2004-3 area 2 mr construction agreement. 10.16.2006pdf

8/12/2019 2004-3 Area 2 MR Construction Agreement. 10.16.2006pdf

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CITY .if 'F INDIO100 CIVIC CENTE R MA LL INDIO, CA 92201

760.342.6500 FAX 760.342.6556 www.indio.orgOctober 16, 2006Mr. Gary WilliamsVice PresidentSunCal Companies74130 Country Club DrivePalm Desert, CA 92260RE: Community Services District Improvement Area TwoMr. Williams:As you are aware, on August 2, 2006 the City Council approved a Resolutionapproving a Deposit and Reimbursement Agreement necessary to initiateImprovement Area Two Community Facilities District (CFD) Financing.Earlier today, you asked for clarifying language to specific wording contained inparagraph two of the analysis section reading, staff is also negotiating with theMaster developer for a contribution to the cost of certain water storage facilitiesneeded to serve the Terra Lago development. This issue has been satisfiedwith the approval of the Resolution of Intention on September 20, 2006(attached). Specifically, the Resolution of Intention staff report contains languagein paragraph two of the analysis section outlining discretional monies in theamount of $1,750,000 which the City intends to allocate to new water storagefacilities within the Terra Lago development. t is my understanding our


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ui-u NO. zUU4-3 I erra LamSeptember 20, 2006PAGE 2

At this time, in order to capitalize on the current additional bonding capacityexpected to be generated by the Phase 2 development, the Master Developer isrequesting that the amount of bonded indebtedness authorized to be incurredwithin Improvement Area No. 2 be increased from $30,000,000 to $33,500,000.In order to offset the increase in bonded indebtedness authorized forImprovement Area No. 2, staff is recommending that the authorized bondedindebtedness limit for Improvement Area No. 1 be reduced to $26,500,000,limiting the total authorized bonding capacity for the overall CFD to the original$60 million approved in 2005.The additional capacity realized from the proposed increase in bondedindebtedness for Improvement Area No. 2 will be divided equally between theMaster Developer and the City. The Master Developer will use the additionalproceeds to fund infrastructure costs of the development, while the City may usethe proceeds for its own public facilities.STAFF RECOMMENDATIONStaff recommends adopting the Resolution of Intention to Incur BondedIndebtedness in the Amount Not to Exceed $33,500,000 within ImprovementArea No. 2 of the City of Indio Community Facilities District No. 2004-3 (TerraLago) and setting November 1, 2006 as the date for the public hearing and specialelection by property owners.


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Ul-U NO. ZUU4-3 (I errs Lago)September 20, 2006PAGE 3

cost of a fire station will be funded when the special tax bonds are issued forImprovement Area No. 2. Approximately 53,364,000 in City development impactfees for parks and streets will also be funded. The City's share of the additionalbonding capacity of $1,750,000 can be used at the City's discretion for additionalpublic facilities.The issuance of special tax bonds for Improvement Area No. 2 is expected to beconsidered by the City Council in November 2006. At this time it is requestedthat the amount of bonded indebtedness authorized to be incurred withinImprovement Area No. 2 be increased from S30,000,000 to S33,500,000. In orderto offset the increase in bonded indebtedness authorized for Improvement AreaNo. 2 and limit the bonded indebtedness for the Community Facilities District to$60,000,000 in total, the authorized bonded indebtedness limit for ImprovementArea No. 1 would be reduced to $26,500,000.The additional capacity realized from the proposed increase in bondedindebtedness for Improvement Area No. 2 will be divided equally between theMaster Developer and the City. The Master Developer will use the additionalproceeds to fund infrastructure costs of the development, while the City will usethe proceeds for its own public facilities.Prior to the issuance of the Improvement Area No. 2 Bonds, a determination willbe made that the homes to be built within the CFD can support the estimatedspecial taxes in the amount necessary to repay this second series of bonds and thatsuch special tax does not cause the total effective tax rate (including ad valorem


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CFD No. 2004-3 (Terra Lago)September 20, 2006PAGE 4

The special tax bonds will fund approximately $3,364,000 of development impactfees of the City, $3,000,000 toward the cost of a fire station, and another$1,750,000 of other City public facilities, as well as sewer fees of Valley SanitaryDistrict, school fees and certain of the Master Developer's infrastructure costs.LEGAL REVIEWThe Mello-Roos Community Facilities Act of 1982 (the Act ) provides clearauthority, in section 53318(c), for the initiation of the establishment ofcommunity facilities districts or changes thereto upon receipt by the City of apetition requesting the proceedings by the owners of not less than 10% of the areaof land within the district. The City has received the signed petition from LandVentures, LLC, the property owner of land within Improvement Area No. 2.The Act provides that, if there are less than 12 registered voters currently withinthe district, the vote to increase the bonded debt limit shall be by the landownerswithin such district and each landowner shall have one vote for each acre orportion of an acre of land owned within the district.This item has been reviewed by Don Hunt of Fulbright & Jaworski, L.L.P, theCity's bond counsel.PUBLIC NOTICE PROCESS


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CFD No. 2004-3 (Terra Lago)September 20, 2006PAGE 5

Submitted by: inancial Review:e d,Jim L. Smith, P.E.Director of Engineering/Public Works

Michael P. BuschManagement Services Director

Reviewed by:

Don Hunt, Bond Counsel

List of Attachments:A. Resolution of Intention to Incur Bonded Indebtedness in the Amount Not to

Exceed $33,500,000 within Improvement Area No. 2 of the City of IndioCommunity Facilities District No. 2004-3 (Terra Lago)


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ATTACHMENT A

RESOLUTION NO.

RESOLUTION OF INTENTION OF THE CITY COUNCIL OF THE CITYOF INDIO TO INCUR BONDED INDEBTEDNESS IN THE AMOUNTNOT TO EXCEED $33,500,000 WITHIN IMPROVEMENT AREA NO. 2OF THE CITY OF INDIO COMMUNITY FACILITIES DISTRICT NO.2004-3 (TERRA LAGO)

WHEREAS, the City Council (the Council ) of the City of Indio (the City ) hasreceived a petition from the landowner of Improvement Area No. 2 of the City of IndioCommunity Facilities District No. 2004-3 (Terra Lago) (the CFD ) to institute proceedings toincrease the amount of bonded indebtedness authorized to be incurred within Improvement AreaNo. 2 from $30,000,000 to $33,500,000, the proceeds of which will be used to finance thepurchase, construction, expansion or rehabilitation of certain real and other tangible propertywith an estimated useful life of five years or longer, including public infrastructure facilities andother governmental facilities, which are necessary to meet increased demands placed upon theCity as a result of development or rehabilitation occurring within the proposed CFD (theFacilities ).

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LNDIO DOESHEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:

Section 1. t is necessary to incur bonded indebtedness within Improvement Area No.2 of the CF'D in the amount not to exceed $33,500,000 to finance the costs of the Facilities forImprovement Area No. 2.

Section 2. he indebtedness will be incurred for the purpose of financing the costs ofdesigning, constructing and acquiring the Facilities, the acquisition of necessary equipment andproperty therefor and fulfilling contractual commitments and carrying out the powers and


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Section 5. s an off-set to the increase in amount of authorized bonded indebtednessfor Improvement Area No. 2, the amount of bonded indebtedness authorized to be incurredwithin Improvement Area No. 1 is hereby reduced to $26,500,000.

Section 6. public hearing (the Hearing ) on the proposed increase in debt issueshall be held on November 1, 2006 at 6:00 o'clock p.m., or as soon thereafter as practicable, atthe chambers of the City Council of the City of Indio, 150 Civic Center Mall, Indio, California92202.

Section 7. t the Hearing at the time and place set forth above, any interestedpersons, including all persons owning land within Improvement Area No .2, may appear and beheard at the Hearing.

Section 8. he proposition to incur bonded indebtedness in the maximum aggregateprincipal amount not to exceed $33,500,000 for Improvement Area No. 2 shall be submitted tothe qualified electors of Improvement Area No. 2. A special election shall be conducted onNovember 1, 2006. The special election shall be conducted by hand delivered or mailed ballotelection. The ballots shall be returned to the office of the election officer no later than 11:00o'clock p.m. on November 1, 2006.

Section 9. he Clerk is hereby directed to publish a copy of this resolution, whichshall serve as notice ( Notice ) of the Hearing and the special bond election, pursuant to Section6061 of the Government Code in a newspaper of general circulation in the proposed CFD.


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PASSED, APPROVED and ADOPTED this ay of 2006by the following votes:AYES:NOES:

GENE GILBERT, MAYOR

ATTEST:

CYNTHIA HERNANDEZCITY CLERK, CMC


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TO: ITY COUNCIL OF THE C 11 Y OF 11NT)I0FROM: NDIO LAND VENTURES, LLC

PETITION (INCLUDING CONSENT AND WAIVER)REQUESTING THE ESTABLISHMENT OF A

COMMUNITY SERVICES DISTRICTThe undersigned landowner does hereby certify under penalty of perjury that the

following statements are all true and correct:1. The undersigned is authorized to represent the landowner identified below (the

Landowner ) and is its designated representative to petition the City Council (the Council ) ofthe City of Indio (the City ) and to give the consent and waiver contained herein with respect toCity of Indio Community Facilities District No. 2004-3 (Terra Lago) (the CFD ) formed underthe provisions of the Mello-Roos Community Facilities Act of 1982 (the Act ), being Chapter2.5 of Part 1 of Division 2 of title 5 (commencing with Section 53311) of the CaliforniaGovernment Code.

2. The undersigned hereby certify that as of the date indicated opposite his signature,the landowner listed herein is the owner of the property within Improvement Area No. 2 of theCFD described in Exhibit A hereto (the Improvement Area No. 2 ).

3. Pursuant to a special election held within Improvement Area No. 2, theLandowner has previously approved the incurring of bonded indebtedness in the amount of notto exceed $30,000,000 within Improvement Area No. 2. Due to changes in the development planfor Improvement Area No. 2, additional bonded indebtedness will need to be incurred withinImprovement Area No. 2.


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and reported to the Council at the same meeting of the Council as the public hearing on thefatination of the CFD or the next available meeting.

7. The undersigned expressly waives all applicable waiting periods for the electionand waives the requirement for analysis and arguments relating to the special election, as setforth in Section 53327 of the Act, and consents to not having such materials provided to thelandowner in the ballot packet, and expressly waives any requirements as to the form of theballot.

8. The undersigned expressly waives all notice requirements relating to hearings andspecial elections, whether by posting, publishing or mailing, and whether such requirements arefound in the California Elections Code, the California Government Code or other laws orprocedures, including but limited to any notice provided for by compliance with the provisionsof Section 4101 of the California Elections Code.

9. The undersigned hereby consents to and expressly waives any and all claimsbased on any irregularity, error, mistake or departure from the provisions of the Act or other lawsof the State and any and all laws and requirements incorporated therein, and no step or action inany proceeding relative to Improvement Area No. 2 or the special election therein shall beinvalidated or affected by any such irregularity, error, mistake or departure.

IN WITNESS WHEREOF, I hereunto set my hand this ay of 2006.

INDIO LAND VENTURES, LLC,a California limited liability company


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REIMBURSEMENT AND DEDICATIONAGREEMENTFOR PUBLIC IMPROVEMENTS

Terra Lago Master Planned Water Facilities ImprovementsFebruary 21, 2006

This Reimbursement Agreement for Public Improvements (the Agreement ) is madethis 1st day of March, 2006, by and between the City of Indio, a California MunicipalCorporation ( City ) and Indio Land Ventures, LLC, a California Limited LiabilityCompany ( Developer ). City and Developer are sometimes referenced herein jointly asthe Parties and each is sometimes alternatively referenced as a Party.

RECITALSA. Developer is the master developer of that certain real property commonly known

as the Terra Lago Project and located in the City of Indio, County of Riverside,State of California (the Property ).B. Developer is currently engaged in the project of developing the Property (the

Project ) in conformance with the terms and conditions of City entitlements,including but not limited, to Tract Map No. 32341 (TM 32341) and that certaindevelopment agreement dated December 18, 1996 and recorded in the OfficialRecords of Riverside County on September 18, 1998 (collectively, theConditions ).

C. The Conditions require Developer to construct certain public improvements that


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F. Developer has requested that City enter into a reimbursement agreement to setforth the terms and conditions under which the City will reimburse Developer fordesign and construction of the Water F acilities Improvements.

G. Developer's projected costs arising from and related to each component of theWater Facilities Improvements is reflected in the itemized list provided asExhibit B, and incorporated herein. Developer's total projected costs related todesign, construction, and installation of the Water Facilities Improvements, asreflected on Exhibit B and subject to approval of the Director of Public Works ofthe City, are hereinafter referred to as the Estimated Costs.

H. The Pump Station will be constructed on property currently owned by Developer(the Pump Station Property ). The Pump Station Property is more particularlydescribed in Exhibit C attached hereto and incorporated herein.

I. City and Developer agree that the Water Facilities Improvements will not causeany actual or potential environmental impacts beyond those arising from andrelated to the Project and previously addressed in Environmental Assessment No.04-11-404 relating to Developer's proposed development of the Property (theEnvironmental Assessment ).

J. City and Developer have agreed that Developer will construct the Water FacilitiesImprovements and dedicate the Water Facilities Improvements and Pump StationProperty to City, City will provide design review, plan check, and inspectionservices. City will reimburse Developer from those funds related to the City ofIndio Community Facilities District No. 2004-3 (hereinafter CFD 2004-3 )account attributable to Water Capital Improvement Fees (hereinafter AvailableCFD Funds) for the cost of the Water Facilities Improvements, and City willaccept the Water Facilities Improvements and Pump Station Property, all as


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conformance with the terms of this Agreement; however, said amount shall not exceedone hundred ten percent (110%) of the Estimated Costs (as approved by the Director ofPublic Works pursuant to Section 5, below), without approval of the City Council of theCity of Indio and/or amendment to the Agreement (in either event, theReimbursement ). In making its commitment to the Reimbursement, City specifically

declines to commit any funds attributable to interest. As a foundation for this Agreementand City's payment of the Reimbursement, the Parties agree that the Recitals above aretrue and correct and that they mutually accept same as binding contractual terms,incorporated by reference, together with Exhibits A, B, and C, and the definitions setforth, herein.2. Design, Construction and Installation of Improvements and Water FacilitiesImprovements.Developer shall be responsible for designing (in coo peration with City), constructing, an dinstalling the Water Facilities Improvements. City shall provide plan check, designreview, and inspection services. Developer shall submit plans, conforming to allapplicable legal authority and standards, for the W ater Facili ties Improvements, in accordwith established City policies and procedures and compliance with all applicableauthority, to City's Director of Public Works (the Director ) for approval prior toconstruction. The construction and installation of the Water Facilities Improvementsshall be to the City's satisfaction, reasonably exercised in its sole discretion.3. Obligations of Developer.

3.1. cope of S ervicesThe obligations of Developer pursuant to this Agreement may collectively bereferred to herein as Services or Work. Developer may select a contractor or


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of its general obligations arising from or related to the design (in cooperation withthe City), construction and installation of public facilities and infrastructure, e.g.,to provide City with various bonds (the General Obligations ).3.3. icenses, Permits, Fees and Assessments.Developer shall obtain at its/their sole cost and expense subject toreimbursement, such licenses, permits and approvals as may be required by lawfor the performance of the Services required by this Agreement. Developer shallhave the sole obligation to pay for any, fees, assessments and taxes, plusapplicable penalties and interest, which may be imposed by law and arise from orare necessary for Developer's performance of the services required by thisAgreement, and shall indemnify, defend and hold harmless City against any suchfees, assessments, taxes penalties or interest levied, assessed or imposed againstCity hereunder.3.4. amiliarity with Work.By executing this Contract, Developer warrants that Developer: (a) hasthoroughly investigated and considered the scope of Services to be performed, (b)has carefully considered how the Services should be performed, and (c) fullyunderstands the facilities, difficulties and restrictions attending performance of theServices under this Agreement. If the services involve work upon any site,Developer warrants that it has or will investigate the site and is or will be fullyacquainted with the conditions there existing, prior to commencement of Serviceshereunder. Should Developer discover any latent or unknown conditions, whichwill materially affect performance of Services hereunder, Developer shallimmediately inform the Director of such fact and shall not proceed except atDeveloper's risk until written instructions are received from the Contract


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execute all instruments, prepare all documents and take all actions as may bereasonably necessary to carry out the purposes of this Agreement. Unlesshereafter specified, neither of the Parties shall be responsible for the service of theother.3.7. revailing Wage Laws.In accordance with Labor Code Section 1770 et seq., the director of theDepartment of Industrial Relations of the State of California has ascertained ageneral prevailing rate of wages which is the minimum amount which shall bepaid to all workers employed to perform the work pursuant to this Agreement. Acopy of the general prevailing wage rate determination is on file in the Office ofthe City Clerk and is hereby incorporated in this Agreement. Developer shall beresponsible for Contractors' compliance in all respects with the prevailing wagerates to all the laborers involved, and with California Labor Code Section 1770 et.seq., including the keeping of all records required by the provisions of LaborCode Section 1776 and the implementing administrative regulation. naccordance with the provisions of Labor Code Section 1810 et seq., eight (8)hours is the legal working day.

4. oordination of Work and Services.4.1. rincipals of Developer.The following principals of Developer are hereby designated as being theprincipals and representatives of Developer authorized to act in its behalf withrespect to the Work specified herein and make all decisions in connectiontherewith:


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4.6. renches or E xcavations.Pursuant to California Public Contract Code Section 7104, in the event the Workincluded in this Agreement requires excavations more than four (4) feet in depth,the following shall apply.

4.6.1. Developer shall promptly, and before the following conditions aredisturbed, notify City, in writing, of any: (1) material thatDeveloper believes may be material that is hazardous waste, asdefined in Section 25117 of the Health and Safety Code, that isrequired to be removed to a Class 1, Class 11, or Class III disposalsite in accordance with provisions of existing law; (2) Subsurfaceor latent physical conditions at a Work site different from thoseindicated; or (3) Unknown physical conditions at a Work site ofany unusual nature, different materially from those ordinarilyencountered and generally recognized as inherent in Work of thecharacter provided for in the contract.

4.6.2. City shall promptly investigate the conditions, and if it finds thatthe conditions do materially so differ, or do involve hazardouswaste, and cause a decrease or increase in Developer's cost of, orthe time required for, performance of any part of the Work,Contract Officer shall call for a Meeting as that term is definedbelow in Section 5 and extend the Completion Date as that temiis defined below in Section 5 to a date mutually agreeable to theparties.

4.6.3. That, in the event that a dispute arises between City and Developerwhether the conditions materially differ, or involve hazardous


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approval, along with a copy of all contracts with the Contractors. Developer covenantsthat its completion of the design, construction and installation of the Water FacilitiesImprovements (the Completion ) shall take place within sixty (60) days the Director'sapproval of the Work Schedule and the Estimated Costs (the Completion Date ), subjectto an extension of the Completion Date, under the terms and conditions provided by thisAgreement. The Contract Officer, in order to monitor progress toward Completion, mayfrom time to time require the attendance of Developer at meetings at City Hall( Meetings ) reasonably deemed necessary by City. The Developer may request aMeeting with the Contract Officer in the event that such a Meeting becomes, inDeveloper's opinion, warranted. Extensions as to the Completion Date must be approvedin advance in writing by the Contract Officer. However, the Completion Date shall beextended because of any delays due to unforeseeable causes beyond the control andwithout the fault or negligence of Developer, including, but not restricted to, those itemslisted in Section 4.6.1 above, acts of God or of a public enemy, fires, earthquakes, floods,epidemics, quarantine restrictions, riots, strikes, freight embargoes, acts of anygovernmental Agency other than City, and unusually severe weather (collectively ForceMajeure ), if Developer shall within ten (10) days of the commencement of such delaynotify the Contract Officer in writing of the causes of the delay. Upon such writtennotice, the Contract Officer shall ascertain the facts and the extent of delay, and extendthe Com pletion D ate for the period o f the forced delay to a date mutually agreeable to theParties.6. City Acceptance and Maintenance of Water Facilities Improvements.City agrees to approve and accept the Water Facilities Improvements and to acceptdedication of the Water Facilities Improvements and Pump Station Property uponCompletion, inspection and any requisite peimit issuance. As used in this Agreement,acceptance of the Water Facilities Improvements and related dedications shall meanacceptance and approval by the City Council of City. Upon dedication of the Water


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8. nsurance, Indemnification and Rem edies.8.1 nsurance.

8.1.1. Liability Insurance.Developer and/or Contractor shall procure and maintain, at its cost, andsubmit to the Contract Officer concurrently with its execution of thisAgreement, comprehensive general liability insurance, inclusive ofpersonal and public liability and personal injury/property damageinsurance in the amount of one million dollars ($1,000,000.00) peroccurrence, combined single limit, against all claims for injuries againstpersons or damages to property resulting from Developer's and/orContractor's acts or omissions arising out of or related to Developer'sand/or Contractor's performance under this Agreement. The insurancepolicy shall contain a severability of interest clause providing that thecoverage shall be primary for losses arising out of Developer's and/orContractor's performance hereunder and neither City nor its insurers shallbe required to contribute to such loss. A certificate evidencing theforegoing and naming City and its officers and employees as additionalinsureds shall be delivered to and approved by City prior tocomm encement of the Services hereunder.8.1.2. A utomobile Insurance.Developer and/or Contractor shall carry automobile liability insurance ofone million dollars ($1,000,000.00) per accident against all claims forinjuries against persons or damages to property arising out of the use ofany automobile by Developer and/or Contractor, its officers, any person


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8.1.4. Effective Dates of Coverage.All insurance required by this Section 8.1 shall be kept in effect during theterm of this Agreement and shall not be cancelled without thirty (30) dayswritten notice to City of proposed cancellation. The procuring of suchinsurance of the delivery of policies or certificates evidencing the sameshall not be construed as a limitation of Developer's and/or Contractor'sobligation to indemnify City, its officers, employees, contractors,subcontractors, or agents.

8.2. ndemnification.Developer shall defend, indemnify and hold harmless City, its elected officials,officers, employees, representatives, attorneys and agents, from and against anyand all actions, suits, proceedings, claims, demands, losses, costs and expenses,including legal costs and attorneys' fees for counsel acceptable to City(collectively Claims ), for injury to or death of person(s), for damage to property(including City property) and for errors and omissions committed by Developerand/or Contractor, its/their officers, employees and agents, that arise out of or arerelated to Developer's and/or Contractor's negligent performance under thisAgreement, except to the extent of such loss as may be caused by City's ownnegligence or that of its officers or employees. By way of clarification,Developer's duty to indemnify pursuant to this Section 8.2 shall extend to,without limitation, any and all Claims by other property owners and/or otherdevelopers relating to City's provision of water to said property owners and/ordevelopers arising out of Developer's and/or Contractor's negligent performanceunder this Agreement and/or failure to complete the Water FacilitiesImprovements by the Completion Date. Developer's duty to indemnify pursuant


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9. Sufficiency of Insurer or Surety.Insurance or bonds required by this Agreement shall be satisfactory only if issued bycompanies qualified to do business in California, rated A or better in the most recentedition of Best Rating Guide, the Key R ating Guide or in the Federal Reg ister, and only ifthey are of a financial category Class VU or better, unless such requirements are waivedby City due to unique circumstances. In the event the Risk Manager of City ( RiskManager ) determines that the Work or Services to be performed under this Agreementcreates an increased risk of loss to the City, Developer agrees that the minimum limits ofthe insurance policies required by Section 8 may be changed accordingly uponDeveloper's receipt of written notice from City; provided that the Developer shall havethe right to appeal a determination of increased coverage to the City Council of Citywithin ten (10) days of receipt of said notice. The City Manager of City may, in his/hersole discretion, waive or modify the insurance requirements set forth in Section 8 at therequest of Developer.10. Sources and Method of Reimbu rsement.

10.1. Source of ReimbursementDeveloper understands and agrees the Reimbursement shall be limited to theAvailable CFD Funds, and the City shall have no obligation to reimburseDeveloper from funds other than the Available CFD Funds. Developerunderstands and agrees that, pursuant to the terms of the CFD 2004-3 FinancingPlan, any shortfall in financing the Water Facilities Improvements are theresponsibility of Developer. Developer further understands and agrees that Cityshall also be entitled to reimbursement from the Available CFD Funds for any and


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ninety percent (90%) of the value of the actual work completed since thecommencement of the Water Facilities Improvements as determined by the Citypursuant to such supporting information as may be reasonably required by City todocument Developer's expenditures; and thereafter, prior to every forty fifth(45th) day as the Water Facilities Improvements progress, Developer shall be paidsuch sum as will bring the total payments received, since the commencement ofthe Water Facilities Improvements, as reasonably determined by the City (less allprevious payments) to ninety percent (90%) of the value of the actual workcompleted. In no case shall the amount withheld by the City be of a value lessthan ten percent (10%) of the value of the work completed. Payments shall bemade only be made upon submittal of required supporting documents anddetermination by the Director, or Director's designee, that the work for whichpayment is demanded has been performed in accordance with the terms of thisAgreement, and that the amount demanded is due under the terms of thisAgreement. The partial payments provided for herein shall not be considered asan acceptance of any part of the Wo rk.10.3. Final Accounting and Paymen t.Upon completion of construction of the Water Facilities Improvements,Developer shall submit to City a final accounting to deteimine the total costs ofthe work. Developer shall also submit to City such supporting information asmay be reasonably required by City to document Developer's expenditures on theWater Facilities Improvements. No earlier than thirty-five (35) days afteracceptance of the Water Facilities Improvements by the City Council of the Cityand the recording of the Notice of Completion, and no later than sixty (60) daysafter said recording, City shall reimburse Developer for the actual costs incurredin constructing the Water Facilities Improvements (less all previous payments).City shall make such final payment to Developer after Developer has submitted


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11.3. Covenant Against Discrimination.Developer covenants that, by and for itself, its successors and assigns, and allpersons claiming under or through them, that there shall be no discriminationagainst or segregation of, any person or group of persons on account of race,color, creed, religion, sex, marital status, national origin, or ancestry in theperformance of this Agreement. To the extent required by law, Developer andContractor shall take affi ative action to insure that applicants are employed an dthat employees are treated during employment without regard to their race, color,creed, religion, sex, marital status, national origin, or ancestry.

12. iscellaneous P rovisions.12.1. Enforcement C osts.Developer shall reimburse City for any direct costs or expenses that Cityreasonably incurs, including City staff time and attorney's fees, in taking actionsthat Developer requests or requires City to take pursuant to this Agreem ent.12.2. Notices.All notices or other communications required or permitted hereunder shall be inwriting and shall be either personally delivered (which shall include delivery bymeans of professional overnight courier service which confimis receipt in writing[such as Federal Express or UPS] ), sent by telecopier or facsimile ( Fax )machine capable of confirming transmission and receipt, or sent by certified orregistered mail, return receipt requested, postage prepaid to the following partiesat the following addresses or num bers:


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With copy to: ith a copy to:

Wood ruff, Spradlin Smart701 S outh Parker St., Ste. 8000Orange, CA 92868-4760Attn: Edw ard Z. Kotkin,City A ttorney ttn:Telephone: (714) 564-2635 elephone:Fax: (714) 565-2535 ax:Notices sent in accordance with this Section 12.2 shall be deemed delivered uponthe: a) date of delivery as indicated on the written confirmation of delivery (ifsent by overnight courier service); b) date of actual receipt (if personallydelivered by other means); c) date of transmission (if sent by telecopier orfacsimile machine); or d) date of delivery as indicated on the return receipt (ifsent by certified or registered mail, return receipt requested). Notice of change ofaddress shall be given by written notice in the manner detailed in this Section14.2.12.3. Breach and Remedies.Notwithstanding any provision of this Agreement to the contrary, Developer shallnot be deemed to be in default under this Agreement with respect to anyobligation owed to City, unless City shall have first delivered a written notice ofany alleged default to Developer that specifies the nature of such default. If suchdefault is not cured by Developer within thirty (30) days after receipt of suchnotice of default, or with respect to defaults that cannot be cured within suchperiod, Developer fails to commence to cure the default within thirty (30) daysafter receipt of the notice of default, or thereafter fails to diligently pursue the


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12.5. Entire Agreement.

This Agreement and the Exhibits herein contain the entire integrated agreementamong the Parties. The Parties intend that this Agreement state their agreement infull to each and every one of its provisions. ny prior agreements,understandings, promises, negotiations or representations respecting the mattersdealt with herein or the duties of any Party in relation thereto, not expressly setforth in this Agreement, are agreed by all Parties to be null and void.12.6. Severability.If any term, provision, condition, or covenant of this Agreement, or theapplication thereof to any Party or circumstance, shall to any extent be heldinvalid or unenforceable, the remainder of the instrument, or the application ofsuch term, provision, condition or covenant to persons or circumstances otherthan those as to whom or which it is held invalid or unenforceable, shall not beaffected thereby and each teiiii and provision of this Agreement shall be valid andenforceable to the fullest extent permitted by law.12.7. Counterparts.This Agreement may be executed in one or more counterparts, each of which willbe deemed an original, but all of which constitute one and the same instrument.12.8. Binding Effect.This Agreement shall be binding on and inure to the benefit of the Parties to thisAgreement and their agents, servants, heirs, personal representatives, andsuccessors, except as otherwise provided in this Agreement.


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12.11. No Third Party Beneficiaries.This Agreement is made and entered into for the sole protection and benefit of theParties and their Successors. No other person or entity shall have any right ofaction based upon any provision of this Agreement.12.12. Waiver.Failure by a Party to insist upon the strict performance of any of this Agreement'sprovisions by the other Party, or the failure by a Party to exercise its rights uponthe default of the other Party, shall not constitute a waiver of such Party's right toinsist and demand strict compliance by the other Party with the terms of thisAgreement thereafter, and shall not be deemed a continuing waiver or a waiver ofany subsequent breach of that or any other provision of this Agreement.12.13. Headings.The headings in this Agreement are inserted for convenience only. They do notconstitute part of this Agreement and shall not be used in its construction.12.14. Jointly Drafted.It is agreed among the Parties that this Agreement was jointly negotiated andjointly drafted by the Parties and their respective counsel, and that it shall not beinterpreted or construed in favor of or against any party solely on the ground thatit drafted the Agreement. It is also agreed and represented by all Parties that saidParties were of equal or relatively equal bargaining power and that in no waywhatsoever shall this Agreement be deemed to be a contract of adhesion, orunreasonable or unconscionable.


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C),{thia Hernandez, City ClerkAPPROVED AS TO FORM:

12.17. Enforceability.This Agreement shall not become binding and shall have no force and effectwhatsoever until such time as it has been fully executed by and delivered to all ofthe parties hereto.IN WITNESS WHEREOF, the undersigned have executed and entered into this

Agreement as of the date first written above.

CITY OF INDIO NDIO ENT RES LLC

Gene Gilbert, Mayor ruce Eliff, Managing Paitn

ATTEST:

Edward Z. ty Attorney


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EXHIBIT ANature and Scope of W ater Facilities Improvements

Component N o. 1 Pump StationConstruct a domestic water pump station, in the immediate vicinity of the Terra LagoGolf Clubhouse to provide needed domestic and fireflow for the Trendwest time sharecommunity and residential neighborhoods directly to the east of the pump station site.The pum p station w ill tie into an existing 18-inch transmission main and the proposed 24-inch transmission ma in described below.Component No . 2 Water LineConstruct approximately 4,900 linear feet of 24-inch ductile iron water transmission mainfrom the intersection of Golf Center Parkway and Terra Lago Parkway, along Terra LagoParkway to the proposed Pump Station site.


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EXHIBIT B

Developer's Estimated Costs

COMPONENT CONTRACTOR ESTIMATED COST

Engineering / Design Services Stantech $81,750.00

Water Line Chactaw $987,800.00

Pump Station Palm Springs Pump $998,230.00*

TOTAL ESTIMATED COSTS $2,067,780*

* Estimated Costs are subject to change, pending approval by the Director of PublicWorks.


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LEGAL DESCRIPTION

THAT PORTION OF LOT E OF TRACT MAP NO. 31631 RECORDED IN BOOK 363 OFMAPS, PAGES 32 THROUGH 37, INCLUSIVE, RECORDS OF RIVERSIDE COUNTY,CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:PARCEL ACOMMENCING AT THE MOST SOUTHERLY COMMON CORNER OF LOTS E ANDBB OF SAID TRACT MAP NO. 31631;THENCE SOUTH 6558'27 EAST 17.50 FEET;THENCE SOUTH 2020'07 EAST 7.07 FEET TO A POINT HEREINAFTER REFERRED TOAS POINT A ;THENCE SOUTH 6520'07 EAST 30.74 FEET TO THE POINT OF BEGINNING;THENCE NORTH 2439'53 EAST 60.00 FEET;THENCE SOUTH 6520'07 EAST 45.00 FEET;THENCE SOUTH 2439'53 WEST 60.00 FEET;THENCE NORTH 6520'07 WEST 45.00 FEET TO THE POINT OF BEGINNING.SAID DESCRIBED PARCEL A CONTAINS 2,700 SQUARE FEET, MORE OR LESS.


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LEGAL DESCRIPTION

THE SIDELINES OF SAID EASEMENT SHALL BE LENGTHENED OR SHORTENED SO ASTO TERMINATE ALONG THE SOUTHERLY LINE OF HEREINABOVE DESCRIBEDPARCEL A AND THE NORTHERLY RIGHT OF WAY LINE OF TERRA LAGOPARKWAY AS SHOWN ON SAID TRACT MAP NO. 32462-1.FOR GRAPHICAL PURPOSES SEE EXHIBIT B ATTACHED HERETO AND BY THISREFERENCE MADE A PART HEREOF.

Prepared under the supervision of:

Date:Angela E. Dorf, P.L.S. #8010Expires 12/31/06STANTEC CONSULTING73-733 Fred Waring Drive, Suite 100Palm Desert, CA 92260(760) 346-9844


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SHEET 1 OF 1TRACT MAP NO. 3/631MB 363/32-37

LOT'SP.O.C. c o

.

0))o1 PREPARED BY:

ANGELA E DORF, PLS 8010 ATE

, ? 2 % .

2004-3 area 2 mr construction agreement. 10.16.2006pdf

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