Stating the amount of prepaid rent or security deposit 13. If Buyer falls to complete this purchase because of Buyer's default, Seller shall retain, as Liquidated Damages, the deposit actually paid. Release of funds will require mutual, signed release Instructions from both Buyer and Seller, judicial decision, or arbitration award. 14. Any and all personal items belonging to the tenants are NOT Included as part of the sale. 2l5 15.Sale is contingent upon Bankruptcy Trustee securing approval of this sale by all secured creditors. 16.In addition to the $10,000 deposit, Buyer will deposit the additional sum of 0.00 into escrow on or before the close of escrow. 1, the Buyer herein, have reviewed the foregoing Agreement and understand the terms and conditions set forth herein, and further agree to purchase the Subject Property pursuant to said terms and conditions. Dated: 5/20/2011 See Attached Signature Page, Buyer Thomas P. Genovese, City Manager 1, Seiler, agree to sell the Subject Property pure is t to the terms and conditions set forth herein. Dated: % al a 5� -1 Q SO AGREED. Dated: Dated: 5-12,417,01, Thomas H. Casey, in his sole oacity as Bankruptcy Trustee for the Kdate of: Michael Anthony Fischer, Sr. Case No 8:10:bk:23863-ES, and not in his individual capacity or as a member of the Law Office of Thomas H. Casey, Inc. Clarence Yoshikane, Trustee's Agent Prudential California Realty, 2405 McCabe Way, Suite 100 Irvine, CA 92614 714.606.5765, Direct Line Clarence.Yoshikane(c-D!Nmall.com Bruce Cath rt, Buy4es Agent La EQuinta Palms Realty, 51001 Eisenhower Dr., La Quinta, CA. 92253 (760) 564-4104laquinatpaims@dc.rr.com -page 9 276 N Property Address: 181 Av«tr(k ,(,a -,64 4, ZA A"r , Of 9iz6-S IN WITNESS WHEREOF, Buyer and Seller each hereby represents that it has read this Agreement, understands it, and hereby executes this Agreement to be effective as of the day and year first written above. ATTEST: City APPROVED AS TO FORM: RUTAN & TUCKER, LLP City Attorney BUYER: CITY OF LA QUINTA, a California municipal corporation and charter city Thomas P. Genovese, City Manager [end of signatures] 2671011610A006 1159891.01 M3/07111- 277 Property Address: rA r IL4 aq Zd 70i?Q 4� LA IN WITNESS WHEREOF, Buyer and Seller each hereby rep Agreement, understands it, and hereby executes this Agreement to be year first written above. SELLER: APPROVED AS TO FORM: RUTAN & TUCKER, LLP _ _Mt BUYER CITY OF LA QUINTA, corporation and charter c Thomas P, [end off] wrrocs�caaoa� 115MI.01 &mini 0,1f 9Xz s s that it has read this ve as of the day and California municipal City Manager » 278 4'� CALIF0&NIA ® ASSOCIATION I` OF REALTORS® 1. OFFER. A. THIS IS AN OFFER FROM ❑ Individual(s), ❑ A Corpomtlon, B. THE REAL PROPERTY TO BE At C. THE PURCHASE PRICE offered is ATTACHWE 3 RESIDENTIAL INCOME PROPERTY PURCHASEI AGREEMENT AND JOINT ESCROW INSTRUCTIONS 121 (CAR Form RIPA, Revised 4110) Date: I+ftv 26, 2011 (Buyer). Is described as _ 76+ 3 Mal. 9 _ a Ventura , Assessors Parcel No. 770-1124-004 , situated In , County of Ri jai e , California, ("Property'). D. CLOSE OF ESCROW shall occur on (Dollars $402, ado. 00 ), 2. AGENCY: (daft) (or ® 43 Days After Acceptance). A. POTENTIALLY COMPETING BUYERS AND SELLERS: Buyer and Seller each acknowledge receipt of a disclosure of the possibility of multiple representation by the Broker representing that principal. This disclosure may be pad of a listing agreement, buyer representational agreement or separate document (CAR. Form DA). Buyer understands that Broker representing Buyer may also represent other poentlal buyers, who may consider, make offers on or ultimately acquire the Property. Seiler understands that Broker representing Seller may also represent other sellers with competing properties of Interest to this Buyer. B. CONFORMATION: The following agency relationships are hereby confirmed for this transaction: Listing Agent r .+n a . r,.. R . r *,,. (Print Finn Name) Is the agent of (check one): the Seller exciuslvely, or ® both the Buyer and Sailer. inc g Agent 14 ggaga Palma Real (Print Firm Name) (If not the same as the Listing Agent) is agent(check one : e Buyer usrve , or r excluer—ve7y-75—FO both the Buyer and Seller. Real Estate Brokers are not parties to the Agreement between Buyer and Seller. C. DISCLOSURE: If the Property contains 1-4 residential dwelling units, Buyer and Seller each acknowledge prior receipt of CAR. Form AD "Disclosure Regarding Real Estate Agency Relationships." 3. FINANCE TERMS: Buyer represents that funds will be good when deposited with Escrow Holder. A. INITIAL DEPOSIT: Deposit shall be In the amount of ................................................... $ 51000.00 1 Buyer shall deliver deposit directly to Escrow Holder by personal check, 0 electronic funds transfer, Other within 3 business days after acceptance (or ❑ Other OR (2) (I checked) p Buyer has given the deposit by personal check (or ❑ ) to the agent submitting the offer (or to ❑ 37. m e pays to The deposit shall be held uncashed until Acceptance and then deposited with Escrow Holder (or ❑ mo Brokers trust account) within 3 business days after Acceptance (or ❑ Other ), S. INCREASED DEPOSIT: Buyer shall deposit with Escrow Holder an Increased deposit in the amount of, .. $ within Days After Acceptance, or - If a liquidated damages clause is Incorporated nto this reemen Buyer and Seller shall sign a separate liquidated damages clause (C.A.R. Form RID) for any Increased deposit at the time it is deposited. C. LOAN(S): (1) FIRST LOAN in the amount of.................................................................$ This loan will be conventional financing or, it checked, 11 FHA, ❑ VA ❑ Seller (CAR. Form SFA), I assumed (CAR. Form PAA), ❑ subject to financing, ❑ Other This ban shall he at a fixed rate not to exceed - % or, ❑ an adjustable an ens mural rate not to exceed %. Regardless of the type of loan, Buyer shad pay points no: to exceed % o tit—f}T mmount. (2) ❑ SECOND LOAN in the amount of ............... ...................... . This loan will be conventional financing or, 6 checked, [3 Seller (CAR. Forth SFA), [3 assumed (CAR. $ Forth PAA),❑ subject to financing, ❑ Other . This loan shall beats a fixed rate not to exceed % or, ❑ an adjustable rate omit an n l rate not to exceed %. Regardia-s-9-71re 55FR loan, Buyer shall pay points not to exceed % OiUrie oT n amount. (3) FHANA: For any FHA or VA loan specified above, Buyer has 17 (or[]_) Days After Acceptance to Deliver to Seller written notice (CAP. Form FVA) of any lender -required repairs or costs that Buyer requests Seller to pay for or repair. Seller has no obligation to pay for repairs or satisfy lender requirements unless otherwise agreed In writing. 0. ADDITIONAL FINANCING TERMS: E. BALANCE OF PURCHASE PRICE OR DOWN PAYMENT in the amount of ................................. $ 397, 500.00 to be deposited with Escrow Holder within sufficient time to close escrow. F. PURCHASE PRICE (TOTAL): .................................................................... $ 402, 500. 00 G. VERIFICATION OF DOWN PAYMENT AND CLOSING COSTS: Buyer (or Buyers lender or ban broker pursuant to 3H(t)) shall, within 7 (or ❑ ) Days After Acceptance, Deliver to Seller written verification of Buyers down payment and dosing coats. (If checked, ❑ verification attach d.) Buyers Initials O (. ) Sellers Initials) The copyright laws of theUnitedand States ((TTiIatle 17 U.S. Code) forbid the or an other means, Inch of Otis form, cr any portion the ad fo Dh�N' machine or any other means, indWingg mile of MTpuTW�Ot�Red tINC-A. CopyriRIGHTS E ERVE . 10, CALIFORNIAASSOCIATION OF RFALTORS®, INC. ALL RIGHTS RESERVED. RIPA REVISED 4110 (PAGE 1 OF 10) ;;8Nad b DOM RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 1 OF 10) Broker. La Quints Palms Real Estate Co 61-001 Eisenhower Drive La Quints , CA 9=63 1 » 279 78153 Male St. Property Address: as QRLigta. rs_ 92253. Date: Dfav 26. 2011 H. LOAN TERMS: (1) LOAN APPLICATIONS: Within 7 (or❑ ) Days After Acceptance, Buyer shall Deliver to Seiler a kilter from lender or ban broker stating that, based on a review of Buyer's written application and credit report, Buyer is prequalified or preapproved for any NEW loan specified In 3C above. (If checked, ❑ letter attached.) (2) LOAN CONTINGENCY: Buyer shall act diligently and In good faith to obtain the designated loan(s). Obtaining the loan(s) specified above Is a contingency of this Agreement unless otherwise agreed in writing. Buyers contractual obligations to obtain and provide deposit balance of down payment and dosing costs are not contingencies of this Agreement. (3) LOAN CONTINGENCY REMOVAL: () Within 17 (or ❑ ) Days After Acceptance, Buyer shall, as specified In paragraph 18, in writing remove the ban contingency or cancel this Agreement; OR (11) (If checked) ❑ the loan contingency shall remain In effect until the designated loans are funded. (4) M NO LOAN CONTINGENCY (If checked): Obtaining any ban specified above Is NOT a contingency of this Agreement If Buyer does not obtain the ban and as a result Buyer does not purchase the Property, Seller may be entitled to Buyers deposit or other legal remedies. (6) ASSUMED OR SUBJECT TO FINANCING: Seller represents that Seller is not delinquent on any payments due on any loans. If Property Is acquired subject to an existing ban, Buyer and Seller are advised to oonsuh with legal counsel regarding the ability of an existing lender to call the loan due, and the consequences thereof. 1. APPRAISAL CONTINGENCY AND REMOVAL: This Agreement Ia (or, If checked, ❑ is NOT) contingent upon a written appraisal of the Property by a licensed or certified appraiser at no less than the specified purchase price. If there is a loan contingency, Buyers removal of the loan contingency shall be deemed removal of this appraisal contingency (or, ❑ if checked, Buyer shall, as specified in paragraph 1813(3), in writing remove the appraisal contingency or cancel this Agreement within 17 (or ) Days After Acceptance). If there is no ban contingency, Buyer shall, as specified in paragraph 18B(3), in writing remove the appraisal contingency or cancel this Agreement within 17 (or ❑ ) Days After Acceptance. J. M ALL CASH OFFER (If checked): Buyer shall, within 7 (or❑ ) Days After Acceptance, Deliver to Seller written verification of sufficient funds to dose this transaction. (H checked, ❑ verification attached.) K BUYER STATED FINANCING: Seiler has relied on Buyers representation of the type of financing specified (including but not limited to, as applicable, amount of down payment, contingent or non contingent loan, or all cash). If Buyer seeks alternate financing, (1) Seller has no obligation to cooperate with Buyers efforts to obtain such financing, and (i) Buyer shall also pursue the financing method specified in this Agreement. Buyers failure to secure alternate financing does not excuse Buyer from the obligation to purchase the Property and dose escrow as specified in this Agreement. 4. ALLOCATION OF COSTS (If chedwd): Unless otherwise spedfied in writing, this paragraph only determines who Is to pay for the inspection, test or service ('Report') mentioned; it does not determine who Is to pay for any work recommended or identified in the Report. A. INSPECTIONS AND REPORTS: (1) ❑ Buyer ❑ Seller shall pay for an inspection and report for wood destroying pests and organisms ('Wood Pest Report") prepared by a registered structural pest control company. (2) ❑ Buyer ❑ Seller shall pay to have septic or private sewage disposal systems inspected (3) ❑ Buyer ❑ Seller shall pay to have domestiowells tested for water potability and productivity (4) ❑ Buyer ❑ Seller shall pay for a natural hazard zone disclosure report prepared by (5) ❑ Buyer ❑ Seller shall pay for the following inspection or report (6) ❑ Buyer ❑ Seller shall pay for the following Inspection or report B. GOVERNMENT REQUIREMENTS AND RETROFIT: (1) ❑ Buyer ® Seller shall pay for smoke detector installation and/orwater heater bracing, if required by Law. Prior to Close Of Escrow, Seller shad provide Buyer written statements of compliance In accordance with state and local taw, unless exempt (2) ❑ Buyer ❑ Seller shall pay the cost of compliance with any other minimum mandatory government retrofit standards, Inspections and reports If required as a condition of closing escrow under any Law. (3) ❑ Buyer ❑ Seller shall pay for Installation of approved fire extinguisfer(s), sprinkler(s), and hose(s), if required by Law, which shall be Installed prior to Close Of Escrow. Prior to Close Of Escrow, Seller shall provide Buyer a writtenstatement of compliance, it required by Law. (4) ❑ Buyer ❑ Seller shall pay for Installation of drain cover and anti -entrapment device or system for any pool or spa meeting the minimum requirements permitted by the U.S.Consumer Products and Safety Commission. C. ESCROW AND TITLE: (1) M Buyer M Seller shall pay escrow fee Neigh to my tbatr own f"a Escrow Holder shall be (2) ❑ Buyer M Seller shall pay for owners title I de policy specified in paragraph 18 Owners title policy to be Issued by (Buyer shall pay for any title insurance policy suring Buyers lender, unless otherwise agreed In writing.) D. OTHER COSTS: (1) ❑ Buyer M Seller shall pay County transfer tax or fee (2) ❑ Buyer ❑ Seller shall pay city transfer tax or fee (3) ❑ Buyer ❑ Seller shall pay Homeowners Association C HONtransfer fee (4) ❑ Buyer ❑ Seller shall pay HOA document preparation fees (5) ❑ Buyer ❑ Seller shall pay the cost, not to exceed $ , of a one-year home warranty plan, issued by with the following optional coverages: ❑ Air Conditioner ❑ Pool/Spa ❑ Cade and Permit upgrade ❑ Other. Buyer is informed that home warranty plans have many optional coverages in addition to those listed above. Buyer is advised to Investigate these coverages to determine thosethat maybe suitable for Buyer. (8) ❑Be13r shad pay for M❑Br shag pay for Buyers Initials ( ( ) Sellers Inftlalsal ) CopydghtC,1998 A ASSOCIATION OF RFALTORS9. INC. Reviewed by RIPA REVISED 4H0 (PAGE 2 OF 10) RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 2 OF 10) Mike Fischer 4 pink 2U0 78153 Mats tit. Property Address: Es Omuta. ca_ 92233_ Date: Mav 26. 2d11 S. CLOSING AND POSSESSION: A. Buyer intends (or ® does not Intend) to occupy any unit in the Property as Buyers primary residence. S. Seller -occupied or vacant property: Possession shall be delivered to Buyer at 5 PM or (0 j3 AM )] PM) on the date of Close Of Escrow; j] on ; or j] no later than Days After Close Of Escrow. if transfer of title and possession do not occur at the same time, Buyer and Seller are advised to: (1) enter Into a written occupancy agreement (CA.R Form PAA, paragraph 2); and (11) consult with thew insurance and legal advisors. C. Tenant ocoupled units: Possession and occupancy, subject to the rights of tenants under existing leases, shall be delivered to Buyer on Close Of Escrow. D. At Close Of Escrow, (1) Seller assigns to Buyer any assignable warranty rights for items included In the sale, and pi► Seller shall Deliver to Buyer available Copies of warranties. Brokers cannot and will not determine the assignablity of arty warranties. E. At Close Of Escrow, unless otherwise agreed in writing, Seller shall provide keys and/or means to operate all locks, mailboxes, security systems, alarms and garage door openers. N the Property Is a condominium or located In a common Interest subdivision, Buyer may be required to pay a deposit to the Homeowners` Association ("HOA") to obtain keys to accessible HOA facilities. 6. SECURITY DEPOSITS: Security deposits, if any, to the extent they have not been applied by Seller in accordance with any rental agreement and current Law, shall be transferred to Buyer on Close Of Escrow. Seller shall notify each tenant, in compliance with the California Civil Code. 7. STATUTORY DISCLOSURES (INCLUDING LEAD -BASED PAINT HAZARD DISCLOSURES) AND CANCELLATION RIGHTS: A LEAD -BASED PAINT HAZARD DISCLOSURES: - (1) Seller shall, within the time specified in paragraph 18, deliver to Buyer, 0 required by Law, Federal Lead43ased Paint Disclosures and pamphlet ('Lead Dledosums7). N the Lead Disclosures are delivered to Buyer after the offer Is Signed, Buyer shall have the right to cancel this Agreement within 3 Days Alter Delivery in person, or S Days After Delivery by deposit in the mall, by giving written notice of cancellation to Seller or Sellers agent. (Lead Disclosures sent by mail must be sent certified mail or better.) (2) Buyer shall, within the time specified In paragraph 18, return a Signed Copy of the Lead Disclosure to Seiler. B. NATURAL AND ENVIRONMENTAL HAZARDS: Within the time specified in paragraph 18. Seller shall, B required by Law: (1) deliver to Buyer earthquake guides (and questionnaire) and environmental hazards booklet; and (11) even If exempt from the obligation to provide a NHD, disclose 0 the Property Is located in a Special Flood Hazard Area; Potential Flooding (Inundation) Area; Very High Fire Hazard Zone; State Fire Responsibility Area; Earthquake Fault Zone; Seismic Hazard Zone; and (ill) disclose any other zone as required by Law and provide any other information required for those zones. C. WITHHOLDING TAXES: Within the time specified in paragraph ISk to avoid required withholding, Seller shall Deliver to Buyer or qualified substitute, an affidavit suftlolent to comply with federal (FIRPTA) and California withholding Law, (CA.R. Forth AS or OS). D. MEGAN'S LAW DATABASE DISCLOSURE: Notice: Pursuant to Section 290.46 of the Penal Code, information about specified registered sex offenders is made available to the public via an Internet Web site maintained by the Department of Justice at www.mogenslaw.ce.gov. Depending on an offenders criminal history, this Information will Include either the address at which the offender resides or the community of residence and ZIP Code in which he or she resides. (Neither Seller nor Brokers are required to check this websits. If Buyer wants further Information, Broker recommends that Buyer obtain Information from this website during Buyers inspection contingency period. Brokers do not have expertise In this area.) S. RESIDENTIAL 1 • 4 PROPERTIES: STATUTORY DISCLOSURES (INCLUDING LEAD43ASED PAINT HAZARD DISCLOSURES) AND CANCELLATION RIGHTS: A. (1) Seller shall, within the time specified in paragraph 18A, deliver to Buyer, if required by Law. (1) Federal Laad-Based Paint Disclosures (CAR. Forth FLD) and pamphlet ("Lead Disclosures"); and ill) disclosures or notices required by sections 1102 at. seq. and 1103 at seq. of the Civil Code ("Statutory Disclosures"). Statutory Disclosures include, but are not limited to, a Real Estate Transfer Disclosure Statement CTDSJ. Natural Hazard Disclosure Statement ("NHD"), notice of actual knowledge of release of Illegal controlled substance, notice of special tax and/or assessments (or, 0 allowed, substantially equivalent notice regarding the Matlo-Roos Community Facilities Ad and Improvement Bond Ad of 1915) arid, 6 Seller has actual knowledge, of industrial use and military ordnance location (CAR Forth SPO or SSD). (2) Buyer shall, within the time specified In paragraph 186(1), return Signed Copies of the Statutory and Lead Disclosures to Seller. (3) If any disclosure or notice specified In WI), or subsequent or amended disclosure or notice is Delivered to Buyer after the offer is Signed, Buyer shall have the dght to cancel this Agreement within 3 Days After Delivery In person, or 5 Days After Delivery by deposit In the mall, by giving written notice of cancellation to Seller or Sellers agent 9. SELLER DOCUMENTATION AND ADDITIONAL DISCLOSURE: Within the time specified in paragraph 18, Seller shall disclose, make available or Deliver, as applicable, to Buyer the following Information: A RENTALISERVICE AGREEMENTS: Seller shall make available to Buyer for inspection and review: (1) all current leases, rental agreements, service contracts, and other agreements pertaining to the operation of the Property; (11) a rental statement including names of tenants, rental rates, period of rental, date of last rent increase, security deposits, rental concessions, rebates or other benefits, 0 any, and a list of delinquent rents and their duration. Seller represents that no tenant is entitled to any rebate, concession, or other benefit, except as set forth in these documents. Seller represents that the documents to be furnished are two maintained in the ordinary and normal course of business. B. INCOME AND EXPENSE STATEMENTS: Seller shall make available to Buyer the books and records for the Property, Including a statement of Income and expense for the 12 months preceding Acceptance. Seller represents that the books and records are those maintained In the ordinary and normal course of business, and used by Seiler In the computation of federal and state income tax returns. C. ® TENANT ESTOPPEL CERTIFICATES: (If checked) Seller shall Deaver to Buyer tenant estoppel certificates (CA.R Form TEC) completed by Seller or Sellers agent, and signed by tenants, acknowledging: (1) that tenants' rental or lease agreements are unmodified and in full force and effect (or lt modified, stating all such modifications); (11) that no lessor defaults exist; and (111) stating the amount of any prepaid rent or security deposit D. SURVEY, PLANS, AND ENGINEERING DOCUMENTS: Seller shall, at no cost to Buyer, Deliver to Buyer Copies of surveys, plans, specifications, and engineering documents, If any, prepared on Sellers behalf or In Sellers possession. E. PERMITS: If In Sellers possession, Seller shall Deliver to Buyer Copies of all permits and approvals concerning the Property, obtained from any governmental eelh� Intl Ing, but not limited to, certificates of occupancy, conditional use permits, development plans, and licenses and permits pertainingto��tttttthhhhhhjjpppppp//g�'�re0on of the Property. �7 Buyers Initials ( Sellers Initials (vl ) (—A227 CopyrightO 1998.2010, CC CAAAAAAUFORNIAASSOCUITION OF REALTORS9. INC. 121 RIPA REVISED 4f10 (PAGE 3 OF 10) Reviewed Die wura yy RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 3 OF 10) Mike Fisd= 4 plex 281 78153 Main St Property Address: d 2uinta. cA.. 92233_ Date: Mao 26. 2011 F. STRUCTURAL MODIFICATIONS: Seller shag disclose to Buyer in writing any known structural additions or alterations to, or the Installation, alteration, repair or replacement of, significant components of the structures) upon the Property. 0. SELLER REPRESENTATION: Seller represents that Seller has no actual knowledge: (1) of any current pending lawsult(s), Imrestigation(s), inquiry(iea), aettlon(s), or other proceading(s) affecting the Property or the right to use and occupy it; (11) of any unsatisfied machanics or materialman lien(s) affacling the Property, and (Ail) that any tenant of the Property is the subject of a bankruptcy. If Seller receives any such notice prior to Close Of Escrow, Seger shall immediately notify Buyer. H. GOVERNMENTAL COMPLIANCE: (1) Seller shall disclose to Buyer any improvements, additions, alterations, or repairs to the Property made by Seller, or known to Seller to have been made, without required governmental perks, final inspections, and approvals. (2) Seller shag disclose to Buyer if Seller has actual knowledge of any notice of violations of Law filed or Issued against the Property. 10. SUBSEQUENT DISCLOSURES: In the event Seller, prior to Close Of Escrow, becomes aware of adverse conditions materially affee ling the Property, or any material Inaccuracy in disclosures, Information or representations previously provided to Buyer, Seller shag promptly Deliver a subsequent or amended disclosure or notice, in writing, covering those Name. However, a subsequent or amended disclosure shall not be required for condbttonv and material Inaccuracies of which Buyer Is otherwise aware, or which are disclosed In reports provided to or obtained by Buyer or ordered and paid for by Buyer. 11. CHANGES DURING ESCROW: A. Prior to Close OF Escrow, Salter may engage in the following acts, ("Proposed Changes'), subject to Buyers rights in paragraph 18B. (p rent or lease any vacant unit or other part of the premises; (11) after, modify or extend any existing rental or lease agreement; (111) enter Into, otter, modify or extend any service oontract(s); or (Iv) change the status of the condition of the Property. B. At least 7 (or ) Days Prior tD any Preposed Changes, Seller shall Delver written notice to Buyer of such Proposed Changes. 12. CONDOMINIUMIPLANNED UNIT DEVELOPMENT DISCLOSURES: A. SELLER HAS: 7 (or ) Days After Acceptance to disclose to Buyer whether the Property Is a condominium, or Is located in a planned development or other common interest subdivision (CAP- For SPQ or SSD). S. If Property is a condominium or is located In a planned development or other common interest subdivision, Seller had (or 0 ) Days After Acceptance to request from the HQA (CAR For HOA): (p Copies of any documents required by Law; (11) disclosure of any pending or anticipated claim or litigation by or against the HOA; (III) a statement containing the location and number of designated parking and storage spaces; (iv) Copies of the most recant 12 months of HOA minutes for regular and special meetings; and (v) the names and contact Information of all HONs governing the Property (collectively, 'Cl Disclosures'). Seller shall Itemize and deliver to Buyer all CI Disclosures received from the HOA and any CI Disclosures In Sellers possession. Buyers approval of Cl Disclosures is a contingency of this Agreement as speoNied In paragraph 188(3). 13. ITEMS INCLUDED AND EXCLUDED: A. NOTE TO BUYER AND SELLER: Items listed as included or excluded in the MLS, flyers or marketing materials are not included in the purchase price or excluded from the sale unless specified in 13B or C. B. ITEMS INCLUDED IN SALE: (1) All EXISTING fixtures and fittings that are attached to the Property; (2) EXISTING electrical, mechanical, lighting, plumbing and heating fixtures, coiling fens, fireplace Inserts, gas logs and grates, solar systems, bui&in appliances, window and door screens, awnings, shutters, window coverings, attached floor coverings, television antennas, satellite dishes, private Integrated telephone systems, air coolers/conditioners, pool/spa equipment, garage door openers/remote controls, mailbox. In -ground landscaping, trees/shrubs, water softeners, water purifiers, security systems/alarms; (3) A complete Inventory of all personal property of Seller currently used in the operation of the Property and Included in the purchase price shall be delivered to Buyer within the time specified in paragraph 18. (4) Seller represents that all items Included in the purchase price, unless otherwise specified, are owned by Seller. (8) Seller shall deliver We to the personal property by Bill of Sale, free of all Gans and encumbrances, and without warranty of condition. (6) As additional security for any note in favor of Seller for any pan of the purchase price, Buyer shag execute a UCC-1 Financing Statement to be filed with the Secretary of State, covering the personal properly included in the purchase, replacement thereof, and Insurance proceeds. C. ITEMS EXCLUDED FROM SALE: Any and all oersonal items beloncina to tenants. 14. CONDITION OF PROPERTY: Unless otherwise agreed: (1) the Property Is sold (a) in its PRESENT physical ("rids") condition as of the date of Acceptance and (b) subject to Buyer's Investigation rights; (It) the Property, Including pool, spa, landscaping and grounds, Is to be maintained in substantially the same condition as of the date of Accaptanoe;'and (111) all debris and personal property not Included in the sale shall be removed by Seller by Close Of Escrow. A. Seller warrants that the Property Is legally approved as 5 units. B. Seger shall, within the time specified In paragraph 18, DISCLOSE KNOWN MATERIAL FACTS AND DEFECTS affecting the Property, Including known insurance claims within the past five years, and make any and all other disclosures required by law. C. Buyer has the right to inspect the Property and, as specified in paragraph 18, based upon information discovered in those inspections: (1) cancel this Agreement or (II) request that Seller make Repairs or take other action. D. Buyer Is strongly advised to conduct Investigations of the entire Property In order to determine Its present condition since seller may not be aware of all defects affecting the Property or other factors that Buyer considers Important. Property Improvements may not be built according to code, In compliance with current Law, or have had permits Issued 1f>. BUYER'S INVESTIGATION OF PROPERTY AND MATTERS AFFECTING PROPERTY: A. Buyers acceptance of the condition of, and any other matter affecting the Property, Is a contingency of this Agreement as specified in this paragraph and paragraph 18B. Within the time specified in paragraph 18B(1), Buyer shall have the right, at Buyers expense unless otherwise agreed, to conduct inspections, investigations, tests, surveys and other studies t'Buyer investigations'), Including, but not limited to, the right to: (1) Inspect for lead -based paint and other lead -based palm hazards; (11) Inspect for wood destroying pests and organisms; (III) review the registered sex .1AA/ der database; Qv) confirm the Insurability of Buyer and the Properly; and (v) satlafy Buyer as to any matter specified in the Buyers initials ( ( ) Sellers inftlals (*I ) Copyrighta lees-2010, LIFORNIA ASSOCIATION OF REACTORS®, INC. Renlawatl Dab arvanrvrA10n RIPA REVISED 4110 (PAGE 4 OF 70) RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 4 OF 10) Mike Fischer 4 plex » 282 M53 Wall- St. Property Address: 1:a oointa. Q 92253. Date: am.. 26. 2011 18. attached Buyers Inspection Advisory (CA.R. Form BIA). Without Seller's prior written consent, Buyer shall neither make nor cause to be made: (1) Invasive or destructive Buyer Investigations; or (11) Inspections by any governmental building or zoning inspector or government employee, unless required by Law. B. Seller shall make the Property available for all Buyer Investigations. Buyer shall (1) as specified in paragraph 18B, complete Buyer Investigations and, either remove the contingency or cancel this Agreement, and (11) give Seller, at no cost complete Copies of all Investigation reports obtained by Buyer, which obligation shall survive the termination of this Agreement. C. Seller shall have water, gas, electricity and all operable pilot lights on for Buyers Investigations and through the date possession is made available to Buyer. D. Buyer Indemnity and Seller protection for entry upon property: Buyer shall: (1) keep the Property free and cheer of bens; (11) repair all damage easing from Buyer Investigations; and (111) indemnify and hold Seller harmless from all resulting likability, claims, demands, damages and costs of Buyers Investigations. Buyer shall carry, or Buyer shall require anyone acting on Buyers behalf to tarty, policies of liability, workers' compensation and other applicable insurance, defending and protecting Seller from liability for any injuries to persons or property occurring during any Buyer Investigations or work done on the Property at Buyers direction prior to Close Of Escrow. Seller Is advised that certain protections may be afforded Seller by recording a •Notice of Non-responsiblitgr' (CAR. Form NNR) for Buyer Investigations and work done on the Property at Buyers direction. Buyers obligations under this paragraph shall sur"I a the termination or cancellation of this Agreement and Close Of Escrow. SEI A B. C. A 17. TITLE AND VESTING: A )RAWCij/E ^) ors rrc g J%01errow+. A. Within the time specified in paragraph 18, Buyer shall be provided a current preliminary title report, which shall include a search of the General Index, Seger shall within 7 Days After Acceptance, give Escrow Holder a completed Statement of Information. The preliminary report is only an offer by the title Insurer to Issue a policy of title Insurance and may not contain every item affecting title. Buyers review of the preliminary report and any other matters which may affect title are a contingency of this Agreement as specified in paragraph 18B. B. Tale Is taken in its present condition subject to all encumbrances, easements, covenants, conditions, restrictions, rights and other matters, whether of record or not. as of the date of Acceptance except: (1) monetary liens of record unless Buyer is assuming those obligations or taking the Property subject to those obligations; and (11) those matters which Seger has agreed to remove in writing. C. Within the time specified in paragraph 18A, Seller has a duty to disclose to Buyer all matters known to Seller affecting title, whether of record or not. D. At Close Of Escrow, Buyer shall receive a grant deed conveying title (or, for stock cooperative or long-term lease, an assignment of stock cedifirate or of Sellers leasehold Interest), including oil, mineral and water rights If currently owned by Seller. Title shell vest as designated in Buyers supplemental escrow instructions. THE MANNER OF TAKING TITLE MAY HAVE SIGNIFICANT LEGAL AND TAX CONSEQUENCES. CONSULT AN APPROPRIATE PROFESSIONAL. E. Buyer shall receive a standard coverage owners CLTA policy of title Insurance. An ALTA policy or the addition of endorsements may provide greater coverage for Buyer. A title company, at Buyers request, can provide information about availability, desirability, coverage, survey requirements and cost of vadous title Insurance coverages and endorsements. If Buyer desires title coverage other than that required by this paragraph, Buyer shall Instruct Escrow Holder In writing and pay any increase in coat 18. TIME PERIODS; REMOVAL OF CONTINGENCIES; CANCELLATION RIGHTS: The following time periods may only be extended, altered, modified or changed by mutual written agreement. Any removal of contingencies or cancellation under this paragraph by either buyer or seller must be exercised in good faith and In writing (CAR. Form CR or CC). A. SELLER HAS: 7 (or (] ) Days After Acceptance to deliver to Buyer all reports, disclosures and Information for which Seller is responsible under paragrep a 4, 7A, B and C, 8A, 9, 12A, 138(3), 14B, 16A and B, and 17. Buyer may give Seller a Notice to Seller to perform (CA.R. Forth NSP) It Seller has not Delivered the Items within the time specified. B. (1) BUYER HAS: 17 (or f'I ) Days After Acceptance, unless otherwise agreed in writing, to: (1) complete all BuyerTmreaggations; approve all disclosures, reports and other applicable information, which Buyer receives from Seller, and approve all other matters affecting the Properly; and (11) Deliver to Seger Signed Copies of Statutory and Lead Disclosures Delivered by Seller In accordance with paragraphs 7A or &A. (2) Within the time specified In 18121(1), Buyer may request that Seller make repairs or take any other action regarding the Property (CAR. Form RR). Seller has no obligation to agree to or respond to Buyers requests. (3) Within the time specified In 188(1) (or as otherwise specified In this Agreement), Buyer shall Deliver to Seller either (1) a removal of the applicable contingency (CA.R. Form CR), or (II) a cancellation (CAR. Forth CC) of this Agreement based upon a remaining contingency or Sellers failure to Deliver the specified game. However, if any report, disclosure or information for which Seller is responsible is not Delhrered within the time spedged in I W then Buyer has5 (or (] ) Daye After Delivery of any such Items, or the time specified In 18B(1), whichever is later, to Deliver to Seller a mrnOv a epp ce contingency or cancellation of this Agreement. (4) Continuation of Contingency: Even after the end of the time specified in 188(1) and before Seger cancels this Agreement N at all, pursuant to 18F, Buyer retains the right to either (1) In writing remove remaining contingencies. or or (6) cancel this Agreementbased upon e remaining i ncy. Once Buyers written removal of all oongngencles is Delivered to Seller. Seller may not cancel. this Agreement pursue Buyers Initials ( )(—) Sellers Inklals ('r v ) ( ) Copyright C lOW 010, CALIFORNM ASSOCIATION OF RFJU.TORSIS, INC. Revieand by Dale s ruin RIPA REVISED 4110 (PAGE 5 OF 10) RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 5 OF 10) Mike Fischer 4 plex 283 78153 Main+ fit. Property Address: la Quints. GA 92253_ Date: Mav 2s. a011 C. SELLER RIGHT TO CANCEL (1) Seller right to Cancel; Buyer Contingencies: If, within the time specified in this Agreement, Buyer does not in writing Deliver to Seller a removal of the applicable contingency or cancellation of this Agreement then Seller, after first Delivering to Buyer a Notice to Buyer to Perform (CAR Form NBP) may cancel this Agreement. In such event Seller shall authorize return of Buyer's deposit (2) Seller right to Cancel; Buyer Contract Obligations: Seller, after first Delivering to Buyer a NBP may cancel this Agreement for any of the following reasons. (1) it Buyer fags to deposit funds as required by 3A or 3B; (11) Me funds deposited pursuant to 3A or 3B are not good when deposited; (111) if Buyer fails to Deliver a notice of FHA or VA costs or terms as required by 3C(3) (CAR Form FVA); (Iv) R Buyer falls to Deliver a letter as required by 3H; (v) If Buyer falls to Deliver verification as required by 30 or 3J; (A) if Seller reasonably disapproves of the verification provided by 3G or 3.1; (viq it Buyer fags to retum Statutory and Lead Disclosures as required by paragraphs 7A(2) or BA(2); or (vilg If Buyer falls to sign or Initial a separate liquidated damages forth for an Increased deposit as required by paragraphs 3B and 34. In such event, Seller shall authorize return of Buyers deposit. (3) Notice To Buyer To Perform: The NBP shall: (1) be in writing; (11) be signed by Seller, and (ill) give Buyer at least 2 (or ❑ ) Days After Delivery (or until the time specified in the applicable paragraph, whichever occurs last) to take the applicable action. A NBP may not be Delivered any earlier than 2 Days Prior to the expiration of the applicable tbne for Buyer to remove a contingency or cancel this Agreement or meet an obligation specified in 18C(2). D. EFFECT OF BUYER'S REMOVAL OF CONTINGENCIES: If Buyer removes, in writing, any contingency or cancellation rights, unless otherwise specified In a separate written agreement between Buyer and Seller, Buyer shall with regard to that contingency or cancellation right conclusively be deemed to have: (1) completed all Buyer Investigations, and review of reports and other applicable information and disclosures 01) elected to proceed with the transaction; and (III) assumed all liability, responsibility and expense for Repairs or corrections or for Inability to obtain financing. E. CLOSE OF ESCROW: Before Seiler or Buyer may cancel this Agreement for failure of the other party to dose escrow pursuant to this Agreement, Seller or Buyer must first Deliver to the other a demand to dose escrow (CAP- Forth DCE). F. EFFECT OF CANCELLATION ON DEPOSITS: N Buyer or Seller gives written notice of cancellation pursuant to rights duly exercised under the terms of this Agreement Buyer and Seller agree to Sign mutual Instructions to cancel the sale and escrow and release deposits, If any, to the parry entitled to the funds, less fees and costs incurred by that party. Fees and costs may be payable to service providers and vendors for services and products provided during escrow. Release of funds will require mutual Signed release Instructions from Buyer and Seller, judicial decision or arbitration award. A Buyer or Seller may be subject to a civil penalty of up to $1,000 for refusalto sign such Instructions If no good faith dispute exists as to who is entitled to the deposited funds (CMI Code §1057.3). 18. REPAIRS: Repairs shall be completed prior to final verification of condition unless otherwise agreed In writing. Repairs to be performed at Sellers expense may be performed by Seller or through others, provided that the work complies with applicable Lew, Including governmental permit, Inspection and approval requirements. Repairs shall be performed in a good, skillful manner with materials of quality and appearance comparable to existing materials. It Is understood that exact restoration of appearance or 009MOUC Rams following all Repairs may not be possible. Seller shall: (1) obtain receipts for Repairs performed by others; (11) prepare a written statement indicating the Repairs performed by Seller and the date of such Repairs; and (Ili) provide Copies of receipts and statements to Buyer prior to final verification of condition. 20. ENVIRONMENTAL HAZARD CONSULTATION: Buyer and Seller acknowledge: (1) Federal, state, and local legislation Impose liability upon existing and former owners and users of real properly, in applicable situations, for certain legislatively defined, environmentally hazardous substances; (11) Broker(s) hasfhave made no representation concerning the applicability of any such Law to this transaction or to Buyer or to Seller, except as otherwise Indicated In this Agreement (1it) Broken(s) has/have made no representation concerning the existence, testing, discovery, location and evaluation MAfor, and risks posed by, environmentally hazardous substances, If any, located on or potentially affecting the Property; and Qv) Buyer and Seller are each advised to consult with technical and legal experts concerning the existence, testing, discovery, location and evaluation ofifor, and risks posed by environmentally hazardous substances, if any, located on or potentially affecting the Property. 21. AMERICANS WITH DISABILITIES ACT: The Americans With Disabilities Act ("ADA') prohibits discrimination against Individuals with disabilities. The ADA affects almost aft commercial facilities and public accommodations. Residential properties are not typically Covered by the ADA, but may be governed by its provisions if used for certain purposes. The ADA can require, among other things, that buildings be made readily accessible to the disabled. Different requirements apply to new construction, alterations to existing buildings, and removal of barriers in existing buildings. Compliance with the ADA may require significant costs. Monetary and Injunctive remedies may be incurred If the Property is not In compliance. A real estate broker does not have the technical expertise to determine whether a building Is In compliance with ADA requirements, or to advise a principal on those requirements. Buyer and Seller are advised to contact an attorney, contractor, architect engineer or other qualified professional of Buyer or Sellers own choosing to determine to what degree, If any, the ADA Impacts that principal or this transaction. 22. FINAL VERIFICATION OF CONDITION: Buyer shall have the right to make a final inspection of the Properly withln8 (or - ) Days Prior to Close Of Escrow, NOT AS A CONTINGENCY OF THE SALE, but society to confirm: (1) the Property is maintained pursuant to paragraph 14A; (II) Repairs have been completed as agreed; and (liq Seller has compiled with Sellers other obligations under this Agreement (CAR. forth VP). 23. PRORATIONS OF PROPERTY TAXES AND OTHER ITEMS: Unless otherwise agreed In writing, the following items shall be PAID CURRENT and prorated between Buyer and Seller as of Close Of Escrow: real property taxes and assessments, Interest, rents, HOA regular, special, and emergency dues and assessments imposed prior to Close Of Escrow, premiums on insurance assumed by Buyer, payments on bonds and assessments assumed by Buyer, and payments on Mello -loos and other Special Assessment D"hsbid bonds and assessments that are a current lien. The following items shall be assumed by Buyer WITHOUT CREDIT toward the purchase prim: prorated payments on Mello -Roos and other Special Assessment District bonds and assessments and HOA special assessments that are a current Ilen but not yet due. The Property will be reassessed upon change of ownership. Any supplemental tax bills shall be paid as follows: (n for periods after Close Of Escrow, by Buyer and (11) for periods prior to Close Of Escrow, by Seller (see CAR. Forms SPT or SBSA for fuller information). BILLS ISSUED AFTER CLOSE OF ESCROW SHALL BE HANDLED DIRECTLY BETWEEN BUYER AND SELLER Proration shall be made based on a 30day month. Buyer's Initials ( �2 ) ( ) Salters Initials Coyymght®1ea&2010, CAUFORNINASSOCIATION OF REALTORSO, INC. maOB RIPA REVISED 4M0 (PAGE 8 OF 10) MUM RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 8 OF 10) Mike Fischer 4 pbx » 284 78153 Alain fit. Property Address: r Quints _ CA 92253_ Date: Ales 26. 2011 24. SELECTION OF SERVICE PROVIDERS: Brokers do not guarantee the performance of any vendors, service or product providers ("Providers"), whether referred by Broker or selected by Buyer, Sadler or other person. Buyer and Seller may select ANY Providers of their own choosing. 26. MULTIPLE LISTING SERVICE ("MLS"): Brokers are authorized to report to the MLS a pending sale and, upon Close Of Escrow, the sales price and other terns of this transaction shall be provided to the MLS to be published. and disseminated to persons and entities authorized to use the information on terms approved by the MLS. 26. EQUAL HOUSING OPPORTUNITY: The Property Is sold in compliance with federal, state and local antl-discrimination Laws. 27. ATTORNEY FEES: In any action, proceeding, or arbitration between Buyer and Seiler arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the nonIxavalli g Buyer or Seller, except as provided in paragraph 35A. 28. DEFINITIONS: As used In this Agreement A. "Acceptance" means the time the offer or final counter offer Is accepted in writing by a party and is delivered to and personally received by the other party or that partes authorized agent in accordance with the terms of this offer or a final counter offer. B. "CA.R. Form" means the specific form referenced or another comparable form agreed to by the parties. C. "Close Of Escrow" means the date the grant deed, or other evidence of transfer of title, is recorded. D. "Copy' means copy by any means including photocopy. NCR, facsimile and electronic. E. "Days" means calendar days. However, after Acceptance, the Iasi Day for performance of any act required by this Agreement (including Close Of Escrow) shall not include any Saturday, Sunday, or degas holiday and shall Instead be the next Day. F. "Days After" means the specified number of calendar days alter the occurrence of the event specified, not counting the calendar date on which the specified event occurs, and ending at 11:59 PM on the final day. G. "Days Prior" means the spedfied number of calendar days before the occurrence of the event specified, no counting the calendar date on which the specified event Is scheduled to occur. H. "Deliver", "Delivered" or "Delivery", regardless of the method used 0.e. messenger, mall, email, fax other), means and shall be effective upon (I) personal receipt by Buyer or Seller or the Individual Real Estate Licensee for that principal as specified in paragraph D of the section titled Real Estate Brokers on page 8; OR (i9 if checked, (] per the attached addendum (CA.R. Form RON). I. "Electronic Copy' or "Electronic Signature" means, as applicable, an electronic copy or signature complying with California Law. Buyer and Seller agree that electronic means will not be used by either party to modify or alter the content or Integrity of this Agreement without the knowledge and consent of the other party. J. "Law" means any law, code, statute, ordinance, regulation, rule or order, which Is adopted by a controlling city, county, state or federal legislative, judicial or executive body or agency. K. "Repalm" means any repairs (Including pest controq, alterations, replacements, modifications or retrofitting of the Property provided for under this Agreement. L "Signed" means either a handwritten or electronic signature on an original document, Copy or any counterpart. 29. ASSIGNMENT: Buyer shall not assign all or any part of Buyers interests in this Agreement without first having obtained the written consent of Seiler. Such consent shall not be unreasonably withheld, unless otherwise agreed in writing. Any total or partial assignment shall not relieve Buyer of Buyers obligations pursuard to this Agreement. 30. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon, and Inure to the benefit of, Buyer and Seller and their respective successors and assigns, except as otherwise provided herein. 31. COPIES: Seller and Buyer each represent that Copies of all reports, documents, certificates, approvals and other documents that are furnished to the other are true, correct and unaltered Copies of the original documents, if the odginals are in the possession of the furnishing party. 32. BROKERS: A BROKER COMPENSATION: Seller or Buyer, or bath, as applicable, agrees to pay compensation to Broker as specified in a separate written agreement between Broker and that Seller or Buyer. Compensation Is payable upon Close Of Escrow, or ff escrow does not dose, as otherwise specified in the agreement between Broker and that Seller or Buyer. B. BROKERAGE: Neither Buyer nor Seller has utilized the services of, or for any other reason owes compensation to, a licensed real estate broker (individual or corporate), agent, finder, or other entity, other than as specified In this Agreement, In connection with any ad relating to the Property, including, but not limited to, inquiries, tntroductions, consultations and negotiations leading to this Agreement Buyer and Seller each agree to indemnity and hold the other, the Brokers speed herein and their agents, harmless from and against any costs, expenses or liability for compensation claimed inconsistent with the warranty and representation in this paragraph. 33. JOINT ESCROW INSTRUCTIONS TO ESCROW HOLDER: A. The following paragraphs, or applicable portions thereoi,of this Agreement constitute the joint escrow Instructions of Buyer and Seller to Escrow Holder, which Escrow Holder is to use along with any relating counter offers and addenda, and any additional mutual instructions to dose the escrow:. 1, 3, 4, 8, 7C, 16B and D, 17, 1SF, 23, 28, 32A, 33, 37, 40, and paragraph D of the section titled Real Estate Brokers on page 10. If a Copy of the separate compensation agmement(s) provided for in paragraph 32A, or paragraph D of the section titled Real Estate Brokers on page 10 is deposited with Escrow Holder by Broker, Escrow Holder shall accept such agmement(s) and pay out of Buyers or Sellers funds, or both, as applicable, the respective Brokers compensation provided for In such agreement(s). The terms and conditions of this Agreement not specifically referenced above, in the specified paragraphs are additional matters for the information of Escrow Holder, but about which Escrow Holder need not be concerned. Buyer and Seller will receive Escrow Holders general provisions directly from Escrow Holder and will execute such provisions upon Escrow Holders request. To the extent the general provisions are Inconsistent or conflict with this Agreement, the general provisions will control as to the duties and obligations of Escrow Holder only. Buyer and Seller will execute additional Instructions, documents and fortes provided by Escrow Holder that are reasonably necessary to dose the escrow. Buyers Initials ( "A) ( ) - Sellers Initials (W ) ( ) 2 Copyright 01995,2010, CALIFORNIAASSOCWItON OF RFALTORS9. INC. Revie mid by Date RIPA REVISED 4110 (PAGE 7 OF 10) RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 7 OF 10) Mike Fischer 4 plex 285 70153 Main St. Property Address: m:s Quints. CA 92253, Date: ffity 26, 2011 B. A Copy of this Agreement shall be delivered to Escrow Holder within3 business days after Acceptance (or [3 ). Escrow Holder shall provide Sellers Statement of Information to Title company when the preliminary report Is ordered. Buyer armd Seller authorbm Escrow Holder to accept and rely on Copies and Signatures as defined in this Agreement as originals, to open escrow and for other purposes of escrow. The validity of this Agreement as between Buyer and Seller is not affected by whether or when Escrow Holder Signs time Agreement. C. Brokers are a party to the Escrow for the sote purpose of compensation pursuant to paragraph 32A and paragraph D of the section titled Real Estate Brokers on page 10. Buyer and Seller Irrevocably assign to Brokers compensation specified in paragraphs 32A, respectively, and Irrevocably instructs Escrow Holder to disburse those funds to Brokers at Close Of Escrow, or pursuant to any other mutually executed cancellation agreement. Compensation Instructions can be amended or revoked only with the written consent of Brokers. Buyer and Seller shall release and hold harmless Escrow Holder from any liability resulting from Escrow Holders payment to Bmker(s) of compensation pursuant to this Agreement Escrow Holder shall immediately notify Brokers: (0 If Buyers initial or any additional deposit is not made pursuant to this Agreement or is not good at time of deposit with Escrow Holder; or(II) B either Buyer or Seller instruct Escrow Holder to cancel escrow. D. A Copy of any amendment that effects any paragraph of this Agreement for which Escrow Holder is responsible shall be delivered to Escrow Holder within 2 business days after mutual execution of the amendment 34. LIQUIDATED DAMAGES: If Buyer falls to complete this purchase because of Buyer's default, Seller shall retain, as liquidated damages, the deposit actually paid. if the Property Is a dwelling with no more than four units, one of which Buyer Intends to occupy, then the amount retained shall be no more than 3%, of the purchase price. Any excess shall be returned to Buyer. Release of funds will require mutual, Signed release Instructions from both Buyer and Seller, judicial decision or arbitration award. AT THE TIME OF THE INCREASED DEPOSIT, BUYER AND SELLER SHALL SIGN A SEPARATE LIQUIDATED DAMAGES PROVISION FOR ANY INCREASEDnD3TSIT (CJLP- FORM RID). !f Buyers Initial f Sellers initials 35. DISPUTE RESOLUTION: h A MEDIATION: Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement or any resulting transaction, before resorting to arbitration or court action. Buyer and Seller also agree to mediate any disputes or claims with Broker(s), who In writing, agree to such mediation prior to, or within a reasonable time after, the dispute or claim Is presented to the Broker. Mediation fees, n any, shall be divided equally among the parties involved. If, for arty dispute or claim to which this paragraph applies, any party (q commences an action without first attempting to resolve the matter through mediation, or (it) before commencement of an action, refuses to mediate after a request has been made, then that parry shall not be entitled to recover attorney fees, even H they would otherwise be available to that parry In any such action. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED. Exclusions from this mediation agreement are specified in paragraph 36C. B. ARBITRATION OF DISPUTES: Buyer and Seller agree that any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction, which Is not settled through mediation, shall be decided by neutral, binding arbitration. Buyer and Seller also agree to arbitrate any disputes or claims with Broker(s), who, in writing, agree to such arbitration prior to, or within a reasonable time after, the dispute or claim Is presented to the Broker. The arbitrator shall be a retired judge or justice, or an attorney with at least 5 years of residential real estate Law experience, unless the parties mutually agree to a different arbitrator. The parties shall have the right to discovery In accordance with Code of Civil Procedure §1283.05. In all other respects, the arbitration shall be conducted in accordance with Title S of Part 3 of the Code of Civil Procedure. Judgment upon the award of the arbitrator(s) may be entered Into any court having jurisdiction. Enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration Act Exclusions from this arbitration agreement are specified In paragraph 35C. "NOTICE: BY INHALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY." 'WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DIS,pIJAES' PROVISION TO NEUTRAL ARBITRATION." A, A Buyers Initials' I N - J / Sellers Initials EL194 /--,vWJ 1 C. ADDITIONAL MEDIATION AND ARBITRATION TERMS: (1) EXCLUSIONS: The following matters shall be excluded from mediation and arbitration: (1) a judicial or noraudiclal foreclosure or other action or proceeding to enforce a deed of trust, mortgage or Installment land sale contract as defined In Civil Code §2985; (11) an unlawful detalner action; (111) the filing or enforcement of a meehanle's lien; and (v) any matter that is within the jurisdiction of a probate, small claims or bankruptcy court The filing of a court action to enable the recording of a notice of pending action, for order of attachment receivership, Injunction, or other provisional remedies, shall not constihde a waiver or violation of the mediation and arbitration provisions. (2) BROKERS: Brokprs shall not be obligated nor compelled to mediate or arbitrate unless they agree to do so In writing. Any Broker(s) participating In F-) ation or arbitration shall not be deemed a party to the AgreementBuyers Initials( %, Sellers initials ) ( ) C Copyright01908-2010, CALIFORNIA ASSOCIATION OF REALTORSO, INC. RevbwBtl Date REVISED Mill (PAGE S OF 10) RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 8 OF 10) Mike Fischer 4 plex 286 7e153 Main St. Property Address: T.a OrL.aa- CA_ 92253. Date: May 26, 2011 36. TERMS AND CONDITIONS OF OFFER: This Is an offer to purchase the Property on the above terms and conditions. The liquidated damages paragraph or the arbitration of disputes paragraph is incorporated in this Agreement if Initialed by all parties or if Incorporated by mutual agreement in a counter offer or addendum. If at (east one but not all parties initial such paragraph(s), a counter offer Is required until agreement is reached. Seller has the right to continue to offer the Property for sale and to accept any other offer at any time prior to notification of Acceptance. If this offer is accepted and Buyer subsequently defaults, Buyer may be responsible for payment of Brokers' compensation. This Agreement and any supplement, addendum or modification, Including any Copy, may be Signed in two or more counterparts, all of which shall constitute one and the same writing. 37. TIME OF ESSENCE; ENTIRE CONTRACT; CHANGES: Time is of the essence. All understandings between the parties are Incorporated in this Agreement. Its terms are intended by the parties as a final, complete and exclusive expression of their Agreement with respect to its subject matter, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. If any provision of this Agreement is held to be ineffective or invalid, the remaining provisions will nevertheless be given full fora and affect. Neither this Agreement nor any provision in N may be extended, amended, modified, altered or changed, except in writing Signed by Buyer and Seller. 38. AUTHORITY: Any person or persons signing this Agreement represents) that such person has fug power and authority to bind that person's principal, and that the designated Buyer and Seller has full authority to enter into and perform this Agreement. Entering into this Agreement, and the completion of the obligations pursuant to this contract, does not violate any Articles of Incorporation, Articles of Organization, Bylaws, Operating Agreement, Partnership Agreement or other document governing the activity of either Buyer or Seller. 39. EXPIRATION OF OFFER: This offer shall be deemed revoked and the deposit shall be returned, unless the offer is Signed by Seiler, and a Copy of the Signed offer is personally received by Buyer, or by who is authorized to receive it by 5:00 PM on the third Day after this offer is signed by Buyer (or, if checked by AM PM) on (date), Buyer has read and acknowledges receipt of a Copy of the offer and agrees to the above confirmation of agency relationships. Date May 26 2011 Date BUYER ;3 ib BUYER By / 0! - By Print name See Attached Sigrrature Page Print name Title Thames P. Genovese. Ci tv Manager Title Address P.O. Box 1504 Address Zd Oninta. CA. 92247 ❑ Additional Signature Addendum attached (C.A.R. Form ASA). 40. ACEPTANCE OF OFFER: Seller warrants that Seller is the owner of the Property, or has the authority to execute this Agreement. Seller accepts the above offer, agrees to sell the Property on the above terms and conditions, and agrees to the above confirmation of agency relationships. Seller has read and acknowledges receipt of a Copy of this Agreement, and authorizes Broker to deliver a Signed Copy to Buyer. (If checked) SUBJECT TO ATTACHED COUNTER OFFER (CA.R. Form CO), DATED Date 5 1 Date 5 SELLER ; y SELLER SJ' L k y By By ` Print name rjsuuiraylan Zmklly LtIf Pawtmez=bly Print name Title Partner Title Address 79023 C&12e Estado Address La Ouinta. CA. -92253 O Additional Signature Addendum attached (C.A.R. Form ASA). (_ / ) CONFIRMATION OF ACCEPTANCE: A Copy of Signed Acceptance was personalty received by Buyer or Buyer's authorized (Initials) agent on (date) at ❑ AM ❑ PM. A binding Agreement is created when a Copy of Signed Acceptance Is pesonalty received by Buyer or Buyer's authorized agent whether or not confirmed In this document. Completion of this confirmation is not legally required in order to create a binding Agreement; N Is solely Intended to evidence the data that Confirmation of Acceptance has occurred. Buyer's Initials ( —V' ( ) Seller's Initials ( 44 ) ( ) Copyright 01993-2010, CALIFORNIA ASSOCIATION OF REALTORSO, INC. RIPA REVISED 4110 (PAGE 9 OF 10) Reviewed by Date arommn "r RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 9 OF 10) Mike Fischer plex ..e 281 78153 Main St. Property Address: La Ouinta, CA. 92253, Date: May 26, 2011 REAL ESTATE BROILERS: A. Real Estate Brokers are not parties to the Agreement between Buyer and Seller. B. Agency relationships are confirmed as stated In paragraph 2 above. C. N specified in paragraph 3A(2), Agent who submitted offer for Buyer acknowledges receipt of deposit D. COOPERATING BROKER COMPENSATION: Listing Broker agrees to pay Cooperating Broker (Selling Firm) and Cooperating Broker agrees to accept, out of Listing Broker's proceeds in escrow: (1) the amount specified In the MLS, provided Cooperating Broker is a Participant of the MLS in which the Property is offered for sate or a reciprocal MLS; or(II) ❑ (if checked) the amount specified in a separate written agreement (CAR Form CBC) between Listing Broker and Cooperating Broker. Declaration of License and Tax (C.A.R. Farm OLT) may be used to document that tax reporting will be required or that an exemption exists. Real a Broker ( 1 imt) La Ouinta Palma Realty ORE Lin # 00915271 By �Z/�— i9xvice Cathcart ORE Lic. # SMW Date 05/26/2011 Address 51001 Eisenho"r Dr. City La 9RLRj;J State CA, Zip 92253 Telephone (760)564-4104 Fax (760)564-0344 E-mail lacuintapalma8do. rr. am -a is ( n)La Quints Palms Realty ORE Lie.# 00915271 Bye Busts Cathcart ORE Lia # SAD1E Date 05/26/2011 Address s1001 1?iaeahorer Dr_ City La Duinta State CA, ZIP22253 Telephone (760)564-4104 Fax (760)564-0344 E-mail 2acuintanalms8dc. rr. com ESCROW HOLDER ACKNOWLEDGMENT: Escrow Holder acknowledges receipt of a Copy of this Agreement, (if checked,[] a deposit in the amount of $ ), counter offer(s) numbered ❑ Seller's Statement of Information and ❑ Other , and agrees to act as Escrow Holder subject to paragraph 33 of this Agreement, any supplemental escrow instructions and the terms of Escrow Holders general provisions, if any. Escrow Holder is advised that the date of Confirmation of Acceptance of the Agreement as between Buyer and Seller is Escrow Holder - Escrow # By Date Address PhonelFaxlE-mail Escrow Holder is licensed by the Cat ' Department of ❑ Corporations,❑ Insurance,❑ Real Estate. License # PRESENTATION OF OFFER:( ) Listing Broker presented this offer to Seler on S r (date). YhW-w Designee Initial& REJECTION OF OFFER: (_ x_ ) No counter offer Is being made. This offer was rejected by Seller on (date). SeiWe Micas THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF RFALTORS9 (CAR.). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE, CONSULT AN APPROPRIATE PROFESSIONAL. This form is available Tor use by the entire real estate industry. Ric not Intended to Identify ere user as a REALTOR& REALTORS, is a registered cooscave membership mark which may be used only by members of the NATIONAL ASSOCIATION OF RFALTORSOwho subscribe to its Code of Ethics. Published and Distributed by: e REAL ESTATE BUSINESS SERVICES, INC. a subsidiary orthe CaGMmia Association o/REALTORSO Q e 525 South Virgil Avenue, Los Angeles, California 9=0 Reviewed by Date wo xreaamiryc RIPA REVISED 4110 (PAGE 10 OF 10) RESIDENTIAL INCOME PROPERTY PURCHASE AGREEMENT (RIPA PAGE 10 OF 10) Mike Fisch"4 Alex 283 4,S ASSOCORNIA ASSOCIATION _� OF AEALTORSO ADDENDUM (C.A.R. Form ADM, Revised 10101) NO. One The following terms and conditions are hereby incorporated in and made a part of the: ❑ Residential Purchase Agreement, ❑ Manufactured Home Purchase Agreement, ❑ Business Purchase Agreement, ❑ Residential Lease or MonthAo-Month Rental Agreement, ❑ Vacant Land Purchase Agreement, ® Residential Income Property Purchase Agreement, ❑ Commercial Property Purchase Agreement, ❑ other dated may 26, 2011 , on property known as 78153 Main St. - -- La Ouinta. CA. 92253 in wntcn rae r:scy or u Lr,"nra , is referred to as ("Buyer/Tenant") and Yessayian Family Ltd . Partnerahio is referred to as C'Seller/Landlord"). The foregoing terms and conditions are hereby agreed to, and the undersigned acknowledge receipt of a copy of this document. Date / ZG / Date 5�Zrf f f t Buyer/renan 1 Seller/Landlord �q� a�Pn �1NP� The City o La Quinta y` Ye a Ea amili td _my�:}�� Buyer/renant� ,��r,�� / y�� QSeller/Landlon �.�""��`•^e"�� Partnerahip The copyright laws of the United Stan (Title 17 U.S. Code) forbid the unauthorized reproduction or this form, or any portion thereof, by photocopy machine or any other means, including facsimile w computerized formats. Copyrighlm 1 gs0-2001. CALIFORNIA ASSOCIATION OF REALTORS®, INC. ALL RIGHTS RESERVED. THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORS@ (CAR.). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE, CONSULT AN APPROPRIATE PROFESSIONAL. This form is available for use by the entire real estate industry. K is not intended to IdentHy the user as a REALTORO. REALTORe is a registered collective membership mark which may be used only by members of the NATIONAL ASSOCIATION OF REALTORSOwho subscribe to Its Code of Ethics. Published end Distributed by REAL ESTATE BUSINESS SERVICES INC a subsidia yof the CBlromlaAssocieron o(REALTORSO . 525 South Virgil Avenue, Los Angeles, Calfomla 90020 ADMA I REVISED 10/01 (PAGE 1 OF 1) Bruce Broker: ADDENDUM Palms Real Estate Co 51-001 Eisenhower Reviewed by r� Broker or Designee Date mw�eunw sma,uenv PAGE 1 OF 1) -" 289 Property Address: -IS ! S3 Rd& Sr 14 All/ r4, 0W. %22 5-3 IN WITNESS WHEREOF, Buyer and Seller each hereby represents that it has read this Agreement, understands it, and hereby executes this Agreement to be effective as of the day and year first written above. SELLER: ATTRCT- APPROVED AS TO FORM: RUTAN & TUCKER, LLP City Attorney BUYER: CITY OF LA QUINTA, a California municipal corporation and charter city Thomas P. Genovese, City Manager [end of signatures] 267/015610-0046 1159881.014(Aw/11. 290 CALIF0-NIA t AssOCIATION BUYER'S INSPECTION ADVISORY Ift� OF REALTO AS® (CA.R. Form BIA A, Revised 10102) Properly Address: 78253 Mats St. , La Quints, CA. 92253 PProperty'9 A. IMPORTANCE OF PROPERTY INVESTIGATION: The physical condition of the land and Improvements being purchased Is not guaranteed by either Seller or Brokers. For this reason, you should conduct thorough investigations of the Property personally and with professionals who should provide written reports of their investigations. A general physical Inspection typically does not cover all aspects of the Property nor items affecting the Property that are not physically located on the Property. If the professionals recommend further investigations, including a recommendation by a pest control operator to inspect inaccessible areas of the Property, you should contact qualified experts to conduct such additional investigations. B. BUYER RIGHTS AND DUTIES: You have an affirmative duty to exercise reasonable care to protect yourself, including discovery of the legal, practical and technical implications of disclosed fads, and the investigation and verification of Information and facts that you know or that are within your diligent attention and observation. The purchase agreement gives you the right to investigate the Property. If you exercise this right, and you should, you must do so in accordance with the terms of that agreemenL This is the best way for you to protect yourself. It Is extremely important for you to read all written reports provided by professionals and to discuss the results of inspections with the professional who conducted the inspection. You have the right to request that Seller make repairs, comedions or take other action based upon items discovered in your investigations or disclosed by Seller. If Seller is univilling or unable to satisfy your requests, or you do not want to purchase the Property in Its disclosed and discovered condition, you have the right to cancel the agreement if you ad within specific time periods. If you do not cancel the agreement in a timely and proper manner, you may be in breach of contract. C. SELLER RIGHTS AND DUTIES: Seller is required to disclose to you material facts known to hirNher that affect the value or desirability of the Property. However, Seller may not be aware of some Property defects or conditions. Seller does not have an obligation to inspect the Property for your benefit nor is Seller obligated to repair, correct or otherwise cure known defects that are disclosed to you or previously unknown defects that are discovered by you or your inspectors during escrow. The purchase agreement obligates Seller to make the Property available to you for Investigations. D. BROKER OBLIGATIONS: Brokers do not have expertise In all areas and therefore cannot advise you on many items, such as soil stability, geologic or environmental conditions, hazardous or illegal controlled substances, structural conditions of the foundation or other Improvements, or the condition of the roof, plumbing, heating, air conditioning, electrical, sewer, septic, waste disposal, or other system. The only way to accurately determine the condition of the Property is through an inspection by an appropriate professional selected by you. If Broker gives you referrals to such professionals, Broker does not guarantee their performance. You may select any professional of your choosing. In sales involving residential dwellings with no more than four units, Brokers have a duty to make a diligent visual inspection of the accessible areas of the Property and to disclose the results of that inspection. However, as some Property defects or conditions may not be discoverable from a visual inspection, it is possible Brokers are not aware of them. If you have entered into a written agreement with a Broker, the specific terms of that agreement will determine the nature and extent of that Broker's duty to you. YOU ARE STRONGLY ADVISED TO INVESTIGATE THE CONDITION AND SUITABILITY OF ALL ASPECTS OF THE PROPERTY. IF YOU DO NOT DO SO, YOU ARE ACTING AGAINST THE ADVICE OF BROKERS. E. YOU ARE ADVISED TO CONDUCT INVESTIGATIONS OF THE ENTIRE PROPERTY, INCLUDING, BUT NOT LIMITED TO THE FOLLOWING: 1. GENERAL CONDITION OF THE PROPERTY,.ITS SYSTEMS AND COMPONENTS: Foundation, roof, plumbing, heating, air conditioning, electrical, mechanical, security, pootlspa, other structural and non-structural systems and components, fixtures, built-in appliances, any personal property included In the sale, and energy efficiency of the Property. (Structural engineers are best suited to determine possible design or construction defects, and whether Improvements are structurally sound.) 2. SQUARE FOOTAGE, AGE, BOUNDARIES: Square footage, room dimensions, lot size, age of improvements and boundaries. Any numerical statements regarding these Items are APPROXIMATIONS ONLY and have not been verified by Seller and cannot be verified by Brokers. Fences, hedges, walls, retaining walls and other natural or constructed barriers or markers do not necessarily identify true Property boundaries. (Professionals such as appraisers, architects, surveyors and civil engineers are best suited to determine square footage, dimensions and boundaries of the Property.) 3. WOOD DESTROYING PESTS: Presence of, or conditions likely to lead to the presence of wood destroying pests and organisms and other Infestation or infection. Inspection reports covering these items can be separated into two sections: Section 1 identifies areas where infestation or infection is evident. Section 2 identifies areas where there are conditions likely to lead to Infestation or infection. A registered structural past control company is best suited to perform these inspections. 4. SOIL STABILITY: Existence of fill or compacted soil, expansive or contracting soil, susceptibility to slippage, settling or movement, and the adequacy of drainage. (Geotechnical engineers are best suited to determine such conditions, cai and remedies.) The copyright laws of the United States (Title 17 U.S. Code) forbid the /r reproduction reproduon of this form, or any portion thereof, by photocopy Buyers Intials't ) ( ) machine or any other means, including facsimile or computerized formats. Sellers Initials ) Copyright a 1991-2004, CALIFORNIA ASSOCIATION OF REALTORS®, INC. ALL RIGHTS RESERVED. R"—.e ed by bate BIA-A REVISED 10102 (PAGE 1 OF 2) Broker. La Qulnia Palms Real Estate Co 61.001 Eisenhower Drive La Quints , CA 92253 291 Property Address: 7alss ohms at. , Le Ontata, Ca. 92253 Date: amv 26. on" & ROOF: Present condition, age, leaks, and remaining useful life. (Roofing contractors are best suited to determine these conditions.) 8. POOL/SPA: Cracks, leaks or operational problems. (Pool contractors are best suited to deternine these conditions.) 7. WASTE DISPOSAL: Type, size, adequacy, capacity and condition of sewer and septic systems and components, connection to sewer, and applicable fees. 8. WATER AND UTILITIES; WELL SYSTEMS AND COMPONENTS: Water and utility availability, use restrictions and costs. Water quality, adequacy, condition, and performance of well systems and components. 8. ENVIRONMENTAL HAZARDS: Potential environmental hazards, including, but not limited to, asbestos, lead -based paint and other lead contamination, radon, methane, other gases, fuel oil or chemical storage tanks, contaminated soil or water, hazardous waste, waste disposal sites, electromagnetic fields, nuclear sources, and other substances, materials, products, or conditions (including mold (airbome, toxic or otherwise), fungus or similar contaminants). (For more information on these items, you may consult an appropriate professional or read the booklets 'Environmental Hazards: A Guide for Homeowners, Buyers, Landlords and Tenants: 'Protect Your Family From Lead in Your Home' or both.) 10. EARTHQUAKES AND FLOODING: Susceptibility of the Property to earthquaketseismic hazards and propensity of the Property to flood. (A Geologist or Geotechnical Engineer is best suited to provide information on these conditions.) 11. FIRE, HAZARD AND OTHER INSURANCE: The availability and cost of necessary or desired insurance may vary. The location of the Property in a seismic, flood or fire hazard zone, and other conditions, such as the age of the Property and the claims history of the Property and Buyer, may affect the availability and need for certain types of insurance. Buyer should explore insurance options early as this information may affect other decisions, Including the removal of loan and inspection contingencies. (An insurance agent is best suited to provide information on these conditions.) 12. BUILDING PERMITS, ZONING AND GOVERNMENTAL REQUIREMENTS: Permits, inspections, certificates, zoning, other governmental limitations, restrictions, and requirements affecting the current or future use of the Property, its development or size. (Such information Is available from appropriate govemmenal agencies and private Information providers. Brokers are not qualified to review or interpret any such information.) 13. RENTAL PROPERTY RESTRICTIONS: Some titles and counties impose restrictions that limit the amount of rent that can be charged, the maximum number of occipants; and the right of a landlord to terminate a tenancy. Deadboh or other locks and security systems for doors and windows, including window bars, should be examined to determine whether they satisfy legal requirements. (Government agendas can provide Information about these restrictions and other requirements.) 14,SECURITY AND SAFETY: State and local Law may require the installation of barriers, access alarms, self -latching mechanisms and/or other measures to decrease the risk to children and other persons of existing swimming pools and hot tubs, as well as various fire safety and other measures conceming other features of the Property. Compliance requirements differ from city to city and county to county. Unless specifically agreed, the Property may not be in compliance with these requirements. (Local government agencies can provide information about these restrictions and other requirements.) 16. NEIGHBORHOOD, AREA, SUBDIVISION CONDITIONS; PERSONAL FACTORS: Neighborhood or area conditions, including schools, proximity and adequacy of law enforcement, crime statistics, the proximity of registered felons or offenders, fire protection, other government services, availability, adequacy and cost of any speed -wired, wireless Internet connections or other telecommunications or other technology services and installations, proximity to commercial, industrial or agricultural activities, existing and proposed transportation, construction and development that may affect noise, view, or traffic, airport noise, noise or odor from any source, wild and domestic animals, other nuisances, hazards, or circumstances, protected species, wetland properties, botanical diseases, historic or other governmentally protected sites or improvements, cemeteries, facilities and condition of common areas of common interest subdivisions, and possible lack of compliance with arry governing documents or Homeowners' Association requirements, conditions and influences of significance to certain cultures and/or religions, and personal needs, requirements and preferences of Buyer. Buyer and Seller acknowledge and agree that Broker. (0 Does not decide what price Buyer should pay or Seller should accept; (Icy Does not guarantee the condition of the Property; (Ill) Does not guarantee the performance, adequacy or completeness of Inspections, services, products or repairs provided or made by Seller or others; (Iv) Does not have an obligation to conduct an inspection of common areas or areas oft the site of the Property; IV) Shall not be responsible for identifying defects on the Property, in common areas, or offsite unless such defects are visually observable by an inspection of reasonably accessible areas of the Property or are known to Broker, (vl) Shall not be responsible for inspecting public records or permits concerning the title or use of Property; (vlp Shall not be responsible for identifying the location of boundary lines or other items affecting tale; (vii0 Shall not be responsible for verifying square footage, representations of others or Intimation contained In Investigation reports, Multiple Luting Service, advertisements, flyers or other promotional materiel; (Ix) Shall not be responsible for providing legal or tax advice regarding any aspect of a transaction entered Into by Buyer or Seller, and (a) Shall not be responsible for providing other advice or Information that exceeds the knowledge, education and experience required to perform real estate licensed activity. Buyer and Seger agree to seek legal, tax, insurance, title and other desired assistance from appropriate professionals. By signing MBIa er and 3eJipr a acknowledge that they have read, understand, accept and have received a Copy of this Advisoencouy` d t d it S� m� � a�, s 1 Buyer Sign re Date Buyer ignature f Uate The City of La Quiata T!/assas P. �rsarare, C! f� .//%g.✓,ajF� a7 N Seller Signature Date Seller 51griature Date THIS FORM HAS BEEN APPROVED BY THE CALIFOF ADEQUACY OF ANY PROVISION IN ANY SPECIR TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX AD\ This form Is avallable for use by to emus real estate In which may be used only by members of the NATIONAL A i Puhfaladad%U$11 isd$b' „ REAL ESTATE BUSINESS SERVICES, INC,I a rdtr eAsodibnof Se 625SwthVryplAven.LoNpW,Cerbmis9>0 BIA-A REVISED'1=2 (PAGE 2 OF 2) tS®(C.A.R.). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE E PROFESSIONAL the user as a REALTORO. REALTORS, Is a regstared cdlsolive mambership mark q subscribe to Its Code of Ethics. sY� ReWew)d by Data _ makxouwe arwsasm BUYER'S INSPECTION ADVISORY (BIA-A PAGE 2 OF 2) Milm Fuchtr 4 pica vo 292 C A L I F O N I A STATEWIDE BUYER AND SELLER ADVISORY = ASS O C I. TI O N (This Form Does Not Replace Local Condition Disclosures. I�r OF RE A LT O RS ®Additional Addenda May Be Attached to This Advisory. See Paragraph 44) (CAR. Form SBSA, Revised 11110) BUYER RIGHTS AND DUTIES: • The physical condition of the land and improvements being purchased are not guaranteed by Seller or Brokers. • You should conduct thorough investigations of the Property both personally and with appropriate professionals. • If professionals recommend further inspections, you should contact qualified experts to conduct such inspections. • You should retain your own professional even if Seller or Broker has provided you with existing reports. • You should read all written reports given to you and discuss those reports with the persons who prepared them. • You have the right to request that the Seller make repairs or corrections or take other actions based on inspections or disclosures, but the Seller is not obligated to make any such repairs, Corrections or other requested actions. • If the Seller is unwilling or unable to satisfy your requests, and you act within certain time periods, you may have the right to cancel the Agreement (the Purchase Agreement and any Counter Offer and Addenda together are the "Agreement"). If you cancel outside of these periods, you may be in breach of the Agreement and your deposit might be at risk. • The terms of the purchase agreement and any counter offers and addenda establish your rights and responsibilities. YOU ARE STRONGLY ADVISED TO INVESTIGATE THE CONDITION AND SUITABILITY OF ALL ASPECTS OF THE PROPERTY. IF YOU DO NOT DO SO, YOU ARE ACTING AGAINST THE ADVICE OF BROKERS. SELLER RIGHTS AND DUTIES: • You have a duty to disclose material facts known to you that affect the value or desirability of the Property. • You are obligated to make the Property available to the Buyer and have utilities on for inspections as allowed by the Agreement • This form is not a substitute for completing a Real Estate Transfer Disclosure Statement, if required, and any other property -specific questionnaires or disclosures. • The terms of the Agreement establish your rights and responsibilities. BROKER RIGHTS AND DUTIES: • Brokers do not have expertise in all areas and matters affecting the Property or your evaluation of it • For most sales of residential properties with no more than four units, Brokers have a duty to make a reasonably competent and diligent visual inspection of the accessible areas of the Property and disclose to you material facts or defects that the inspection reveals. • Many defects and conditions may not be discoverable by a Broker's visual inspection. • If Brokers give a referral to another professional, Brokers do not guarantee that person's performance. You may select any professional of your own choosing. • Any written agreement between a Broker and either Buyer or Seller or both establishes the rights and responsibilities of those parties. 1. INSPECTIONS: Buyer and Seller are advised that Buyer has the right to obtain various inspections of the Property under most residential purchase agreements. Buyer is advised to have the Property inspected by a professional property inspection service within Buyers inspection contingency period. A licensed building contractor or other professional may perform these services. The inspector generally does not look behind walls or under carpets, or take equipment apart. Certain items on the Property, such as chimneys and spark arresters, plumbing, heating, air conditioning, electrical wiring, pool and spa, septic system, well, roof, foundation and structural items may need to be inspected by another professional, such as a chimney sweep, plumber, electrician, pool and spa service, septic or well company or roofer. A general physical inspection typically will not test for mold, wood destroying pests, lead -based paint, radon, asbestos and other environmental hazards, geologic conditions, age, remaining useful life or water -tightness of roof, cracks, leaks or operational problems associated with a pool or spa or connection of the Property to a sewer system. If Buyer wants further information on any aspect of the Property, Broker recommends that Buyer have a discussion with the professional property inspector and that Buyer hire an appropriate professional for the area of concern to Buyer. Brokers do not have expertise in these areas. Brokers do not verity the results of any such inspection or guarantee the performance of any such Inspector or service. Any election by Buyer to waive the right to a physical inspection of the Property or to rely on somebody other than an appropriate professional is against the advice of Brokers. Not all Inspectors are licensed and licenses are not available for all types of inspect y/prtty�/actiivities. Buyers I ht la l�.�J I Beliefs InlOals (�� 1 pydgM The oolaws of the Unwed States (Title 17 U.S. Coda) krbltl the unauthorized mpmduetlon of this form, or any person #We&, by pholompy machine ar any o0wr means, including Facsimile or computeamd formats. Copyright O 2004-2010, CAUFORNIA ASSOCIATION OF REALTORSS, INC. ALL RIGHTS RESERVED. ReNewed by Dale rawx«rx SBSA REVISED 11r10 (PAGE 1 OF 10) «wxrvwfr STATEWIDE BUYER AND SELLER ADVISORY SBSA PAGE 1 OF 10) Agent: Bruce Cathcart Phorle:760.594A1D4 Fax: 760.664.03" Prepared using xlpPormG, software Broker. La Ouinta Palms Real Estate Co 51-001 Eisenhower Drive La Oulnta _ _ , CA 92263 « 293 2. SQUARE FOOTAGE, LOT SIZE, BOUNDARIES AND SURVEYS: Buyer and Seller are advised that only an appraiser or land surveyor, as applicable, can reliably confirm square footage, lot size, Property comers and exact boundaries of the Property. Representations regarding these items that are made in a Multiple Listing Service, advertisements, and from property tax assessor records are often approximations, or based upon inaccurate or incomplete records. Fences, hedges, walls or other barriers may not represent actual boundary lines. Unless otherwise specified by Broker in writing, Brokers have not verified any such boundary lines or any representations made by Seller or others. Brokers do not have expertise in this area Standard titre insurance does not insure the boundaries of the Property. If Buyer wants information about the exact square footage, lot size or location of Property comers or boundaries, Broker recommends that Buyer hire an appraiser or licensed surveyor to investigate these matters or to prepare a survey of the property during Buyer's inspection contingency period. 3. SOIL AND GEOLOGIC CONDITIONS: Buyer and Seller are advised that real estate in California is subject to settling, slippage, contraction, expansion erosion, subsidence, earthquakes and other land movement The Property may be constructed on fill or Improperly compacted soil and may have inadequate drainage capability. Any of these matters can cause structural problems to improvements on the Property. Civil or geo-technical engineers are best suited to evaluate soil stability, grading, drainage and other soil conditions. Additionally, the Property may contain known or unknown mines, mills, caves or wells. Brokers do not have expertise in this area. If Buyer wants further information, Broker recommends that Buyer hire an appropriate professional. Not all Inspectors are licensed and licenses are not available for all types of inspections. 4. GEOLOGIC HAZARDS: Buyer and Seller are advised that California has experienced earthquakes in the past, and there is always a potential of future earthquakes. Damage caused by an earthquake may not be discoverable by a visual inspection of Buyer(s) or Broker(s). Inspection by a licensed, qualified professional is strongly recommended to determine the structural integrity and safety of all structures and improvements on the Property. If the Property is a condominium, or located in a planned unit development or in a common interest subdivision, Buyer is advised to contact the homeowners association about earthquake repairs and retrofit work and the possibility of an increased or special assessment to defray the costs of earthquake repairs or retrofit work. Buyer is encouraged to obtain and read the booklet entitled, "The Homeowner's Guide to Earthquake Safety." In most cases a questionnaire within the booklet must be completed by Seller and the entire booklet given to the Buyer if the Property was built prior to 1960. If the Property was built before 1975, and contains structures constructed of masonry or precast (tilt up) concrete walls, with wood frame floors or roof, or if the building has unreinforced masonry walls, then Seller must provide Buyer a pamphlet entitled "The Commercial Property Owners Guide to Earthquake Safety." Many areas have a wide range of geologic problems and numerous studies have been made of these conditions. Some of this information is available for public review at city and county planning departments. Buyer is encouraged to review the public maps and reports and/or obtain a geologist's inspection report Brokers do not have expertise in this area. Buyer may be able to obtain earthquake insurance to protect their Interest in the Property. Sellers who agree to provide financing should also consider requiring Buyers to obtain such insurance naming Seller(s) as insured lien holder(s). 5. ENVIRONMENTAL HAZARDS: Buyer and Seller are advised that the presence of certain kinds of organisms, toxins and contaminants, including, but not limited to, mold (airborne, toxic or otherwise), fungi, mildew, lead -based paint and other lead contamination, asbestos, formaldehyde, radon, pcb's, methane, other gases, fuel oil or chemical storage tanks, contaminated soil or water, hazardous waste, waste disposal sites, electromagnetic fields, nuclear sources, urea formaldehyde, or other materials may adversely affect the Property and the health of individuals who live on or work at the property as well as pets. If Buyer wants further information, Buyer is advised and Broker(s) recommends, that Buyer have the Property inspected for the existence of such conditions and organisms, and conditions that may lead to their formation. Not all inspectors are licensed and licenses are not available for all types of inspection activities. Buyer is also advised to consult with appropriate experts regarding this topic during Buyers inspection contingency period. Brokers do not have expertise in this area. Broker recommends that Buyer and Seller read the booklets titled, "Residential Environmental Hazards: A Guide for Homeowners, Homebuyers, Landlords and Tenants," and "Protect Your Family From Lead In Your Home." 6. EPA's LEAD -BASED PAINT RENOVATION, REPAIR AND PAINTING RULE: The new rule requires that contractors and maintenance professionals working in pre-1978 housing, child care facilities, and schools with lead -based paint be certified; that their employees be trained; and that they follow protective work practice standards. The rule applies to renovation, repair, or painting activities affecting more than six square feet of lead -based paint In a room or more than 20 square feet of lead -based paint on the exterior. Enforcement of the rule begins October 1, 2010. See the EPA website at www.epa.gov/lead for more information. Buyer and Seller are advised to consult an appropriate professional. 7. FORMALDEHYDE: Formaldehyde is a substance known to the State of California to cause cancer. Exposure to formaldehyde me caused by materials used in the construction of homes. The United States Environmental Buyers Initials r Setleta IniOals ()')'t� Copydi;MO 2004-2010, CALIFORNIA ASSOCIATION OF REALTORSO, INC. Reviewetl by DaEe Mona" SBSA REVISED 11110 (PAGE 2 OF 10) meonuxm STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 2 OF 10) Mike FiuLef 4 plex M.: 294 Protection Agency, the California Air Resources Board, and other agencies have measured the presence of formaldehyde in the indoor air of select homes in California. Levels of formaldehyde that present a significant cancer risk have been measured in most homes that were tested. Formaldehyde is present in the air because it Is emitted by a variety of building materials and home products used in construction. The materials include carpeting, pressed wood products, insulation, plastics, and glues. Most homes that have been tested elsewhere do contain formaldehyde, although the concentrations vary from home to home with no obvious explanation for the differences. One of the problems is that many suppliers of building materials and home products do not provide information on chemical Ingredients to builders. Buyers may have further questions about these issues. Buyer is advised to consult with appropriate experts regarding this topic during Buyer's investigation period. Brokers do not have expertise in this area. Broker(s) recommend that Buyer and Seller read the booklet titled "Resldential Environmental Hazards: A Guide for Homeowners, Homebuyers, Landlords and Tenants." S. MOLD: Buyer and Seller are advised that the presence of certain kinds of mold, fungi, mildew and other organisms, sometimes referred to as `toxic mold" (collectively °Mold°), may adversely affect the Property and the health of individuals who live on or work at the Property as well as pets. Mold does not affect all people the same way, and may not affect some people at all. Mold may be caused by water leaks or other sources of moisture such as, but not limited to, flooding, and leaks in windows, pipes and roof. Seller is advised to disclose the existence of any such conditions of which he or she is aware. Buyer should carefully review all of Seller's disclosures for any indication that any of these conditions exist It is, however, possible that Mold may be hidden and that Seller is completely unaware of its existence. In addition, Mold is often undetectable from a visual inspection, a professional general property inspection and even a structural pest control inspection. Brokers do not have expertise in this area. If Buyer wants further information, Broker recommends that Buyer have the Property tested for Mold by an environmental hygienist or other appropriate professional during Buyer's inspection contingency period. Not all inspectors are licensed and licenses are not available for all types of inspection activities. 9. WATER INTRUSION: Buyer and Seller are advised that many homes suffer from water intrusion or leakage. The causes of water intrusion are varied, and can include defective construction, faulty grading, deterioration of building materials and absence of waterproof barriers. Water intrusion can cause serious damage to the Property. This damage can consist of wood rot, mold, mildew and even damage to the structural integrity of the Property. The cost of repairing and remediating water intrusion damage and its causes can be very significant The existence and cause of water intrusion is often difficult to detect Because you, your Broker or a general home inspector cannot visually observe any effects of water intrusion, Buyer and Seller should not assume that such intrusion does not exist Broker recommends that Buyer have the Property inspected for water intrusion by an appropriate professional. Brokers do not have expertise in this area. 10. SEPTIC SYSTEMS: Buyer and Seller are advised that a property may be served by one or more septic systems even though adjoining properties are connected to a sewer line. Buyer and Seiler are also advised that some septic tanks and systems may have been abandoned or have leaked into ground water sources. Buyer Is advised to contact the appropriate government agency to verify that the Property is connected to a sewer or served by a septic system. If the Property is served by a septic system, it may consist of a septic tank, cesspool, pits, leach lines or a combination of such mechanisms ("collectively, System"). No representation or warranty is made by Seller or Broker concerning the condition, operability, size, capacity or future expansion of a System, nor whether a System is adequate for use by the intended occupants of the Property. A change in the number of occupants or the quantity, composition or methods of depositing waste may affect the efficiency of the System. In addition, the amount of rainfall and ground water table may also affect the efficiency of the System. Many factors including, but not limited to, natural forces, age, deterioration of materials and the load imposed on a System can cause the System to fail at any time. Broker recommends that Buyer obtain an independent evaluation of any System by a qualified sanitation professional during Buyer's inspection contingency period. Brokers do not have expertise in this area. Buyer should consult with their sanitation professional to determine if their report includes the tank only, or other additional components of the System such as pits and leach fields. Not all inspectors are licensed and licenses are not available for all types of inspection activities. In some cases, Buyers lender as well as local government agencies may require System inspection. System -related maintenance costs may include, but not be limited to, locating, pumping or providing outlets to ground level. Brokers are unable to advise Buyer or Seller regarding System -related issues or associated costs, which may be significant If Buyer and Seller agree to obtain a System inspection, Buyer and Seller are cautioned that the inspection cost may include, but not be limited to, the costs of locating, pumping or providing outlets to ground level. Buyers Initials (l ( ) Ballets Initials CopyripM 4, 2004-2010, CALIFORNIA ASSOCIATION OF REACTORS®, INC. Reviewed by oars $BSA REVISED 11110 (PAGE 3 OF 10) STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 3 OF 10) bSke Fiscim4 plex 295 11. WELL AND WATER SYSTEM): Buyer and Seller are advised that the Property may be served by one or more water wells, springs, or private community or public water systems. Any of these private or public water systems may contain bacteria, chemicals, minerals and metals, such as chromium. Welts) may have been abandoned on the Property Buyer is advised to have both the quality and the quantity, of water evaluated, and to obtain an analysis of the quality o any domestic and agricultural water in use, or to be used at the Property, from whatever source. Water quality tests can include not only tests for bacteria, such as coliform, but also tests for organic and inorganic chemicals, metals mineral content and gross alpha testing for radioactivity. Broker recommends that Buyer consult with a licensed, qualified well and pump company and local government agency to determine whether any well/spring or water system will adequately serve Buyer's intended use and that Buyer have a well consultant perform an extended well output test for this purpose. Water well or spring capacity, quantity output and quality may change at any time. There are no guarantees as to the future water quality, qua or duration of any well or spring. If Buyer wants further information, Brokers) recommend that Buyer obtain an inspe on of the condition, age, adequacy and performance of all components of the well/spring and any water system during Buyer's inspection contingency period. Brokers do not have expertise in this area. 12. WOOD DESTROYING PESTS: Buyer and Seller are advised that the presence of, or conditions likely to lead to the presence of infestation or infection of wood destroying pests and organisms may adversely affect the Property. Inspection reports covering these items can be separated into two sections: Section 1 identifies areas where Infestation or infection is evident. Section 2 identifies areas where there are conditions likely to lead to infestation or infection. Brokers do not have expertise in this area. If Buyer wants further information, Buyer is advised and Broker recommends that Buyer have the Property inspected for the existence of such conditions and organisms, and conditions that may lead to their formation, by a registered structural pest control company during Buyer's inspection contingency period. 13. EASEMENTS, ACCESS AND ENCROACHMENTS: Buyer and Seller are advised that confirming the exact location of easements, shared or private driveways or roadways, and encroachments on or to the Property may be possible only by conducting a survey. There may be unrecorded easements, access rights, encroachments and other agreements affecting the Property that may not be disclosed by a survey. Representations regarding these items that are made in a Multiple Listing gervice or advertisements, or plotted by a title company are often approximations, or based upon inaxurete or incomplete records. Unless otherwise specified by Broker in writing Brokers have not verified any such matters or any representations made by Sellers) or others. if Buyer wants further intiormation, Buyer is advised and Brokers) recommend that Buyer hire a licensed surveyor during Buyers inspection contingency period. Brokers do not have expertise in this area. 14. EARTHQUAKE FAULT ZONES AND SEISMIC HAZARD ZONES: Buyer and Seller are advised that California Public Resources Code Sections 2622 and 2696 require the delineation and mapping of "Earthquake Fault Zones" along known active faults and "Seismic Hazard Zones" in California. Affected cities and counties must regulate certain development projects within these zones. Construction or development on affected properties may be subject to the findings of a geological report prepared byy a registered Califomia geologist Generally, Seller must disclose if the Property is in such a zone and can use a researoh company to aid in the process; If Buyer walls further information, Broker recommends that during Buyers inspection contingency period, Buyer make independent in uiries with such researoh companies or with appropriate govemment agencies containing the use and Improvement of the Property. Brokers do not have expertise in this area. Buyer is advised that there is a potential for earthquakes and seismic hazards even outside designated zones. 15. FIRE HAZARDS: Buyer and Seller are advised that fires annually cause the destruction of thousands of homes. Due to varied climate and topography, certain areas have higher risks of fires than others. Certain types of materials used in home construction create a greater risk of fire than others. If the Property is located within a State Fire Responsibility Area or a Very High Fire Hazard Zone, general Seller must disclose that fact to Buyer under California Public Resources Code Section 4136 and California Govemment ode Sections 51178 and 51183.6, and may use a research company to aid in the process. If Buyer wants further information Broker recommends that, during Buyer's inspection contingency period, Buyer contact the local fire department and buyer's insurance agent regarding the risk of fire. Brokers do not have expertise in this area. Buyer is advised that there is a potential for fires even outside designated zones. 16. FLOOD HAZARDS: Buyer and Seller are advised that if the Property is located within a Special Flood Hazard Area, as designated by the Federal yy errggency Management Agency (FEMA , or an area of Potential Flooding pursuant to Califomia Government Code Section 8 89.3 generally Seller must disclose this fact to Buyer and Mily use a research company to aid in the process. The National Flood Insurance Program was established to identify all flood plain areas and establish flood -risk zones within those areas. The pro ram mandates flood insurance for properties within high -risk zones if loans are obtained from a federally -regulated financiafinstitution or are insured by any agen of the United States Government. The extent of coverage and costs may vary. If Buyer wants further information, Broker s) recommend that Buyer consult his or her lender and/or insurance agent during Buyer's inspection contingency period. Brokers do not have expertise in this area. Buyer is advised that there is a potential for flooding even outside designated zones. 17. ZONE MAPS MAY CHANGE: Maps that designate, among other things, Earthquake Fault Zones Seismic Hazard Zones, State Fire Responsibility Areas, Very High Fire Hazard Zones, Special Flood Hazard Areas, and Ootential Flooding Areas are occasionally redrawn by the applicable Government Agenvy. Properties that are currently designated in a specified zone or area could be removed and properties that are not now designated in a specified zone or area could be placed in one or more such zones or areas in the future. A property owner may dispute a FEMA flood hazard location by submitting an applination to FEMA Buyers Initials ( ,VrJfl ) t 1 Sellers Initials (MR Copyright 020D4-2010, CALIFORNIA ASSOCIATION OF REALTORSe, INC. Reviewed by — Date omm SBSA REVISED 11110 (PAGE 4 OF 10) STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 4 OF 10) Mike Fischer 4 pI= ,. 296 ZING PERMITS, ZONING AND CODE COMPLIANCE: Buyer and Seller are advised that any Structure on the including the original structure and any addition, modification, remodel or improvement may have been built rmits, not according to building codes, or in violation of zoning laws. Further, even if such structure was built to the then existing code or zoning requirement it may not be In compl'lance with current building standards or g. It is also possible that bcel law may not permit structures that now exist to be rebuilt in the event of damage or i. Buyer is advised to check with appropriate government agencies or third parly professionals to verify permits equirements and the effect of such requirements on current and future use of the Property, its development and far wants further information, Brokers) recommend that Buyer discuss the issue with an appropriate professional sea inspection contingency period. Brokers do not have expertise in this area. 19. VIEWS: Buyer and Seller are advised that present views from the Propertrtyy may th be affected by future development or growth of trees and vegetation on adjacent properties and any other properly within e line of sight of the Property. Broker makes no representation regarding the preservation of existing views. If Buyer wants further information, Broker(s) recommend that Buyer review covenants, conditions and restrictions, if any, and contact neighboring property owners, government agencies and homeowner associations, if any, during Buyer's inspection contingency period. Brokers do not gave expertise in this area. 20. FUTURE REPAIRS, REPLACEMENTS AND REMODELS: Buyer and Seller are advised that replacement or repairs of certain systems or rebuilding or remodeling of all or a portion of the Property may trigger requirements that homeowners comply with laws and regulations that either come into effect after Close of Escrow or are not required to be complied with until the replacement repair, rebuild or remodel has occurred. Permit or code requirements or building standards may change after Close of Escrow, resulting in Increasing costs to repair existing features. In particular, changes to state and federal ener y efficiency re ulations impact the installation, replacement and some repairs of heating and air conditioning units (HVAC,. Federal regulations now require manufacturers of HVAC units to produce only units meeting a new higher Seasonal Energy Efficiency Rating (SEE. This will likely impact repairs and replacements of existing HVAC units. State regulations now require that when installing or replacing HVAC units, with some exceptions, duct work must be tested for leaks. Duct work leaking more than 15 percent must be repaired to reduce leaks. The average existing dud work typically leaks 30 percent More information is available at the California Energy Commission's website http://www.energy.ca.gov/tiffe24/Changeout. Home warranty policies may not cover such inspections or repairs. If Buyer wants further information, Broker recommends that Buyer discuss the issue with an appropriate professional during Buyer's insoecion continaencv Deriod. Brokers do not have exoerbse in this area. 21. GOLF COURSE DISCLOSURES: Buyer and Seller are advised that if the Property is located adjacent to or near a golf course the following may apply: (i) Stray golf balls — Any residence near a golf course may be affected by errant golf balls, resulting in personal injury or destruction io property. Golfers may attempt to trespass on adjacent properly to retrieve golf balls even though the project restrictions may expressly prohibit such retrieval. (II) Noise and lighting — r e noise of lawn mowers irrigation systems and utility vehicles may create disturbances to homeowners. Maintenance operations may occur in the early morning hours. Residents Irving near the clubhouse may be affected by extra lighting, noise, and traffic (III) Pesticides and fertilizer use — A golf course may be heavily fertilized, as well as subjected to other chemicals during certain periods of the year. (iv) Irrigation system — Golf course sprinkler systems may cause water overspray upon adjacent property and structures. Also the irrigation system of a golf course may use reclaimed and retreated wastewater. (v) Golf carts — Certain lots may be affected more than others by the use of golf carts. Lots adjacent to a tee or putting green may be subject to noise disturbances and loss of privacy. (vi) Access to golf course from residences — it is likely that most residences will not have direct access from their lots to the golf course. The project restrictions may disclaim any right of access or other easements from a residents lot onto the golf course. (vii) View obstruction — Residents living near a golf course may have their views over the golf course impacted by maturing trees and landscaping or by changes to the course's configuration. 22. SCHOOLS: Buyer and Seller are advised that children living in the Property may not, for numerous reasons, be permitted to attend the school nearest the Property. Various factors including, but not limited to, open enrollment policies, busing overcrowding and class size reductions may affect which public school serves the Property. School district boundaries are subject to change. Buyer is advised to verify whether the Property is now, and at the Close of Escrow will be, in the school district Buyer understands it to be in and whether residing in the Properly entitles a person to attend any specific school in which that Buyer is interested. Broker(s) recommend that Buyer contact the local school or school district for additional information during Buyer's Inspection contingency period. Brokers do not have expertise in this area. 23. NEIGHBORHOOD NOISE SOURCES: Buyer and Seller are advised that even If the Property is not in an Identified airport noise influence area, the Property may still be subject to noise and air disturbances resulting from airplanes and other aircraft, commercial or military or both, flying overhead. Other common sources of noise include nearby commercial districts, schools, traffic on streets, highways and freeways, trains and general neighborhood noise from people, dogs and other animals. Noise levels and types of noise that bother one parson may be acceptable to others. Buyer Is advised to satisfy him/herself with regard to any sources of and amounts of noise at different times of day and night Brokers do not have expertise in this area. ANIMALS: Buyer and Seller are advises other pets and animals at the Property. Odor of time and then become active because of hi Icing carpets or other cleaning methods. Pet I Additionally, an animal may have had fleas, I removed. If Buyer wants further information, mgiglial during Buyer's inspection contingency BuyersInitials (� Copyright 020(042��010CAIJ��ORN' W( I ASSOCIATION OF REACTORS®, INC. SISSA REVISED 11110 (PAGE 5 OF 10) that the current or previous owners) may have had from animal urine or other contamination may be dormant t, humidity or other factors and might not be eliminated by ne and feces Can also damage hardwood floors and other •ks and other pests that remain on the Property after the iroker(s) recommend that Buyer discuss the issue with an Sellers Millais Reviewed by STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 5 OF 10) Dale 4"r Mom Fischer 4 p1m » 297 25. SWIMMING POOL, SECURITY AND SAFETY: Buyer and Seller are advised that state and local Law may require the installation of barriers, anti -entrapment grates, access alarms, self -latching mechanisms and/or other measures to decrease the risk to children and other persons of existing swimming pools and hot tubs as well as various fire safety and other measures concerning other features of the Property. Compliance requirements differ from city to city and county to county. Unless specifically agreed, the Property may not be in compliance with these requirements. Brokers do not have expertise in this area. If Buyer wants further information, Broker(s) recommend that Buyer contact local government agencies about these restrictions and other requirements. 26. RETROFIT: Buyer and Seller are advised that state and local Law may require the installation of operable smoke detectors, bracing or strapping of water heaters, and completion of a corresponding written statement of compliance that is delivered to Buyer. Some city and county governments may impose additional retrofit standards, Including, but not limited to, installing low -flow toilets and showerheads, gas shutoff valves, and tempered glass. Brokers do not have expertise in this area. Broker(s) recommend that Buyer and Seller consult with the appropriate government agencies, inspectors, and other professionals to determine the retrofit standards for the Property, the extent to which the Property complies with such standards, and the costs, N any, of compliance. 27. WATER SHORTAGES AND CONSERVATION: Buyer and Seller are advised that the Property may be located in an area that could experience water shortages. The policies of local water districts and the city or county in which the Property is located can result in the occurrence of any or all of the following: (1) limitations on the amount of water available to the rop1 (II) restrictions on the use of water, and (III) an Increasingly graduated cost per unit of water use, Including, but not limiteddto, penalties for excess usage. For further information, Broker recommends that Buyyer contact the supplier of water to the Properly regarding the supplier s current or anticipated policies on water usage and to determine the extent to which those policies may affect Buyer's intended use of the Properly. If the Property is serviced by a private well, Buyer is advised that drought conditions and/or a low water table may make tt necessary to arrange, through a private supplier, for delivery of water to the Property. Buyers should contact water truck companies %r the costs Involved. brokers do not have expertise in this area. 28. NEIGHBORHOOD, AREA; PERSONAL FACTORS: Buyer and Seller are advised that the following may affect the Property or Buyer's intended use of it neighborhood or area conditions, including schools, proximity and adequacy of law enforcement, crime, fire protection, other government services, availability, adequacy and cost of any speedwired, wireless Internet connections or other telecommunications or other technology services and installations, proximity to medical marijuana growing or distribution locations, manufacturing, commercial, Industrial, airport or agricultural activities or military ordnance locations, existing and proposed transportation, construction, and development, any other source that may affect noise, view, tramc, or odor, wild and domestic animals, other nuisances, hazards, or circumstances, protected species, wetland properties botanical diseases, historic or other governmentally -protected sites or improvements, cemeteries conditions and Influences of significance to certain cultures and/or religions, and personal needs, requirements and preferences of Buyer. California is potentially moving toward high speed rail service between Northern and Southern California. This rail line could have an impact on the Property if it is located nearby. More information on the timing of the project and routes is available from the California Highspeed Rail Authority at jjghspeedraii.ca.gov. 29. INSURANCE: Buyer and Seller are advised that Buyer may have difficulty obtaining insurance regarding the Property if there has been a prior insurance claim affecting the Property or made by Buyer but unrelated to the Property. Seller is required by C.A R. Form RPA to disclose known Insurance claims made Burin the past five years (C.A.R. Form SPO or SSD). Sellers may not be aware of calms prior to their ownership. If Buyer wants further information, Broker(s) recommend that, during Buyer s inspection contingency period, Buyer conduct his or her own investigation for past claims. Buyer may need to obtain Seller s consent In order to have access to certain investigation reports. If the Property is a condominium, or is located in a planned unit develo merit or other common interest subdivision, Buyer and Seller are advised to determine if the individual unit is covered by the Homeowner Association insurance agents during Buyer's inspection contingency period any and all forms of other insurance or cove a or any t insurance. If Buyer does any repairs to the pro � during th Escrow or Seller remains in possession after Close of Escron recommend that Buyer and Seller each consult with their own protect them in the transaction including but not limited to: I Brokers do not have expertise in this area. that as a Ir for a limited or extended period of time, Broker(S) :e agent regarding Insurance or coverage that could property, flood, earthquake, umbrella and renter's). 30. CALIFORNIA FAIR PLAN: Buyer and Seller are advised that insurance for certain hillside, oceanfront and brush properties may be available onlyy from the California Fair Plan. This may increase the cost of insurance for such properties and coverage may be limited. Brokers) recommend that Buyer consult with Buyers own insurance agent during Buyer s inspection contingency period arding the availability of coverage under the Cal'ttomia Fair Plan and the length of time lt may take for processing of a Call mia Fair Plan applIcetion. Brokers do not have expertise in this area: 31. HISTORICAL DESIGNATION, COASTAL COMMISSION, ARCHITECTURAL, LANDSCAPE, AGRICULTURAL OR OPEN SPACE AND OTHER RESTRICTIONS ON BUILDINGS OR IMPROVEMENTS: Buyer and Seller are advised that the Property may be: (1) designated as a historical landmark, (11) protected by a historical conservan (III) subject to an architectural or landscaping review process, (Iv) within the urisdiction . of the California Coastal Commission or Buyers Initials ( )QV (_ 1 Setters Initials (V" Copyright 02004-2010, CALIFORNIAASSOCIATION OF REALTORSS, INC. 121 SSSA REVISED 111110 (PAGE 6 OF 10) Revimtel by Date u�vaxnN°°wc STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 6 OF 10) Mike Pischer4 plea .,.N 298 other government agency, or (v) subject to a contract preserving use of all or part of the Property for agriculture or open space. If the Property is so designated or within the jurisdiction of any such, or similar, government agency, then there may be restrictions on Buyer's ability to develop, remove or trim trees or other landscaping, remodel, make improvements to and build on or rebuild the Property. Broker(s) recommend that Buyer satisfy him/herself during Buyer's inspection Contingency period if any of these issues are of concern to Buyer. Brokers do not have expertise in this area. 32.1915 BOND AND MELLO-ROOS COMMUNITY AND OTHER FACILITIES DISTRICTS: Buyer and Seller are advised that the Property may be subject to an improvement bond assessment under the Improvement Bond Act of 1915 and/or a levy of a special tax pursuant to a Mello -Roos community facilities district or other district. Seller is generally required to make a good faith effort to obtain a disclosure notice from any local agency collecting such taxes and deliver such notice to Buyers. Brokers do not have expertise in this area. 33. HOMEOWNER ASSOCIATIONS AND COVENANTS, CONDITIONS AND RESTRICTIONS {"CC&Re"): Buyer and Seller are advised that if the Property is a condominium, or located in a planned unit development, or in a common Interest subdivision, there are typically restrictions on use of the Property and rules that must be followed. Restrictions and rules are commonly found in Declarations and other governing documents. Further there is likely to be a homeowner association (HOA) that has the authority to affect the Property and its use. Whether or not there is a HOA, the Property may still be subject to CC&Rs restricting use of the Property. The HOA typically has the authority to enforce the rules of the assocration, assess monetary payments (both regular monthly dues and special assessments) to provide for the upkeep and maintenance of the common areas, and enforce the rules and assessment obligations. If you fail to abide by the rules or pay monies owed to the HOA, the HOA may put a lien against your Properly. The law requires the Seller to provide the Buyer with the CC&Rs and other governing documents, as well as a copy of the HOA's current financial statement and operating budget, among other documents. Buyer is advised to carefully review all HOA documents provided by Seller and the CC&Rs, if any, and satisfy him/herself regarding the use and restrictions of the Property, the amount of monthly dues and/or assessments, the adequacy of reserves, current and past insurance coverage and claims, and the possibility of any legal action that may be taken by or against the HOA. The HOA may not have insurance or may not cover personal property belonging to the owner of the unit in the Condominium, common interest or planned unit development. See paragraph 26 for further information regarding insurance. Brokers do not have expertise in this area. 34. LEGAL ACTION: Buyer and Seller are advised that if Seller or a previous owner was involved in a legal action (litigation or arbitration) affecting the Property, Buyer should obtain and review public and other available records M arding the legal action to determine: (1) whether the legal action or any resolution of it affects Buyer and the Property, (ii if any rights against any parties involved in the legal action survive the legal action or have been terminated or waived as a result of the legal action, whether or not involving the same issue as in the legal action, and (III) if any recommendations or requirements resulting from the legal action have been fulfilled and, If so, that Buyer is satisfied with any such action. Buyer should seek legal advice regarding these matters. 35. COMMUNITY ENHANCEMENT AND PRIVATE TRANSFER FEES: Buyer and Seller are advised that some areas or communities may have enhancement fees or user -type fees, or private transfer taxes and fees, over and above any stated fees. Private transfer fees: (1) may last for a fixed period of time or in perpetuity, (ii) are typically calculated as a percentage of the sales price, and (III) may have private parties, charitable organizations or interesf-based groups as their recipients who may use the funds for social issues unrelated to the property. Brokers do not have expertise in this area. 36. GENERAL RECALLIDEFECTIVE PRODUCT/CLASS ACTION INFORMATION: Buyer and Seller are advised that government entities and manufacturers may at any time issue recall notices and/or warnings about products that may be present in the Property, and that these notices or warnings can change. The following nonexclusive, non -exhaustive list contains examples of recalled/defective products/class action information: horizontal furnaces, Whirlpool Microwave Hood Combination; RE-ConBuilding products roof tiles; Central Sprinkler Company Fire Sprinklers; Robert Shaw Water Heater Gas Control Valves; Trex Decking; water heaters; aluminum wiring; galvanized, abs, polybutylene and copper pipe; and dry wall manufactured in China. There is no single, all-inclusive source of information on product recalls, defective products or class actions; however, the U.S. Consumer Product Safety Commission (CPSC) maintains a website that contains useful information. If Buyer wants further information regarding the items listed above, Broker(s) recommend that Buyer review the CPSC website at htto://www.gSC.cov during Buyer's inspection contingency period. One source on the CPSC website is the Recalled Product Safety News where Buyer can search by product type or product name. Another source would include a search using the various search engines on the Internet for the specified product or products in question. Brokers recommend that Buyers satisfy themselves regarding recalled or defective products. Brokers do not have expertise in this area and Brokers will not determine if any aspect of the Property is subject to a recall or is affected by a class action lawsuit. 37. RENTAL PROPERTY RESTRICTIONS: Buyer and Seller are advised that some cities and counties Impose restrictions that limit the rent that can be charged to a tenant, the maximum number of tenants who can occupy the property and the right of a landlord to terminate a tenancy and the costs to do so. If Buyer wants further Information, Broker(s) recommend that Buyer Investigate the issue with an appropriate government authority during Buyer's Inspection Contingency period. Brokers do not have expertise in this area. w Buyers Initials ( 1 sellers Initials ( I Copyright O 2004-2010, LIFORNIAASSOCWTION OF REALTORS®, INC. u SBSA REVISED 11110 (PAGE 7 OF 10) Rmlewed tY Oale ,vram""" it STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 7 OF 10) Mrioe Fischer4 piex 299 38. LAND LEASE: Buyer and Seller are advised that certain developments are built on leased land. This means that. (i) Buyer does not own the land, (ii) the right to occupythe land will terminate at some point in time, (111) the cost to lease the land may increase at some point in the future, and (' Buyer may not be able to obtain title Insurance or may have to obtain a different type of title insurance. If Buyer wants further information, Broker recommends that Buyer discuss the Issue with an attorney or other appropriate professional. Brokers do not have expertise in this area. 38. HOME WARRANTY: Buyer and Seller are advised that Buyer and Seller can purchase home warranty plans covering certain standard systems of the Property both before and after Close of Escrow. Seller can obtain coverage for the Property during the listing period. For an additional premium, an upgraded policy providing additional coverage for air conditioning, pool and spa and other features can be purchased. Home warranties do not cover every aspect of the Property and may not cover inspections or upgrades for repairs required by state or federal laws or pre-existing conditions. Brokers) recommend that Buyer review the policy for details. Brokers do not have expertise in this area. 40. INTERNET ADVERTISING; INTERNET BLOGS; SOCIAL MEDIA: Buyer and Seller are advised that Broker may employ a service to provide a "virtual tour" or Internet marketing of the Property, permitting potential buyers to view the Property over the Internet Additionally, some Internet sites and other social media provide formats for comments or opinions of value of properties that are for sale. Neither the service provider nor Brokers have control over who will obtain access to such services or what action such persons might take. Buyer and Seller are advised that Brokers have no control over how long the information concerning the Property will be available on the Internet or through social media. Brokers do not have expertise in this area. 41. ESCROW FUNDS: Buyer and Seller are advised that California Insurance Code Section 12413.1 provides that escrow companies cannot disburse funds unless there are sufficient "good funds" to cover the disbursement "Good funds" are defined as cash, wire transfers and cashiers' or certified checks drawn on California depositories. Escrow companies vary in their own definitions of "good funds.' Broker(s) recommend that Buyer and Seller ask the escrow company regarding its treatment of 'good funds.' All samples and outof-state checks are subject to waiting periods and do not constitute "good funds" until the money is physically transferred to and received by the escrow holder. Brokers do not have expertise in this area. 42. NOTICE OF YOUR "SUPPLEMENTAL" PROPERTY TAX BILL: Buyer and Seller are advised that pursuant to Civil Code f 1102.8(c), Seller, or his or her agent is required to provide the following "Notice of Your'Supplemental' Property Tax Bill to the Buyer: "California property tax law requires the Assessor to revalue real property at the time the ownership of property changes. Because of this law, you may receive one or two supplemental tax bills, depending on when your loan closes. The supplemental tax bills are not mailed to your lender. If you have arranged for your property tax payments to be paid through an impound account, the supplemental tax bills will not be paid by your lender. It is your responsibility to pay these supplemental bills directly to the Tax Collector. If you have any questions conceming this matter, please call your Tax Collector's Office.' Although the notice refers to loan closing as a trigger, it is actually the change of ownership which triggers this reassessment of property taxes. Therefore, the Property can be reassessed even if there is no loan involved in the purchase of the Property. The Purchase Agreement may allocate supplemental tax bills received after the Close of Escrow to the Buyer. If Buyer wants further Information concerning these matters, Broker(s) recommend that Buyer discuss the issue with the County Assessor or Tax Collector or their own tax or legal advisor. Brokers do not have expertise In this area. 43. NON CONFIDENTIALITY OF OFFERS: Buyer is advised that Seller or Listing Agent may disclose the existence, terms, or conditions of Buyer's offer, unless all parties and their agent have signed a written confidentiality agreement (such as C.A.R. Form CND). Whether any such information is actually disclosed depends on many factors, such as current market conditions, the prevailing practice in the real estate community, the Listing Agent's marketing strategy and the instructions of the Seller. 44. FIRPTAICALIFORNIA WITHHOLDING: Buyer and Seller are advised that (1) Internal Revenue Code Section 1445 requires a Buyer to withhold and to remit to the Intemal Revenue Service 10% of the purchase price of the property if the Seller is a non-resident alien, unless an express exemption applies. Seller may avoid withholding by providing Buyer a statement of non -foreign status. The statement must be signed by Seller under penalty of perjury and must include Seller's tax identification number. Buyer can also avoid having to withhold Federal taxes from Seller's Proceeds if the property price is $300,000 or less, and the Buyer signs an affidavit stating Buyer intends to occupy the property as a principal Buyers Initials ( 4A) ( ) Sellers WWI; ( COW911t G 2004-2010, LIFORNIAASSOCIATION OF REALTORSe, INC. 121 SBSA REVISED 11110 (PAGE 8 OF 10) ReNewwl by Date I v�mn' uw r° STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 8 OF 10) Mike Fischa4 plat ro residence. (ii) California Revenue and Taxation Code Section 18662 requires that a Buyer withhold and remit to the California Franchise Tax Board 3 1/3% of the purchase price of the property unless the Seller signs an affidavit that the property was the Sellers (or the decedent's, if a trust or probate sale) principal residence or that the sales price is $100,000 or less or another express exemption applies. Exemptions from withholding also apply to legal entities such as corporations, LLCs, and partnerships. Brokers cannot give tax or legal advice. Broker recommends that Buyer and Seller seek advice from a CPA, attorney or taxing authority. Brokers do not have expertise in this area. 45. LIQUIDATED DAMAGES: Buyer and Seller are advised that a liquidated damages clause is a provision Buyer and Seller can use to agree in advance to the amount of damages that a seller will receive if a buyer breaches the Agreement The clause usually provides that a seller will retain a buyers initial deposit paid if a buyer breaches the agreement, and generally must be separately initialed by both parties and meet other statutory requirements to be enforceable. For any additional deposits to be covered by the liquidated damages clause, there generally must be another separately signed or initialed agreement (see C.A.R. Form RID). However, if the Property contains from 1 to 4 units, one of which a buyer intends to occupy, California Civil Code Section 1675 limits the amount of the deposit subject to liquidated damages to 3% of the purchase price. Even though both parties have agreed to a liquidated damages clause, an escrow company will usually require either a judge's or arbitrators decision or instructions signed by both parties in order to release a buyers deposit to a seller. Buyers and Sellers must decide on their own, or with the advice of legal counsel, whether to agree to a liquidated damages clause. Brokers do not have expertise in this area. 46. MEDIATION: Buyer and Seller are advised that mediation is a process by which the parties hire a neutral person to facilitate discussion and negotiation between the parties with the goal of helping them reach a settlement of their dispute. The parties generally share in the cost of this confidential, non -binding negotiation. If no agreement is reached, either party can pursue further legal action. Under C.AR. Form RPA-CA: (1) the parties must mediate any dispute arising out of their agreement (with a few limited exceptions, such as matters within the jurisdiction of a small claims court) before they resort to arbitration or court, and (ii) if a party proceeds to arbitration or court without having first attempted to mediate the dispute, that party risks losing the right to recover attorney fees and costs even if he or she prevails. 47. ARBITRATION: Buyer and Seller are advised that arbitration is a process by which the disputing parties hire a neutral person to render a binding decision. Generally, arbitration is faster and less expensive than resolving disputes by litigating in court. The rules are usually less formal than in court, and It is a private process not a matter of public record. By agreeing to arbitration, the parties give up the right to a jury trial and to appeal the arbitrators decision. Arbitration decisions have been upheld even when arbitrators have made a mistake as to the law or the facts. If the parties agree to arbitration, then after first attempting to settle the dispute through mediation, any dispute arising out of their agreement (with a few limited exceptions) must be submitted to binding arbitration. Buyer and Seller must weigh the benefits of a potentially quicker and less expensive arbitration against giving up the right to a jury trial and the right to appeal. Brokers cannot give legal advice regarding these matters. Buyers and Sellers must decide on their own, or with the advice of legal counsel, whether to agree to arbitration. Brokers do not have expertise in this area. 48. MEGAN'S LAW DATABASE DISCLOSURE: Notice: Pursuant to Section 290.46 of the Penal Code, information about specific registered sex offenders is made available to the public via an Internet Web site maintained by the Department of Justice at www.meganslaw.ca.gov. Depending on an offenders criminal history, this information will include either the address at which the offender resides or the community of residence and ZIP Code in which he or she resides. (Neither Seller nor Brokers are required to check this website. If Buyer wants further information, Broker recommends that Buyer obtain information from this website during Buyers inspection contingency period. Brokers do not have expertise in this area.) 49. LOCAL ADDENDA (IF CHECKED): The following local disclosures or addenda are attached: A. ❑ B. ❑ C. ❑ D. ❑ Buyers Initials ( fa' ) ( ) Sellers Initials 1M ( Copyright C 2004-2010, CAUFORNIAASSOCWTION OF RMTORSO, INC. SBSA REVISED 11110 (PAGE 9 OF 10) ° &iwaa STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 9 OF 10) Mike FiwJw 4 plan 301 Buyer and Seller acknowledge and agree that Brokers: (1) do not decide what price. Buyer should pay or Seiler should accept; (11) do not guarantee the condition of the Properly, (ill) do not guarantee the performance, adequacy or completeness of inspections, services, products or repairs provided or made by Seller or others; ()v) do not have any obligation to conduct an inspection of common areas or areas off the site of the Property (v) shalll not be responsible for identifying defects on the Property, in common areas, or offsite unless such defects are visually observable by an inspection of reasonably accessible areas of the Property or are known to Brokers; (vl) shall not be responsible for Inspecting public records or permits concerning the title or use of Property; (vil) shall not be responsible for identifying the location of boundary lines or other items affecting title; (vial) shall not be responsible for verifying square footage, representations of others or information contained in investigation reports, Multiple Listing Service, advertisements, flyers or other promotional material; (Ix) shall not be responsible for providing legal or tax advice regarding any aspect of a transaction entered into by Buyer or Seller; and (x) shall not be responsible for providing other advice or information that exceeds the knowledge, education and experience required to perform real estate licensed activity. Buyer and Seller agree to seek legal, tax, insurance, title and other desired assistance from appropriate professionals. Buyer and Seller are encouraged to read this Advisory carefully. By signing below, Buyer and Seller acknowledge that each has read, understands and received a copy of this Advisory. Date Ma 2 011 42Date BUYER % BUYER Ib '* n_f A_in_t TA n_a 'ND/rd<f 440M**We -6&. (Pont name (mint name) Date 517-1111 SELLER u!A ?ii.A Date SELLER (Print name Real Estate Broker Bill Firm) La Ouinta Palms Realty DRE Lie. # 00915271 By `�� . =ce Cathcart DRE Lie- # SAME Date 0512612011 Address 51001 Eisenhower Dr. City La 4ainta State CA. Zip 92253 Telephone r7601564-4104 Fax(760)564-0344 E-mail lacuiatapalms@dc.rr.com Real Estate Broker (Ustin Finn) La Oainta Palms Realty DRE Lia # 00915271 By "-T race Cathcart DRE Lic. # SADate 0512612011 Address _ ` 51001 Eisenhower Dr. City La Quinta State CA, Zip 92253 Telephone r760)564-4104 Fax r76D)564-03Q4 E-mail laauintapalms@dc.rr.ccan THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORSO (CAR.). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAKADVICE, CONSULTAN APPROPRIATE PROFESSIONAL. This form Is available for use by the entire real estate Industry. It is not intended to Identify th user as a REALTOR& REALTORS, Is a registered collective membership mark which may be used only by members of the NATIONAL ASSOCIATION OF REALTORS* who subscribe to Its Code of E-trka REALPublishedES and DistributedBUSINESS REAL ESTATE BUSOJESS SERVICES, INC. "asitsidierydtheCaThintaAssodedmdREALTORSO byDele ` . 525 South ViM1I Avenue, Los Angeles, Celifania 90020 SBSA 11110 (PAGE 10 OF 10) STATEWIDE BUYER AND SELLER ADVISORY (SBSA PAGE 10 OF 10) Mike Fischer 4Islas N 302 C A LIFO R N I A WATER HEATER AND SMOKE DETECTOR 14A S.S O C I A T I O N STATEMENT OF COMPLIANCE 10; OF RE A LT O R S'e (C.A.R. Form WHSD, Revised 11110) Property Address: 75153 Main St. , La Quints, CA, 92253 NOTE: A seller who is not required to provide one of the following statements of compliance is not necessarily exempt from the obligation to provide the other statement of compliance. WATER HEATER STATEMENT OF COMPLIANCE 1. STATE LAW: California Law requires that all new and replacement water heaters and existing residential water heaters be braced, anchored or strapped to resist falling or horizontal displacement due to earthquake motion. 'Water heater" means any standard water heater with a capacity of no more than 120 gallons for which a pre-engineered strapping kit is readily available. (Health and Safety Code §19211d). Although not specifically stated, the statue requiring a statement of compliance does not appear to apply to a properly installed and bolted tankless water heater for the following reasons: There is no tank that can overturn; Pre-engineered strapping kits for such devices are not readily available; and Boning already exists that would help avoid displacement or breakage in the event of an earthquake. 2. LOCAL REQUIREMENTS: Some local ordinances impose more stringent water heater bracing, anchoring or strapping requirements than does California Law. Therefore, it is important to check with local city or county building and safety departments regarding the applicable water heater bracing, anchoring or strapping requirements for your property. 3. TRANSFEROR'S WRITTEN STATEMENT: California Health and Safety Code §19211 requires the seller of any real property containing a water heater to certify, in writing, that the seller Is In compliance with California State Law. If the Property is a manufactured or mobile home, Seller shall also file a required Statement with the Department of Housing and Community Development. 4, CERTIFICATION: Seller represents that the Property, as of the Close Of Escrow, will be in compliance with Health and Safety Code §19211 by having the water heater(s) braced, anchored or strapped in place, in accordance with those requirements. Seller' Yeasa 'an FamilyLtd Partnersh Data 5� Z r ature rent ame Seller Date gnature (Print Name) f Thr had hereby acly�givl receipt of a copy of this document. Buyer-- _ _ e 't L zn Date _Z6 Buyer pats (Signature) (Print Name) SMOKE DETECTOR STATEMENT OF COMPLIANCE 1. STATE LAW: California Law requires that (1) every single-family dwelling and factory built housing unit sold on or after January 1, 1986, must have an operable smoke detector, ap�roved and listed by the State Fire Marshal, installed in accordance with the State Fire Marshal's regulations (Heath and Safety Code §13113.8) and (I) all used manufactured or mobilshomes have an operable smoke detector in each sleeping room. 2. LOCAL REQUIREMENTS: Some local ordinances impose more stringent smoke detector requirements than does California Law. Therefore, it is important to check with local city, or county building and safety departments regarding the applicable smoke detector requirements for your property. 3. TRANSFEROR'S WRITTEN STATEMENT: California Health and Safety Code 613113.8(b) requires every transferor of any real property containing e single-family dwelling, whether the transfer is made by sale, exchange, or rearr property sales contract (installment sales contract), to deliver to the transferee a written statement indicating that the transferor is in compliance with California State Law concerning smoke detectors. f the Property is a manufactured or mobile home, Seller shall also file a required Statement with the Department of Housing and Community Development (Fil 4. EXCEPTIONS: Generally, a written statement of smoke detector compliance is not required for transactions for which the Seller is exempt from providing a transfer disclosure statement. 5. CERTIFICATION: Seller represents that the Properly as of the Close Of Escrow, will be in compliance with the law by having operable smoke deteclor(s) (1) approved and listed by the State Fire Marshal Installed in accordance with the State Fire Marshal's regulations Health and Safety Code §13113.8 or (11) in compliance with �anufacured Housing Construction and Safety Act (Health and Safety Code §18029.6) located in each sleeping room for used manufactured or mobilehomes as required y HCD and(III) in accordance with applicable local ordinance(s). Seller r i lQ/NM "1-t%L1�i�t�1 -15rgna ! iM"� Yeasayiaa Family Ltd Partnerah Date ure n ame Seller Data 5 a (Sign re n Name) Th e i hereby ackn ceipt of a copy of this Water Heater and Smoke Detector Statement of Compliance. B er - The City, of La inta Data Buyer Date (Signature) (print Name The copyright laws of the United States (Title 17 U.S. Code) forbid the unauthorized reproduction of this form, or any porOon thereof, by hotonpy machine w any other means, induding facsimile wr puteriaed formats. CopyrigMC 1991-201c CAUFORNIAASSOCIATION OF REALTORSS, INC. ALL RIGHM RESERVED. THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORSO (C.A.R.). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. A REAL ESTATE BROI21ER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE, CONSULT AN APPROPRIATE PROFESSIONAL. This torn is available for use by the antra real estate Industry. It Is not intended to identify the user as a REALTOR& REALTORO is a registered co9ectim membership mark U y be uON OF REALTORSO who subscribe to Its Code w Ethics. PubtsREALa axxC 525 Souk cartel Arenas. Los Arryphs, CeIiMnIa90920 Reviewed by Date WHSD REVISED 1'1110 (PAGE 1 OF 1) WATER HEATER AND SMOKE DETECTOR STATEMENT OF COMPLIANCE (WHSD PAGE 1 OF 1) Agent: Bruce Cathcart Phone: 750.564A704 Fax: 760.654.0344 Prepared using zlpForm® software Broker. La Quints Palms Real Estate Cc 61-001 Eisenhower Drive La Quints , CA 92253 ,e 3A L�- o� TA'1uT 4,4 Q" Cc c 'y Op 11� COUNCIL/RDA MEETING DATE: June 7, 2011 AGENDA CATEGORY: BUSINESS SESSION: ' CONSENT CALENDAR: ITEM TITLE: Consideration of Improvements and an Appropriation of Funding for the Fritz Burns Dog Park STUDY SESSION: PUBLIC HEARING: RECOMMENDATION: As deemed appropriate by the City Council. FISCAL IMPLICATIONS: The cost to renovate Fritz Burns Dog Park to a small dog only park, including concrete walkways to meet American Disabilities Act (ADA) upgrades, removal of the middle fence, new drinking fountain, additional seating, and lighting, would cost approximately $10,000. Staff is requesting an appropriation from Unallocated Quimby Funds for these improvements. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: On October 5, 2008, a letter from Roger Hopkins was submitted to the City Council requesting additional dog parks in the City. Mr. Hopkins is a large dog owner who was concerned about the City not having enough off -leash areas for large dogs. At that time, the City had two dog parks: one located at Fritz Burns Park (2,600 sq. ft. small dog area and 2,900 sq. ft. large dog area), and one at Pioneer Park (9,050 sq. ft. small dog area and 10,500 sq. ft. large dog area). City Council directed staff to research the potential for additional and expanded dog park locations in the City. On January 12, 2009, the Community Services Commission reviewed options for potential locations of dog parks within the City. During the meeting, some residents expressed their desire to have off -leash dog areas in open spaces such as the Cove Oasis. Residents also commented that they felt the Seasons Retention Basin and Pioneer Park had enough room to expand the large dog area. The Community Services Commission recommendation to the City Council was to 3 D 4 develop a dog park in the Seasons Retention Basin and to expand the large dog area at Pioneer Park. On February 17, 2009, the City Council considered options for new and expanded locations of the dog parks as recommended by the Community Services Commission. The proposed option for a Dog Park in the Seasons Retention Basin was 20,000 square feet. The proposed option for the large dog area at Pioneer Park was to expand into the adjacent Coachella Valley Water District well site adding 20,000 square feet to the large dog area. During the meeting, residents expressed concerns about the proposed size of the large dog area at Seasons Retention Basin and suggested increasing the size. City Council directed staff to increase the size of the large dog area up to three acres (130,680 sq. ft.). The City Council approved the Seasons Retention Basin and the expansion of the Pioneer Dog Park into the CVWD well site as the new dog park locations. On January 12, 2010, a Community Workshop to discuss the plans for the new Seasons Dog Park was held at the La Quinta Library. Letters were sent to all residents within 500 feet of the potential project site. The plans included a 3,000 sq. ft. small dog area and a 55,600 sq. ft. large dog area. Five residents attended the meeting and were in favor of the plans that were presented. On June 15, 2010, the City Council approved the plans, specifications and engineer's estimate (PS&E) and authorized staff to advertise the Seasons Dog Park Improvements, Project Number 2009-05 for bid. The project plans included a 3,000 sq. ft. small dog area and a 55,600 sq. ft. large dog area. The Seasons Dog Park was completed and opened the first week of January 2011. Improvements included tubular steel fencing, seating, shade, drinking fountains, low-level lighting, and handicap access to the dog park (Attachment 1). Total cost for the park improvements was $215,935 and was built in accordance to the plans and specifications approved by the City Council. On January 11, 2011, the City received a petition with over 85 signatures stating that they would like to see the small dog area at Seasons Dog Park made larger (Attachment. 2). Staff met with representatives from the large and small dog owners and discussions began on possible options for increasing the size of the small dog area. Several small dog owners indicated that they only use the large dog area because the small dog area is too small. Additionally, they indicated that there are more small dogs using the facility than large dogs. Neighbors living adjacent to Seasons Dog Park became aware of the discussions with the dog owners and requested involvement in the discussions to express their concerns regarding the potential impacts. Residents on Desert Fall Way, one of two access streets to the park, are concerned that an expansion of the small dog area would increase the traffic and parking in the neighborhood. Parking occurs 3 5 along the adjacent street and there have been as many as ten to twelve cars in 2 front of the facility during the peak time of year (Attachment 3). Based on the petition received by the City, the Community Services Commission held a Study Session on March 7, 2011, regarding the expansion of the small dog area at Seasons Dog Park. The staff report included two scenarios for the Commission to consider for recommendation to the City Council: • Scenario 1, (Attachment 4) would increase the small dog area to just over 7,100 sq. ft. This option would double the size of the existing small dog area and be the least expensive with an estimated cost of $5,750. • Scenario 2 (Attachment 5) would increase the small dog area to over 19,000 sq. ft. with an estimated cost of $7,100. The Commission heard comments from dog owners. Most dog owners at the meeting expressed concern over the size of the small dog park area and indicated they would like to see Scenario 2 be selected due to the larger size. They did not think Scenario 1 was a desirable option because of the slope located on the east side of the property. Two large dog owners spoke to the Commission and indicated that they want the large dog area kept large enough for their big dogs to run. The discussion was concluded with the Commission requesting staff to seek additional information (including other options) regarding the use of the dog park, identify the concerns from the neighborhood with regard to expanding the small dog area, and to obtain costs to retrofit Fritz Burns Dog Park into a small dog only park. On March 20, 2011, based on the Community Services Commission request, staff distributed a neighborhood survey to 35 homes near the dog park. There were 15 surveys returned and the results from the survey indicated that vehicle traffic and noise are of concern if the small dog park is made larger (Attachment 6). At the May 9, 2011 Community Services Commission meeting, the Commission reviewed the results of the neighborhood survey, an additional scenario at Seasons Dog Park, and the cost estimate to convert Fritz Burns to a small dog only facility were presented. • The results of the neighborhood survey were provided to the Community Services Commission ,that included comments from the survey results regarding traffic and noise. • The additional scenario (Scenario 3) would place the existing fence line between Scenario 1 and 2 that would provide 15,000 sq. ft. in the small dog area and 43,600 sq. ft. in the large dog area. The cost for this option is $10,250 (Attachment 7). 3 6 3 • The cost estimate to renovate the Fritz Burns Dog Park with removal of the middle fence, new drinking fountain placed inside the dog park, additional seating, lighting, and concrete walkways areas to meet ADA requirements would cost approximately $10,000. The Community Services Commission recommended that no changes be made at Seasons Park and for the City Council to consider improvements at the Fritz Burns Dog Park to become a small dog only facility. Staff is seeking direction from the City Council regarding improvements to Fritz Burns Dog Park and an appropriation of funding for the referenced improvements. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve the renovation of the Fritz Burns dog park to a small dog park only for $10,000 and appropriate funding from Quimby funds; or 2. Do not approve the renovation of the Fritz Burns dog park to a small dog park only; or. 3. Provide staff with alternate direction. Respectfully submitted, �4' Edie Hylton Community Services Director Approved for submission y: Thomas P. Genovese, City Manager Attachments: 1. Existing Plan 2. Petition 3. Parking Photo 4. Scenario 1 Layout 5. Scenario 2 Layout 6. Surveys and Correspondence 7. Scenario 3 Layout 3 7 H i z 5a a (Laiz, ZWIN Z4 NOLL 4W0a U)U W ,. 1 Y 8 A ATTACHMENT 2 RECEIVED Marilyn Miller Gins er �(! I Ji 55-142 Southerr��lls , 11 PM y 43 i La Quinta, CA L 922 C 760-564-5313 CITY OF LA QUINTA 14A'�AGEP S OF "T M2BR@aol.com CITY CLERK'S OFFICE To: LA QUINTA CITY HALL -DEPARTMENT OF PARKS �JUAu 1 Date: January, 2011 Ctl� Aft: The Mayor and Council of THE CITY OF LA QUINTA In addition to the petition and 85 signatures expressing the disappointment in the La Quinta Dog Park system, I would like to convey the thoughts of the many dog owners who have been frequenting the new SEASON'S DOG PARK since its opening at the end of 2010: It has been observed that there are many more little dogs visiting SEASONS than big dogs; for this reason, the owner's and their LITTLE DOGS have spurned the designated "LITTLE DOG "area and are using the larger area, little and big dogs living together in wonderful harmony. This will work until more large dogs start to utilize this new and beautiful facility at which point many of us will feel the need to segregate our dogs by size for the obvious safety reasons. 2. Several City Hall people have come by the park and offered the suggestion that the Southeast fencing be removed and reused to extend the Northeast fence to the concrete wall on the sloped end of the wash. (Exhibit D).While this would certainly increase the area for LITTLE DOGS, most of this additional space is a fairly steep slope. This plan also leaves the little dog area without the benefit of any shade trees, which the LITTLE DOGS as well as their owners would so appreciate during the hot summer months. We think that a better plan would be to remove the Northeast fence and reuse it to extend the Northwest fence to the decorative concrete North wall; (exhibits A B and C) this would provide additional flat terrain as well as 2 or 3 shade trees depending on where you install the fencing. I am attaching drawings A,B,C,D and comments in order of preference for a suggested improvement to the existing installation. All of these considerations for increasing the size of LITTLE DOG PARK leave plenty of space for their larger friends: A. Adds large amount of flat terrain and 3 shade trees B. Adds some flat terrain and 2 shade trees C. Adds minimal flat terrain and 2 shade trees D. While it doubles the existing space, it adds almost no flat terrain and not one shade tree. 3. In my several conversations with Mr. Steve Howlett, he has indicated the possibility of revamping Fitz Bums doggie area by removing the center fence, adding lighting and drinking fountains and converting it exclusively into a Small Dog Park. Several of us question the necessity of this plan along with its expense to the City. It's proximity to SEASON'S PARK almost precludes its use, in favor of our new and beautiful Park, particularly if the any of the above improvements are made for the UITTLE DOGS. In addition, some of us are 2 dog owners (both little and big) and need a park where we can bring both our 4-legged friends. 4. If this project is going to be presented at any of the Council meetings, I would like to be notified; In addition, it would be beneficial to all if advance notice were posted at all LA Quinta Dog Parks. » Y9 7 \^ \.r��. 34�O } i 0 Z aYt © Za( CL oN� 11 s `lY WQ O Za a °g Off, 312 13 ATTACHMENT 6 Seasons dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? Is there anything else regarding this issue that you would like us to know about the dog park? Z." umc Snscd "As on Ae� shve.ta 7 Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at comn1Un tyservices@la- quinta. org. 313 .15 } &Kra - D[IfR1 Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, please explain. aw��c�ea5�' Asa h�oy d Ue%,'[/� /%�r'GC�oIliPo-sc ii2�� If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? "naI If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur?_ Is there anything else regarding this issue that you would like us to know about the dog park? _ G..%o Gt! �� 1.r _ YC, 5c� f7"Ld1+ N.a �n�ir,ti i,-s�n, ce„� i' 3) 4"-- r `-, Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services. Department at (760) 777-7156 or email us at communityservices@:a- quinta.org. 31� 16 Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed gativ`e impacts frona the recent opening of the dog park? If so, nlaaSP Pxnlain_ K ///SSA i - 7A'P % �` "n Azy/ If 1W If the? r"feOU /0 fG1e Gu¢- 5"r ;mall dog park area were enlarged to 7,000 sq npp is do you think would occur? 7%� 1if?a feet within the lar a dog park area, w�cl� V1 I dog park area were enlarged to 19.000 sq. feet within the large dog, park Is there anything else regarding this issu that you would like us to know about the dog park? l3 fL �2`� fG C/!//df'��t 4i f IM51 3 M_5' a fib 7" C�lir D6 WAI i Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at corninunityservices@ia- quinta.org. 315 17- Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impactq do you think would occur? At) o-' \L tS 0' 1 QX l n S V [L If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? U S Is there anything else regarding this issue that you would li a us to know about the dog park? t1jfSU J i �'_-nc> Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at communityse1ViCes@13- quinta.org. 316 m Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent recent opening of the dog park? If so, please explain. cb, 11Z*- --M+'-ric. �s�zccli, _, To rM a dt)o If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? Wnj1n1'VIq, I- H61 Ve 0 �Ma 11 C400 IVS cld.\/Mom T owl 611W61Vs vvi+tjik^f tmc-hmrs.��j �Kld M cv'f �c ihdilAV�. y�� > or If the small dog park area were enlarged to 19,000 sq. felefw t i t e large og park area, what impacts do you think would occur? -Fale_+-i mt-)v-e �r/,r.� iGr We 19by VT Is there anything else regarding this issue that you would like us to know about the dog park? Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at comrnunityserrices@la quinta.org. ,. 31l t� 19 Seasons bog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, n IP.AgP P.Yninin If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? Is there anything else regarding this issue that you would like us to know about the dog park? Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at co4_T31Y enif.yservices@ia- quinta.org. . 318 20 GEM '01"DE51i II - Seasons dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, nlaase exnlain If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? Is there anything else regarding this issue that you would like us to know about the dog park? Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at communitysarvices@la- quinta.org. 319 21 I would like the City to also consider the possible consequences of further increasing the traffic in this small quiet neighborhood by expanding this dog park. The traffic has already exceeded what was projected for this dog park and any increased traffic will most likely be cause for concern for anyone looking to purchase a home on the two streets that serve the Seasons Dog Park Simply put ... by expanding this dog park and making it more inviting to more dog owners it will clearly cause more traffic and will therefore make it a less desirable neighborhood to locate in ... and that lowers property values. I personally believe that the local homeowners would have cause for LEGAL ACTION against the City if additional traffic is generated due to the dog park expansion for the small dogs. Thank you in advance for not taking any action that would increase traffic in our formally quiet neighborhood. 320 22- —GEM 4'h Drsl:P1 -- Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog parl/k�? If so, please explain. Y03 Qatz, �- 6 ✓to kA'klkw f� Ac�/� �/ fvf I""`C.. If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what im(pac1t's do you think would occur?. bYU'T/ �s I wi �nrti NO- 6 t 'r" WOO X . /� �Sn uv Ap . VkNI�i dw-4v, -ki , /'" L If the small dog park area were enlarged to 19,000 sq. feet within the large do park area, what impacts do youyt�hiink would oCfcur? ✓tip (A16UPO I 6e ql p �� VN to W 4tz Is there anything else regarding this issue that you would like us to know about the dog park? � � 1�4A I)�r�r�t� il� lnn'I� rtAlce lk�ir S�?Q�4 �nia(ili A I� (1, 0 /a0 MA/I # n (AF A(6 nr— O t KO/Y 1 i/V0_ Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at cornmunityservices@la- quinta.org. ,8 321 23 } Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, please explain. l-fit cp .A1 LocEe CAQ euad IUAI 'Lg �U VkL If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? 44\b� Ja d1A, o.Doye • U U . If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? SOL4"-+L e6t� "OVIL . Is there anything else regarding this issue that you would like us to know about the dog Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at communityservices@la- quin[a.ory. 322 24 --Gl SI q'Om Df Slil<I - Seasons dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from he recent opening of the do park? If so, please explain. �t�� 1/ z G� P ��r If the small dog park area were enlarged to 7 what impa is do�yyou think woy occur7 sq. fee within the large dog park area, If the small dog park area were enlarged to 19,000 sq. feet within the large #g park area what impacts do you t ink would occur? i, G/ Is there anything else regard/ilj-his issue that you would like us o know abbQut the dog park?�-�i�.d �VI�L�-�' Cal �l7ilG?ll�J Vf�iCl1< Please to the time to mail back the survey- in the self -ad essed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at communityservices@la- quinta.org. 3?3 25 Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, please explain..,.z,, If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? L7- Is there anything else regarding this issue that you would like us to know about the dog park? Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at communityservices@ia- quinta.org. 324 26 C;f Nt 16, bFSER I' — Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed `negative impacts from the recent opening of the dog park? If so, please explain. tw ueS — OQaoWO '-'D. (e'rML `iiw2�v l�cx S �d If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area,. what impacts do you think would occur? �\C�- nc -Vl.DA, It- Ap-t-c 00�c-0I- -h� nn.V- Urns n If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? %U_ 6&00t Is there anything else regarding this issue that you would like us to know about the dog park?_ AQOV`k Na- �oC PCsJf 1 S i r\ P S -i Q O_A' a kr, o 1 c.Way- 4"W�, V6 (,k- I CV-V\ D Please take the time to mail back. the survey in the self-addressed stamped a v�el pe. t � Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. ) c For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at comrriunityservices@Ia-I quinta.org. `�' » 3-5 27 Seasons Dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of please explain.-r 1h6114 Ih C rnu 605e fh Q)g_ 20(6 1 // I T dog park? If so, sv� AwJ 4 Qhd nn 140 clp - _�a ttte DeS t/ark . Ti'E.rrS 01 Pau-k (-L lk-vIAP_-A- -k-.;AAlti@ '06s ravK ejo,.k,&e< js,'J y t If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? �cty �C lS 1 A'6 n O.n nI )m In �.. I_�.._ A.(n .l-�..0 j_ r.cC If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? �4-lL( no I a�Rlu Is there anything elsce'rega ding th}'�s issue that you would like to know about the dog, park? 1Mb�rP� 1 m (�Cx Qa ra ®f Oevs J'� D �� nSt �i Cti � Sf?2 P-A n Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at communityservices@la- quinta.org. 3-6 eve, Pe5;'1"L cc 2 Seasons dog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, please explain. OD. If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? JAAVJ—b—d C , 01/1112C If the small dog park area were enlarged to 19,000 sq. feet within the .large og park area, what impacts do you think would occur? ctyc[ Y c a 1 P Is there anything else regarding this issue that you would like us to know about the dog park? 15me/4, - A2 a O(Y11Sz j_t 0 0 t /) a afl r'l A'k60c,(Ytr"l rib cu� U1 Y1 Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at corrom.mitysarvices@Ia- gUinta.org. 3?7 29 Seasons bog Park Survey The City of La Quinta has been asked by small dog owners to consider increasing the size of the small dog area (which is currently 3,000 sq. feet) into the large dog area. As a resident in proximity to this location we would like to hear from you. Have you observed negative impacts from the recent opening of the dog park? If so, please explain. OjjCCP i NCk VaW_ �R. 'KToSt I\c71SP � If the small dog park area were enlarged to 7,000 sq. feet within the large dog park area, what impacts do you think would occur? 1Mck'v -4r,C_C_;c_ of If the small dog park area were enlarged to 19,000 sq. feet within the large dog park area, what impacts do you think would occur? k 0(h Scc Is there anything else regarding this issue that you would like us to know about the dog Please take the time to mail back the survey in the self-addressed stamped envelope. Staff will compile your comments and keep you informed about the progress of this issue. The Community Services Commission meeting on May 9, 2011 will be discussing the findings and making recommendations to the City Council. For more information or copies of the renderings, please contact the La Quinta Community Services Department at (760) 777-7156 or email us at comrnunin{services@in quinta.org. _ 328 30 -----Original Message ----- From: Kathy Gottberg[maiIto: kathy@kathygottberg.com] Sent: Friday, March 04, 2011 12:45 PM To: Edie Hylton Cc: Thom Gottberg Subject: Improvements to Seasons Dog Park Hi Edie, Has there been a decision about whether the Community Services Commission will be addressing any Seasons Dog Park changes at the March 14th meeting? . Thom and I have talked to several residents of our neighborhood about the issue. We are all very concerned because the majority of people who live here work full time, live here year round, have families, and are very busy. We do not have the time to "oppose" the the people who are wanting changes to the Seasons Dog Park (who are likely retired with lots of time on their hands.) In addition, we feel that we have been extremely cooperative and reasonable about the dog park even though it effects our lives on a daily basis and directly impacts the safety, traffic and quiet enjoyment of our homes. We were told from the beginning that the purpose of this new dog park was to accommodate the large dogs and serve as an "additional" dog park to the city. We were also told that our concerns about traffic and safety would not be a problem because we should not expect over 7 cars at the maximum at any one time. We now know that traffic, safety, noise and disruption to our neighborhood is vastly increased due to the dog park. This burden lies heavily upon the Season Neighborhood. We have even taken it upon ourselves to attempt to alleviate some of that detriment, at our own expense, by putting up signage to help direct traffic. We are also aware that little has been done, and is presently being done, to improve the Fritz Burns dog park, (with tons of parking and no disruption to an immediate residential neighborhood). Because that dog park is in such disrepair, that further drives traffic and detriment to the Seasons Neighborhood. That the La Quinta Community Services Commission and/or the City of La Quinta would even entertain making further structural changes to the Seasons Dog Park at the request of some dog owners is inconsiderate of the full-time residents of Seasons Neighborhood. While we have been more than willing to cooperate and work with the city to find a middle ground, should the needs of the dog owners be further put above the needs of the Seasons Neighborhood residents, we will be forced to begin taking more assertive steps. It is our strong request, as residents of Seasons Neighborhood, that the city of La Quinta consider improving Fritz Burns Dog Park to satisfy the dog owners who are not happy with Seasons Dog . Park exactly the way it is. Please inform us if the Community Services Committee will be hearing this issue at the next (or any other meeting). Thank you. Kathy Gottberg 78290 Desert Fall Way ,, La Quinta, CA 92253 3 9 31 From: Loveseeds@aol.com [mailto:Loveseeds@aol.com] Sent: Sunday, March 06, 2011 5:53 PM To: ann.gard@att.net; brentsat@earthlink.com; chic.perry@yahoo.com; cycad2l@yahoo.com; DianaMac007@aol.com; domdesert@yahoo.com; humbug48@sbcglobal.net; joydee2@verizon.net; Karlofkaz@aol.com; lexislequenne@yahoo.com; m2br@aol.com; SherryHalperin@aol.com; simplify@wendygregoire.com Subject: RE DOG PARK AS OF TONIGHT, WE ALL SHOULD SHOW UP AT THE MEETING TOMORROW CONCERNING DOG PARK EXTENTIONIH I KNOW YOU ALL KNOW HENRY AND SAM THE TWO LITTLE DOG AT THE DOGGIE PARK, ANY WAYS, TONIGHT SAM WAS ATTACHED BY TWO BIG RETRIEVERS, NEVER SEEN THEM THERE BEFORE, ANY WAYS IAM WAITING TO HEAR FROM JANE SHE TOOK THEM TO THE HOSPITAL, I AM NOT SURE BUT I DO NOT THINK SAM WILL MAKE IT, HE LOOKED PRETTY BAD, HE, I THINK, BROKE HIS NECK, I TRIED TO CHECK AND HE WAS CRYING SO BAD, AND HENRY BIT ME TO PROTECT SAM, IAM SO FUCKING MAD!!! SO MAD THAT THE PEOPLE AT THE DOGGIE PARK TAKING SO LONG TO EXTENT THE PARK, IAM DEPRESSED MAD AND ANGRY AND I WANT TO KILL THE TWO DOGS THAT ATTACHED SAM, WE WERE HAVING A GOOD TIME TILL THEY SHOWED UP, THIS TYPE OF INCIDENT HAS HAPPEN BEFORE BUT THIS TIME WAS DEADLY IAM WAITING TO HEAR FROM JANE, BUT SHE DID NOT THINK HE MADE IT, TO TELL YOU THE TRUTH I DID NOT THINK HE WOULD HAVE MADE IT, I WAS THERE, IAM IN A STATE OF SHOCK! I FEEL SO BAD FOR THE OWNERS, THEY LOVED THOSE TWO LITTLE BABY SO MUCH, AND I GONE TROUGH A TOUGH TIME WITH PUMK BUT I WAS LUCKY HE SURVIVED!l I WILL LET YOU KNOW SOON I HEAR FROM THEM ON WHAT IS GOING ON, I BE SHOCKED IF SAM MADE IT, I WILL NEVER FORGET HIS CRYING,I WILL NOT FORGET THE BLOOD ON THE FLOOR AND WILL NEVER FORGET HOW HENRY TRIED TO PROTECT HIM, I HAVE A BITE ON MY WRIST TO PROVE IT! IAM DIVESTED!!!!!!!!! ANGELA PLEASE ALL OF YOU MAKE IT TO THE DOGGIE PARK MEETING AT THE LA QUINTA CIVIC CENTER PLEASEEEEEEEEE THIS HAS TO STOP!!! » 330 32 MEMORANDUM TO: Honorable Mayor and Members of the City Council FROM: Thomas P. Genovese, City Manager , DATE: March 8, 2011 SUBJECT: Seasons Dog Park Angela Jewhurst sent the attached email to the City Council and met with Edie Hylton at City Hall yesterday. She was distraught as a result of her witnessing the dog attack on Sunday, March 6, 2011 at Seasons Dog Park. Edie spent time with her and let her know that the discussion regarding the Seasons Dog Park would come before the Community Services Commission at their meeting on March 14th at 5:30 pm. Ms. Jewhurst was aware of the meeting, but wanted to let us know what had occurred. Fortunately, Ms. Jewhurst was able share information about the owners of the dog that was attacked and the owner of the dog that attacked the smaller dog. This information has been turned over to Code Compliance and they are contacting the parties involved. As of this morning, the Code Compliance Department picked up the two dogs which were responsible for the dog attack. These dogs were running loose in the neighborhood. The Code Compliance staff is also contacting the owner of the dog that was attacked today to file a report. Should you have any questions regarding this incident, please feel free to contact me. C: Edie Hylton, Community Services Director of 331 33 l'o r Wanda From: Sent: To: Subject: Loveseeds@ao!.com Monday, March 07, 2011 3:42 PM Council re dogs and dog park Dear Mayor Don Adolph and Linda Evans: Sorry for taking time from your busy schedule but I have a big concern and lam acting upon my feelings of sadness and concern. lam a proud owner of two pours, belle (black pom) punkin(blond poms) I use the dog park here in la quints, the one by fritz center is a disaster, not enough benches or canopy to keep the sun off when it is hot, running water is not available unless we go out or bring our own! but this is not my major concern. on Sunday night here on the new park by the school there was a very bad incident that has left me very depressed and concerned. we been trying to get the little dog side bigger we have so many little dogs, each of us has two or three of them and when we all show up (most of the time) the little side is not enough to keep the dogs busy) S00000000 a lots of us started to use the other side which is longer wider and the little dogs are having a blast there more so than the one on miles ave. I watch my two dogs like a mother hen, I keep a spray water bottle to stop dogs when they get upset with each other or digging! it works very well with my dogs and does not hurt them, as a matter of fact I only need to show the bottle and they know, other people goes there to visit with each other and do not watch their dogs, which is a big problem! any ways, on Sunday night around four thirty or five not sure it is a daze to me right now, but this guy showed up with two golden retriever (I think) I noticed right away before he even enter his dogs were very nervous, so I felt like I should leave and than one of the lady there said they are ok they are good dogs. well it turned out they were not good dogs, not bad either just they did not like the little dogs barking, there were my two poms (if you know what they look like they are very delicate and small) but the dog that almost got killed (at this time he is in intensive care hoping he will survive the attack), any ways the dog that they attacked is a small dog, like the size of a size seven half to eight shoes? very very smallll Any ways the dog was left laying down with blood all over and I thought his neck was broken, he was crying (which I will never forget) if any of you had pets and loves pets you most understand how I felt seen that poor thing laying there, was afraid to pick him up because I thought he broke his neck! VERY SADIII than l was worried about the dogs turning on my dogs, which it would have destroyed me if it happened!! so I got my water spray bottle and tried to calm down all of them by spraying water to make them stop, so 1 was worried about my dogs and the hurt dog!! now the reason why lam saying this, because I heard that the tiny area that was for "small dogs" it was meant for small dogs, no sign on it saying <big dog> and since it was too small for the amount of small dogs we floated over the other side, this has not been the first incident there have been more but this one is a deadly one, )and for the dogs owner it is devastating!!l we only want the dogs to feel free and run free and have fun! and if you take the time to go and look at the one "so called small dog area and the big dog area? you will see when you put 332 35 twenty to thirty dogs in the small area it does not work at ailil ms Linda Evans? I was told you lost your puppy so I think you can imagine seen this little thing laying there with his head on the side the tongue hanging out crying and bleedingll this is the picture I see every five minutes since Sunday, I have not slept and iam depressed over 101 almost lost my pumk a couple of years ago, and I was devasted and this incident made me go back to that daylll I think you as a women? and someone thatjust lost her little doggie? you most understand how we feelll and you most also understand how the dog owner feels and felt when she was told her dog was in the emergency roomf it most have been like a shot In the head to her, I know how I feltl on Monday the 14th, there will be a meeting in the building in la quints chamber commerce, and if you show up? you will see how many people are concerned and are angry at what happenedll I think every one is right and wrong, I have to admit to it, but some how there most be a happy ending to this, and I hope the little dog will survive which I have dough because I seen and was there when it happened, his head was jammed under the gate that divides the big and small park, I tried to move him slowly but than i got hysterical when I saw how bad he was hurtlll Sam is his name, his mom is Marilyn and Lloyd she is the one that has been fighting to get the little dog side to get bigger so that every one can be happyl the park is closer to the people in the cove it Is very convenient for us local and snow birdsli the reason lam writing to you? because I hope very much you can help somehow! CAN YOU??? DO NOT WANT TO SEE WHAT HAPPENED ON SUNDAY ANY MOREII it is sad and !am so depressed over it and angry and worriedl please help out before another puppy gets hurt???? 1 thank you for taking the time and I hope to god you will help or try to help if it is possiblell thank you so much from the bottom of my hart for ever in debit to you both if you can help out somehow Angela jewhurst 760.771.6886 » 333 36 From: M2br@aol.com [mailto:M2br@aol.com] Sent: Tuesday, March 08, 2011 10:54 PM To: Edie Hylton Subject: Re: RE DOG PARK March 8, 2011 Many of you have probably heard me champion a very simple philosophy of mine which is to "never put your feet where you don't want them to be". Hold onto that thought while I tell you a story about our little boy, SAM. When we first brought puppy SAM into our home he was so little and so blonde that he blended right into all our furniture. We had to keep his . bright red leash attached to his collar so that we could track him down. So many times Lloyd and I would be busy with "whatever" and realize that we had not seen SAM for a while (How about like a half hour or longer)? We would look around the house and eventually spot his bright red leash which had inadvertently wedged under a piece of furniture. Not a sound. Not a whimper. There we would find SAM sitting with that happy little smile and his near famous tail wagging like a windshield wiper on high speed. The point is that, SAM was always happy wherever his little feet were. Tonight SAM'S little feet took him to boggie Heaven. He went peacefully in the loving arms of his Mom and bad with only wonderful memories of how he was loved by everyone who met him. Marilyn Miller Ginsberg 55142 Southern Hills La Quinta, CA 92253 Tel: 760-564-5313 Cel: 760-220-9855 Fax:760-777-1539 E-Mail: M2BR@aol.com 334 37 From: Carolyn Walker Sent: Tuesday, March 15, 2011 10:24 AM I To: 'mikeg100@comcast.net' Cc: Angela Guereque; Monika Radeva Subject: RE: Seasons Dog Park Dear Mr. & Mrs. Goad: Your e-mail was received by the Planning Department of the City of La Quinta. I believe the meeting you refer to was the Community Services Commission which is handled by the Community Services Department (760-777-7090). I am forwarding your e-mail to them for their response. Should you have any other questions or concerns, that relate to the Planning Department, please feel free to contact me. Thank you. Carolyn Walker, Executive Secretary Planning Department City of La Quinta 760-777-7118 cwalker anla-auinta. ora From: mikeg100@comcast.net [mailto:mikeg100@comcast.net] Sent: Tuesday, March 15, 2011 10:19 AM To: Planning WebMail Subject: Seasons Dog Park To the Commission: I was at the meeting last night regarding the Seasons Dog Park and I did not speak because I did not want to add fuel to the fire as I have large dogs and the group was overwhelming small dog folks. Don't get me wrong, I love small dogs too. I would like to correct some statements that are not true. The area that is being considered for option 2 is not covered with dog feces as was told by one person. There are a few of us who have cleaned up the area because our dogs do play there and love to lay under the trees in the shade. It was bad at one time because people did'nt pay any attention to their dogs; in fact that's the case any where in the park, people gather together under the canopy and don't watch their dogs. I have said someone's dog is doing his thing on the hill to make owners cleanup after their dogs. On one occasion people gathered under the canopy were talking and someone's dog pooped right by them and no one picked it up, so my wife did it for them. We are there 7 days a week at various times and I have never seen more small dogs than big as one person said. The folks who are active with their dogs use the whole park. Some folks come in and release their dogs and gather under the canopy. That is where the dogs will hang out, close to their parents. 335 38 A long fence across the park with small dogs on one side and big on the other will create a dog run on both sides of the fence that will become a mess. 1 Also regarding maintance; just north of the canopy on the large dog side, there may be a broken pipe in the ground that is creating a mud hole that a running dog could slip and get hurt. Also some folks don't see that mud and walk into it with their flip flops and they get covered with mud. It would be nice if a sign could be posted warning pet parents of the danger of leaving chain link collars on the dogs while they are at play. We have not seen any of these collars at Seasons, which is good. Dogs at play can get their tooth or teeth hooked into their play mate's collar. This can be disastrous. We have appreciated the beautiful park that is provided for our dogs. Ideas for improvements are great. We feel that more room needs to be made for the small dogs; we think that Scenario 1 would be the most feasible. There are people that have large and small dogs, keeping them in one park would probably be easier for them. The traffic concern has always seemed to be under control. The drivers are courteous. The parking congestion seems to be the residents, not the visitors to the park. Also, the faster drivers seem to be the residents. Oust an observation) Mike and Susan Goad 54766 Inverness Way La Quinta 360 420 1124 336 39 From: TerrylHenderson@aol.com Sent: Wednesday, March 16, 201: To: KBLadner@aol.com Cc: Edie Hylton Subject: Re: La Quinta Cove [mailto:TerrylHenderson@aol.com] 9:45 AM thank you for your input. this is becoming quite an issue. Terry Henderson In a message dated 3/15/2011 7:43:03 P.M. Pacific Daylight Time, KBLadner@aol.com writes: Hi Terry. This was forwarded to me and I thought I would share with you my personal experience. I love the new Seasons Park, thank youl However, the little dog owners are obviously mad about how small their park is so they let their little dogs loose in the big dog section. None of them use the little dog section. My sweet Labradoodle was harassed by an obnoxious little dog and she turned on it She didn't hurt the dog, but clearly left some slobber on her, the little dog limped over to her owner who immediately took it out on me. Within a few minutes the little "drama queen" was back running around and harassing my dog. l ended up putting her on the leash and made her sit next to me so my other dog could continue to play. I will not go back. j I suggest the City take the fencing for the small dog park and extend it straight back to the other side of the park and give the little dog owners more space. The park is clearly big enough for all dogs. In the meantime, small dog owners should clearly understand the big dogs are going to hurt them, just by nature of play and size. And there are some that just don't like being pestered by hyper little dogs ; ). There is my two cents, for whatever it's worth. Kay Ladner TALK BACK: Small dog owner speaks up Posted: 15 Mar 2011 12:16 AM PDT THIS FROM ANGELA FILED AFTER THE COMMUNITY SERVICES COMMISSION MEETING ON MONDAY EVENING, MARCH 14: tonigh we (bout twentyof us)went to the city concil to discust the little dog park the new dog park is in the cove (seasons? park?) any ways what prompt us to show up tonight because it was after a little dog got killed by a big dog, our anger was toward making the little dog are bigger, the people (the concil members) seem to feel that money is more important than little dogs, i felt like they did not care at all what we had to say, almost all of us were in tears especially when the dog owner got up and talked, i was shaking from crying! it was very emotional to see him trying to talk in between tears! 1 i made sure most of the little dog owner showed up and went with a lots of hope but left empty and angry. the owner of the dog that died hasbeen fighting city hall since the park started and it has been 337 40 months with no answer! tonight? another empty feeling! what is wrong? what is wrong with this picture!! the park by applebees also got jibbed with the size, they made the big dog are huge and we got benches and some lights, wowwwwww big deal!! there are times that there are so many little dogs there that they run into other dogs and people standing around! the parking area also is a joke, i do not think you guys have any ideas how many dogs in this area, small and big, i have two a lots of people has three and four and when they all show up? it is caos trying to park! and having enough room for them to run! i am a resident here for over eight years i have a home in the cove and the new park is much convinient for me and i save gas money by going there! also the one by the fritz center is a very discusting park, no one goes there any more, it is dirty, no running water, not enough benches and covers, need more shade and put more cement under the bench and the souranding area of the bench! i never see any one going there any more! so i think the one by the"seasons "isa great location, but the small dogs area is very small, they cantrun or rumming around, so to expand that part would make it much easier on us small dog owners, the death of little sam has brought a lots of concern to all of us that owns little dogs! so why go to meeting??? i did not feel satisfied, a lots of little dogs owner made a point to show up, so they can show support and concern, and when we argued they shut us up, the meeting was over(and she did not want to hear any thing else) the lady that lost her little baby wanted some satisfaction and so did P! and others in the room, we all left very upset!! the owner of the dead dog needs closure, if this passes (which i hope soon) i know they will feel better about their loss! - so can any one help here? or iam waisting my time here too like i did tonight, spent hours to get every one togher and spent days making sure it would happen!! so?? whats next? thanks 333 l:si -----Original Message ----- From: Claire Lehr[mailto:clairej.lehr@verizon.net] Posted At: Sunday, March 20, 2011 7:51 PM Posted To: Community Services Conversation: Small Dogs Subject: Small Dogs The last 3 times I have gone to the small dog park,small dog owners have their dogs playing in the large dog side. They say they need to run.1 have told them that it can be dangerous but that is their habit. This evening I persuaded 2 dog owners to come with their dogs into the small dog area. The small dogs together had a good time but there really wasn"t enough room to run.Some of the small dogs run faster and further than the big ones. am trying to train my dog to not enter the large dog side . It is not helpful when small dogs are there. It is my hope that the small area will be enlarged as soon as possible so new habits can be established buy dogs and owners. Sometimes I am the only one (with dog ) in the small area and my dog wants to join the little dogs in the large area. I hope that a community representative could come to the park -at different times of day and evening. Perhaps then, small dog owners would begin to place their dogs in the small area. Sincerely, Claire J. Lehr,Ph.D. 760-7713700 r" 339 42 March 27, 2011 Mrs. Heather Engel Commissioner La Quinta Parks and Recreation Dear Mrs. Engel, My husband and I are residents of La Quinta and also owners of a 501b. Golden Retriever named Sophie. We have enjoyed immensely the Seasons Dog Park since it opened in January of this year and are so grateful for such a large space to exercise our dog, off -leash. In fact, we take Sophie there nearly every day. It has come to our attention that there is a possibility of making the large dog park smaller. We object to this idea strongly. Larger dogs do, in fact, need more room to run. The physics of this argument are undeniable. Larger dogs need more room to run than smaller ones. Smaller ones might "enjoy" a bigger space but they can still enjoy and be exercised in a smaller space. Not so with larger dogs. I read where there was an unfortunate incident a few weeks ago where a small dog was hurt and subsequently, died. Had the small dog been "in" the small dog area, the incident could have been avoided. To then punish all large dog owners because of this incident is decidedly unfair. ,'in expansion of the small dog park were to take place, I would be in favor of converting the Fritz Burns dog park into a, small dog only, park or to go with Option 1 of the three proposed. My husband and I plan on being at the upcoming meeting in May and hope to convince as many large dog owners as possible, to be there as well. Thank you for your concerns in this matter. Margaret and Dennis Goza 79199 Cetrino La Quinta, CA 92253 340 43 ®s T 7- 341 44 .OEM OF COUNCIURDA MEETING DATE: .tune 7, 2011 ITEM TITLE: Consideration of a Memorandum of Understanding Between the City of La Quinta and the County of Riverside Regarding the Potential Widening of Fred Waring Drive, Between Adams Street and Port Maria Road RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: 2' CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve the Memorandum of Understanding (MOU) (Attachment 1) with the County of Riverside regarding the potential widening of Fred Waring Drive, between Adams Street and Port Maria Road subject to any minor revisions approved by the City Attorney and City Manager, and authorize the City Manager to execute the same. FISCAL IMPLICATIONS: None for the City. The County of Riverside and the Coachella Valley Association of Governments (CVAG) will pay for 100% of the improvements. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: On April 15, 2008, the County of Riverside came before the Council to discuss interim improvements and alternatives for ultimate widening of Fred Waring Street between Adams Street and Port Maria Road. The County presented three alternatives and City staff presented possible concerns with the designs, including the following: • Safety of passing motorists in the westbound lanes as residents from Bermuda Dunes Country Club back onto Fred Waring from their driveways. • How left turns will be accommodated at Adams Street and Dune Palms Road. 342 • Restricted turning movements at La Quinta Palms. • Indemnity from the County for proposing a non-standard roadway design. • The absence of a bike lane on the north side of Fred Waring Drive. • Noise impacts to residents on the south side of Fred Waring if centerline and the south side curb and gutter are moved to the south. • Who is responsible for reconstruction of improvements on the south side if an adjustment to the centerline is allowed? City Council allowed the County to proceed with the interim striping improvements with the understanding that the County would come back with more complete design options in the future. The City of La Quinta re -constructed and widened the segment of Fred Waring between Washington Street and Adams Street during the first four months of 2009, to accommodate six travel lanes, bike lanes in each direction and a raised landscaped median. On July 21, 2009, the County came back before the City Council with three design alternatives, as part of the environmental processing for the project, and sought City Council input as to a preferred design alternative. City staff presented the alternatives with the City's concerns. The County proposed City shared funding of the improvements within the County's right-of-way and the Council directed the County to come back at a later meeting with refined alternatives and a funding plan that did not include City funding for this project. On December 15, 2009 the County came back before the City Council with three refined alternatives and asked for City Council approval to move forward with Alternative No. 1 (Attachment 2) as the preferred alternative for the environmental document. Alternative No. 1 would widen and elevate the west bound lanes on the north side of Fred Waring Drive. This would require shifting the southerly curb and gutter five (5) feet to the south between Chapelton Drive and Dune Palms Road. This alternative would also minimize right-of-way acquisition and have the least impact to homes on the north side of the street. This alternative would also allow parking on the north side of Fred Waring and would provide a refuge lane for vehicles entering and exiting the driveways and for mail delivery vehicles. No striped bike lane would be provided; however, bicycles could use the widened shoulder on the north side of the road. A general plan amendment would also be required for this alternative. The Council heard concerns from City and County residents concerning access and noise and directed the County to proceed with Alternative No. 1 while including all of the issues heard by the Council. 343 Over the last 19 months, the County and City staff have met with local residents from both sides of the street numerous times and received very helpful input which has led to adjusting the grade of the road to allow left turns into the La Quinta Palms development and the inclusion of a sound wall on the south side of Fred Waring Drive between Adams Street and Dune Palms Drive to mitigate future noise issues. The La Quinta Palms HOA and residents indicated that safe turning movements and increased traffic noise were their primary concerns of the road widening project. With these issues addressed, City staff now recommends entering into a MOU with the County to select Alternative No. 1 as the preferred alternative for CEQA analysis, pending approval by CVAG. Once the environmental document is complete, a permanent license and indemnity agreement will be drafted which will address the design, construction and maintenance of the road improvements. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve the Memorandum of Understanding (MOU) with the County of Riverside regarding the potential widening of Fred Waring Drive, between Adams Street and Port Maria Road subject to any minor revisions approved by the City Attorney and City Manager, and authorize the City Manager to execute the same; or 2. Do not approve the Memorandum of Understanding (MOU) with the County of Riverside regarding the potential widening of Fred Waring Drive, between. Adams Street and Port Maria Road subject to any minor revisions approved by the City Attorney and City Manager, and authorize the City Manager to execute the same; or 3. Provide staff with alternative direction. Respectfully submitted, Timothy 13,4 nassc n P.E. Public Works Direct r/City Engineer 344 Approved for submission by: Thomas P. Genovese, City Manager Attachments: 1. Memorandum of Understanding 2. Preferred Alternative Plan View 345 ;ATTACHMENT 1 MEMORANDUM OF UNDERSTANDING REGARDING THE POTENTIAL WIDENING OF FRED WARING DRIVE BETWEEN ADAMS STREET AND PORT MARIA ROAD THIS MEMORANDUM OF UNDERSTANDING ("MOU") dated , 2011, by and between the CITY OF LA QUINTA, a California charter city ("City"), the COUNTY OF RIVERSIDE, a political subdivision of the State of California ("County") and the Coachella Valley Association of Governments, a California joint powers agency, ("CVAG"), is made with reference to the following recitals and terms. RECITALS WHEREAS, this MOU relates to proposed improvements to that certain portion of a public street commonly known as Fred Waring Drive, between Adams Street and Port Maria Road, a length of approximately 3300 feet ("Project Site"). A depiction of the Project Site is attached hereto as Exhibit "A" and incorporated herein by this reference. The north side of Fred Waring Drive in the Project Site falls under the jurisdiction of the County, while the south side is under the City's jurisdiction. The centerline of the existing roadway is generally located on the boundary line between the City and the County. The entire road width of Fred Waring Drive west of Adams Street and east of Port Maria Road falls under the City's jurisdiction; and WHEREAS, on November 8, 1988 Voters located within the Jurisdictional boundaries of the County of Riverside approved Measure A authorizing the imposition of a half -cent sales tax for Transportation purposes; and WHEREAS, the widening of Fred Waring Drive was a Named Measure A Regional Artial Project; and WHEREAS, The Coachella Valley Transportation Project Prioritization Study lists the portion of roadway along Fred Waring Drive identified as eligible for funding from the "Measure A" and "Transportation Uniform Mitigation Fee" programs; and WHEREAS, on March 3, 2008, the Coachella Valley Association of Governments ("CVAG") entered an agreement titled "Agency Reimbursement Agreement by and between CVAG and the COUNTY of Riverside" authorizing the expenditure of funds for improvements to this segment of roadway; and WHEREAS, on March 18, 2008, the City Council of the City approved the concept of widening Fred Waring Drive, between Washington Street and Jefferson Street, to accommodate six (6) lanes of traffic ("Project"); and Page 1 of 8 .346 WHEREAS, on April 15, 2008, the County approached the City to discuss interim improvements and alternatives for the widening of Fred Waring Drive between Adams Street and Port Maria Road. County presented three alternatives for the widening; and WHEREAS, the City has sufficient width in its portion to accommodate the three lanes of travel; and WHEREAS, the County requested that the City agree to move the centerline of the roadway to the south in order to accomplish the road widening project; and WHEREAS, on June 30, 2008, the City and the County entered into that certain License and Indemnity Agreement that provided terms and conditions for the installation of certain temporary roadway modifications in portions of the Project Site (Temporary License and Indemnity Agreement); and WHEREAS, on November 2, 2010, the City and the County executed an amendment titled "First Amendment to License and Indemnity agreement' that extended the term of the License and Indemnity Agreement for an additional six (6) months from the date the Original License was due to expire; and WHEREAS, the County has requested the City select a design for the permanent improvements to serve as the "preferred alternative" to be studied for purposes of complying the California Environmental Quality Act ("CEQA"); and WHEREAS, the design the County has proposed as the preferred alternative includes the centerline moving to the south and has been identified in presentations to the La Quinta City Council as "Alternative No. 1"; and WHEREAS, the City of La Quinta is willing to select Alternative No. 1 as the preferred alternative for purposes of the CEQA analysis; and WHEREAS, Alternative No. 1 provides a significant public benefit in terms of costs savings to the public by choosing an alternative that is fiscally responsible in these extreme economic conditions; and WHEREAS, if Alternative No. 1 is ultimately chosen for the Project Site, it would be deemed the "Project' and the City and the County will need to enter into a permanent License and Indemnity Agreement to replace the temporary License and Indemnity Agreement entered into by the parties. WHEREAS, neither the City nor the County will actually approve any design until the CEQA process has been completed. NOW, THEREFORE, incorporating the foregoing recitals and in consideration thereof, and in consideration of the mutual covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: -2- 347 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated herein by this reference to the same extent as though herein again set forth in full. 2. Preferred Alternative; CEQA Compliance; No Predetermination. For purposes of completing the CEQA review, the parties agree that Alternative No. 1 shall be studied as the preferred alternative. The County shall be the lead agency for CEQA and the City shall be a responsible agency subject to the requirements of CEQA Guidelines Section 15096. The approval of this MOU is not a commitment to proceed with the Project. The approval of the Project is contingent on completion of the CEQA review. The scope of analysis conducted for CEQA will include the activities described below in Section 3, paragraphs (a), (b) and (c). 3. , Permanent License and Indemnity Agreement. The parties agree that if the Project is approved with Alternative No. 1 as the design, the Project will not be able to proceed until and unless the City and the County enter into a permanent License and Indemnity Agreement ("Permanent License and Indemnity Agreement), since the centerline would be moving south into the City. The Permanent License and Indemnity Agreement shall include all of the following provisions: (a) In as much as the Project affects existing landscape improvements the County shall be required to install new irrigation, landscaping and landscape lighting on both the north and south sides of the Project Site. The landscaping must be drought tolerant and should include an option for artificial turf within the median(s) on Fred Waring Drive. The landscaping must be based on specifications prepared by the County and approved by the City and the Coachella Valley Water District. The County and City will share in the maintenance cost of the median landscaping and irrigation water equally. County and City street maintenance responsibilities will remain as before the project. (b) The project will include a rubberized asphalt overlay as a measure to attenuate noise for the local residents. As a result of the Noise Study prepared for the project, the project will also include a sound wall between Adams St and Dune Palms Road to be located on the south side of the road between the roadway and the residential properties. The sound wall is provided to mitigate projected noise levels that would exceed 65 dBA Community Noise Equivalent Level (CNEL). The sound wall height will not exceed eight feet as recommended per the Noise Study. The costs associated with the design and construction of a sound wall are considered valid project cost and eligible for reimbursement by CVAG. (c) The County shall be required to submit a traffic control plan and roadway improvement plans, which are subject to the approval of the Public Works Director of the City. The traffic control plan will be part of an encroachment permit which may include additional measures to insure the safety of motorists during construction of the project and to cover City inspection costs. (d) The County shall be responsible for 100% of the design and construction costs for the "Project," Alternative 1 or variation thereof as mutually agreed to. The County shall also be solely responsible for repairing any damaged street or landscape improvements resulting from the Project. -3- ,M 348 (e) All construction will be dependent on the improvements being eligible under CVAG's policies as outlined in Section IV, "Cost Determination/Expense Eligibility" of CVAG's Policies and Procedures Manual and CVAG agreeing to reimburse 75% of the cost. The remaining 25% cost shall be paid by the County. (f) Indemnity and Release. The County agrees to defend, indemnify, and hold the City, its officers, officials, representatives, agents and employees (collectively, "Indemnified Parties") harmless from any and all claims, actions, liabilities, or legal proceedings (collectively, "Claims"), arising from any accident, loss or damage to persons or property happening or occurring as a proximate result of any work undertaken by the County under this License and Indemnification Agreement, or which arises out of, relates to, or in any way involves the design, construction, installation, or use of the Improvements, including each and every design feature utilized in the Improvements and the driveway connections to Fred Waring Drive. Upon receipt of any Claim covered by this provision, the Indemnified Parties shall tender the Claim to the County, and the County shall provide the Indemnified Parties' defense in the matter, which includes reasonable attorneys' fees and costs, at no cost to Indemnified Parties. The Indemnified Parties shall fully cooperate in the defense of any such Claim. The County agrees to promptly pay any and all final judgments or awards of damages, costs, or any other monetary awards against the Indemnified Parties covered by this provision. This provision also shall not apply to Claims where the cause of injury or damage is determined by a final judgment or ruling, no longer subject to appeal, to be solely the result of City's negligence, willful misconduct or gross misconduct with regard to the maintenance of City roadways or median improvements within City limits. To the extent the City's negligence, willful misconduct or gross misconduct with regard to the maintenance of City roadways or median improvements within City limits is determined by a final judgment or ruling, no longer subject to appeal, to be only one of two or more proximate causes of said injury or damages, the County's defense and indemnity obligations to City shall be reduced on a pro rata basis in accordance with the determinations included in such final judgment or ruling. The County's obligations under this provision shall commence from the date the construction of the Improvements commences and shall continue in perpetuity. Upon request by the City, the County either shall add the Indemnified Parties as "additional insureds" to any and all of the County's insurance policies which might relate to the Improvements made to the Project Site or provide proof of self insurance coverage for the Improvements made to the Project Site. However, the County agrees that the providing of said insurance coverage does not relieve the County of the obligations assumed within this provision. 4. Miscellaneous. (a) Attorneys' Fees. In the event of any dispute between the parties hereto involving this MOU, the prevailing party shall be entitled to recover, and the other party agrees to pay, all reasonable fees, expenses and costs, including but not limited to attorneys' fees. (b) Notices. Any notice which either party may desire to give to the other parry must be in writing and shall be effective (i) when personally delivered by the other parry or by messenger or courier; (ii) three (3) business days after deposit in the United States mail, registered or certified; (iii) one (1) business day after deposit before the daily deadline time with a reputable overnight courier or service; or (iv) upon receipt of a telecopy or fax transmission (as evidenced by a computer generated receipt confirming a successful transmission), provided a hard copy of such transmission shall be thereafter delivered in one of the methods described in the foregoing (i) through (iii); in each case postage fully prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto: If to City: City of La Quinta Thomas P. Genovese, City Manager 78-495 Calle Tampico La Quinta, California 92253 With a copy to: Rutan & Tucker, LLP M. Katherine Jenson 611 Anton Blvd., Suite 1400 P.O. Box 1950 Costa Mesa, CA 92628-1950 If to County: Riverside County Transportation Department Juan C. Perez, Director of Transportation 4080 Lemon Street Riverside, CA 92501 With a Copy to: County of Riverside Clerk of the Board P.O. Box 1147 Riverside, CA 92502-1147 If to CVAG: Coachella Valley Association of Governments Tom Kirk, Executive Director 73-710 Fred Waring Drive, Suite #200 Palm Desert, CA 92260 Either party may from time to time, by written notice to the others, designate a different address which shall be substituted for the one above specified, and/or specify additional parties to be notified. -5- » 350 5. Successors and Assigns. This MOU shall be binding on the parties hereto and their respective successors. 6. No Third Parties Benefited. This MOU is made for the sole benefit and protection of the City and County, and their respective successors. No other person shall have any right of action or right to rely thereon. 7. Entire Agreement. This MOU contains the entire agreement of the parties hereto with respect to the matters covered hereby, and all negotiations and agreements, statements or promises between the parties hereto or their agents with respect to this transaction are merged in this MOU, which alone expresses the parties' rights and obligations and if not contained herein shall not be binding or valid against either of the parties hereto. Notwithstanding the prior sentence, the Temporary License and Indemnification Agreement shall remain if force and effect unless terminated pursuant to its terms or superseded by the Permanent License and Indemnity Agreement. 8. Modification. Any amendments or modifications to this MOU must be in writing and executed by all the parties to this MOU. 9. Interpretation; Governing Law. This MOU shall be construed according to its fair meaning and as if prepared by both parties hereto. This MOU shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this MOU. Titles and captions are for convenience only and shall not constitute a portion of this MOU. As used in this MOU, masculine, feminine or neutral gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 10. No Waiver. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance by the other party hereto under the provisions of this MOU shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions thereof. 11. Severability. If any term, provision, condition or covenant of this MOU or the application thereof to any party or circumstances shall, to any extent; be held invalid or unenforceable, the remainder of this instrument, or the application of such 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 thereby, and each term and provision of this MOU shall be valid and enforceable to the fullest extent permitted by law. 12. Counterparts. This MOU may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. The parties may also deliver executed copies of this MOU to each other by facsimile, which facsimile signatures shall be binding. Any facsimile delivery of signatures shall be followed by the delivery of executed originals. SIGNATURE PAGES FOLLOW 351 9.2 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date set forth above. ATTEST: Veronica Montecino, City Clerk APPROVED AS TO FORM: M. Katherine Jenson, City Attorney ATTEST: Clerk of the Board Kecia Harper-Ihem Deputy APPROVED AS TO FORM: Pamela J Walls, County Counsel Synthia M. Gunzel, Deputy County Counsel CITY OF LA QUINTA, a California charter city By: Thomas P. Genovese Its: City Manager COUNTY OF RIVERSIDE, apolitical subdivision of the State of California M Bob Buster, Chairman Board of Supervisors -7- -of 3 5 2 ATTEST: Tom Kirk, Executive Director COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, a Califomia joint powers agency 32 Stephen Pougnet, Chairman CVAG Executive Committee -8- 353 FV Department Report: 1A N OF Tt� TO: The Honorable Mayor and Members of the City Council FROM: Les Johnson, Planning Director �((( DATE: June 7, 2011 SUBJECT: Department Report - General Plan Monthly Update Planning staff continued their community outreach program for the General Plan update by providing an informational booth at the City's annual birthday festival held on April 301h. A number of residents visited the booth to ask questions of staff about planning and general city issues. Some visitors were not aware of the update process and had their name added to the interest list. Throughout the month of May, Planning staff continued to work with consultants Terra -Nova and Iteris on editing and revising the Greenhouse Gas Inventory and Reduction Plan, the Sustainability Element, and the Traffic and Circulation Element of the General Plan. Four additional elements have been completed in draft form and will be reviewed by the Technical Advisory Committee in mid -June. Staff estimates the last few remaining draft elements of the General Plan, including Land Use and Economic Development, will be completed by the end of next month and should be scheduled for review by the Technical Advisory Committee sometime in August. As the General Plan document as a whole is starting to come together, a complete draft version is anticipated be made available for review and comment late Summer/early Fall. 355