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CITY COUNCILAND AS SUCCESSOR AGENCY TO THE

COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS

CITY OF PALM SPRINGS, CALIFORNIACouncil Chamber, City Hall

3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262www.palmspringsca.gov

REGULAR MEETING AGENDA

November 28, 2018

4:30 PM CLOSED SESSION6:00 PM REGULAR MEETING

Robert Moon, MayorJ. R. Roberts, Mayor Pro Tem

Christy Gilbert Holstege, CouncilmemberGeoff Kors, Councilmember

Lisa Middleton, Councilmember

City of Palm Springs Mission Statement: Palm Springs is an inclusive world-class city dedicated toproviding excellent and responsive public services to enhance the quality of life for current and futuregenerations.

David H. Ready, Esq., Ph.D., City ManagerAnthony J. Mejia, MMC, City Clerk

Marcus Fuller, MPA, P.E., P.L.S., Assistant City Manager Edward Z. Kotkin, City Attorney

Marla L. Pendleton, CPA, Interim Director of Finance and Treasurer

Any person who wishes to provide public testimony for an Item on the Agenda MUST file a speaker card prior to the PublicTestimony (Non-Public Hearing Agenda Items Only) prior to that portion of the meeting. Testimony for Public Hearings will beallowed only during the Public Hearing. [Two (2) minutes per speaker]

Testimony for Public Hearings will only be taken at the time of the hearing. Any person who wishes to speak at a PublicHearing must file a “Speaker Card” with the City Clerk BEFORE the Public Hearing is called. [Two (2) minutes per speaker]

Any person who wishes to speak on a topic not on the agenda within the City’s jurisdiction during the “Public Comments”portion of the agenda must file a “Speaker Card” with the City Clerk BEFORE that portion of the agenda is called. [Two (2)minutes per speaker] Although the City Council values your comments, pursuant to the Brown Act, it generally cannot take anyaction on items not listed on the posted agenda.

Please note, any agenda item which has not been initiated by 11:00 p.m. may be continued to a subsequent meeting.

At approximately 10:00 p.m., the City Council will determine the number of speakers who wish to address the City Council duringPublic Comment for non-Agenda Items, and determine which agenda items will be considered before the 11:00 p.m.Adjournment time.

The City Council encourages written public testimony prior to the meeting, which provides the City Council ample time and attentionfor consideration. All written testimony will be provided to the City Council prior to the discussion. Written testimony may be sent viaemail to [email protected], by fax at (760) 322-8332, or hand delivery to the City Clerk, Palm Springs City Hall, 3200 E.Tahquitz Canyon Way, Palm Springs, CA 92262.

http://www.palmspringsca.gov

http://[email protected]

4:30 P.M. CLOSED SESSION

CALL TO ORDER (Council Chamber):

PUBLIC COMMENT FOR CLOSED SESSION ITEMS ONLY (Council Chamber): The City Councilwelcomes public input. Members of the public may address the City Council by completing a publiccomment card and giving it to the City Clerk prior to the meeting. Pursuant to State Law, the CityCouncil may not discuss or take action on issues not on the meeting agenda (Government CodeSection 54954.2).

RECESS TO CLOSED SESSION (Small Conference Room): See Closed Session Agenda.

6:00 P.M. REGULAR MEETING

CALL TO ORDER:

PLEDGE OF ALLEGIANCE:

ROLL CALL:

PRESENTATIONS:

ACCEPTANCE OF THE AGENDA: The City Council will discuss the order of the agenda, may amendthe order, add urgency items, note abstentions or "no" votes on Consent Calendar items, and requestConsent Calendar items be removed from the Consent Calendar for discussion. The City Council mayalso remove items from the Consent Calendar prior to that portion of the Agenda.

REPORT OF CLOSED SESSION:

PUBLIC TESTIMONY: (Non-Public Hearing Agenda Items ONLY)This time has been set aside for members of the public to address the City Council only on agendaitems. Two (2) minutes will be assigned to each speaker. Testimony for Public Hearings will only betaken at the time of the hearing, and General Public Comments, non-agenda items, will be taken later inthe meeting.

CITY COUNCIL, SUBCOMMITTEE, AND CITY MANAGER'S COMMENTS AND REPORTS: This timeis set aside for the City Council to provide additional general comments, reports, and announcements.Additionally, this time is set aside for the City Manager to update the City Council on important itemsinitiated by staff or previously requested by the City Council.

1. CONSENT CALENDAR:The following routine matters may be acted upon by one motion. Individual items may beremoved by the Council for separate discussion at this time or under Acceptance of theAgenda. The ordinance title is deemed to be read in its entirety and further reading waived onany ordinance listed on the Consent Calendar.

A. SECOND READING OF ORDINANCE NO. 1968, REPEALING PALM SPRINGS MUNICIPAL

November 28, 2018 City Council Regular Meeting Agenda 2

A. SECOND READING OF ORDINANCE NO. 1968, REPEALING PALM SPRINGS MUNICIPALCODE SECTION 11.16.040:RECOMMENDATION:Waive the second reading of the ordinance text in its entirety, read by title only, and adoptOrdinance No. 1968, “AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA,REPEALING PALM SPRINGS MUNICIPAL CODE SECTION 11.16.040.”

B. PALM SPRINGS INNOVATION HUB AND ACCELERATOR CAMPUS QUARTERLYREPORT FOR JULY 1, 2018, TO SEPTEMBER 30, 2018:RECOMMENDATION:Receive and file the quarterly report from the Coachella Valley Economic Partnership for thePalm Springs Innovation Hub for the period of July 1, 2018, to September 30, 2018.

C. STAFF AUTHORIZED AGREEMENTS AND PURCHASE ORDERS FOR THE MONTH OFOCTOBER 2018:RECOMMENDATION:Receive and file the report of Staff Authorized Agreements and Purchase Orders for the periodof October 1 through October 31, 2018.

D. APPROVAL OF AMENDMENT NO. 7 TO THE PROFESSIONAL SERVICES AGREEMENTWITH CNS ENGINEERS, INC., IN THE AMOUNT OF $170,360.48 FOR THE RAMON ROADWIDENING (FROM SAN LUIS REY DR. TO LANDAU BLVD.) INCLUDING THEWHITEWATER RIVER BRIDGE WIDENING, FEDERAL-AID PROJECT NO. BHLS-5282(040) CP 08-25:RECOMMENDATION:

Approve Amendment No. 7 to the Professional Services Agreement with CNS Engineers,Inc., a California corporation, to incorporate additional engineering design and right of wayservices in the amount of $170,360.48 for an increased total contract amount of$3,402,592.23 for the Ramon Road Widening (San Luis Rey Dr. to Landau Blvd.)including the Whitewater River Bridge Widening, Federal-Aid Project No. BHLS-5282(040) CP 08-25. A6190.

1.

Authorize the City Manager to execute all necessary documents.2.

E. ACCEPTANCE OF THE AIRPORT TICKETING RENOVATION PROJECT ENABLINGPHASE 1, CP 18-02:RECOMMENDATION:

Accept the public works improvement identified as the Airport Ticketing RenovationProject Enabling Phase 1, as completed in accordance with the plans and specifications,CP 18-02.

1.

Authorize the City Engineer to execute and file for recordation with the Riverside CountyRecorder a Notice of Completion for the Airport Ticketing Renovation Project EnablingPhase 1, CP 18-02.

2.

F. PURCHASE OF NEWS RACKS FOR THE DOWNTOWN/UPTOWN BUSINESS DISTRICTAREAS:RECOMMENDATION:

In accordance with Palm Springs Municipal Code Section 7.04.020 “Sole SourceProcurement by the City,” authorize issuance of a Purchase Order in the amount of$38,228.47, to City News Stands of Indianapolis, IN, for the purchase of seven (7) newsracks.

1.



G. APPROVE AMENDMENT NO. 1 IN THE AMOUNT OF $131,353 TO THE PROFESSIONALSERVICES AGREEMENT WITH RICONDO & ASSOCIATES FOR AIRLINE LEASE ANDTERMINAL CONCESSION SERVICES:RECOMMENDATION:

Approve Amendment No. 1 in the amount of $131,353 to Professional ServicesAgreement No. A6938 with Ricondo & Associates.

1.


H. RECEIVE AND FILE REPORT RE: “FRIEND OF THE COURT” BRIEF FILED IN THE NINTHCIRCUIT COURT OF APPEALS, IN SUPPORT OF THE STATE OF CALIFORNIA, INUNITED STATES v. CALIFORNIA, A FEDERAL GOVERNMENT CHALLENGE AGAINSTRECENT STATE LAWS RELATED TO IMMIGRATION POLICY:RECOMMENDATION: Receive and file this report along with a true and correct copy of the brief filed.

EXCLUDED CONSENT CALENDAR: Items removed from the Consent Calendar for separatediscussion are considered at this time.

2. PUBLIC HEARINGS:

A. AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, TOEXTEND A TEMPORARY MORATORIUM ON CONVERSIONS OF GOLF COURSES TOOTHER USES FOR AN ADDITIONAL FOUR (4) MONTHS TO ALLOW FORCONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN ORMUNICIPAL CODE IN ACCORDANCE WITH GOVERNMENT CODE SECTION 65858:RECOMMENDATION:

Open the Public Hearing and receive public testimony.1.Waive the reading of the ordinance text in its entirety, read by title only, and adopt anOrdinance entitled "AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALMSPRINGS, CALIFORNIA, TO EXTEND INTERIM URGENCY ORDINANCE NO. 1967FOR AN ADDITIONAL FOUR (4) MONTHS AND CONTINUE FOR THIS PERIOD ATEMPORARY MORATORIUM ON THE CONVERSION OF GOLF COURSES TOOTHER USES TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTSTO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE WITHGOVERNMENT CODE SECTION 65858 (4/5ths Vote Required) ."

2.

3. LEGISLATIVE:

A. PROPOSED ORDINANCE TO ALLOW ANY AIRPORT COMMISSION MEMBER TO SERVEAS CHAIRPERSON:RECOMMENDATION:Waive the reading of the ordinance text in its entirety, read by title only, and introduce for firstreading an Ordinance entitled “AN ORDINANCE OF THE CITY OF PALM SPRINGS,CALIFORNIA, AMENDING SECTION 2.16.040 RELATING TO THE SELECTION OFCHAIRPERSON FOR THE PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION.”


4. UNFINISHED BUSINESS:

A. APPROVAL OF A FINAL RELEASE OF THE PERFORMANCE TRUST DEED RELATED TOTHE DOWNTOWN PALM SPRINGS PROJECT:RECOMMENDATION:Authorize the City Manager to execute a Substitution of Trustee and Deed of FullReconveyance by and between the City of Palm Springs (Beneficiary) and Palm SpringsPromenade, LLC, (Trustor) for the Downtown Palm Springs Project in accordance with Section2(b)(10) of that certain Project Financing Agreement dated September 29, 2011, approved onSeptember 7, 2011. A6144.

5. NEW BUSINESS:

A. UPDATE REGARDING RECRUITMENT EFFORTS FOR THE CITY’S BOARDS ANDCOMMISSIONS:RECOMMENDATION:

Consider waiving the procedures in Resolution No. 18804 Section 7(b), to allow for theCity Council as a whole, to participate in the screening and interview of applicants for theHistoric Site Preservation Board, Measure “J” Oversight Commission, and the PlanningCommission.

1.

Waive the procedures in Resolution No. 18804 Section 7(b) which provide for the Mayorto select and participate in all subcommittees.

2.

Provide additional direction as appropriate.3.

PUBLIC COMMENT: (Non-Agenda Items) This time has been set aside for members of the public toaddress the City Council on items of general interest within the subject matter jurisdiction of the City.Although the City Council values your comments, pursuant to the Brown Act, it generally cannot takeany action on items not listed on the posted agenda. Two (2) minutes will be assigned to each speaker.

CITY COUNCIL AND CITY MANAGER REQUESTS AND UPCOMING AGENDA DEVELOPMENT:This time is set aside for the City Council to make requests of staff, and/or issues of concern toCouncilmembers are briefly presented, prioritized and set for future meeting dates.

ADJOURNMENT: The City Council will adjourn to a Special Meeting on Thursday, November 29, 2018,at 6:00 p.m. in the Council Chamber at City Hall, preceded by Closed Session, Small ConferenceRoom, City Hall, 3200 East Tahquitz Canyon Way, Palm Springs.

AFFIDAVIT OF POSTING

State of California )County of Riverside ) ss.City of Palm Springs )

I, CYNTHIA A. BERARDI, Chief Deputy City Clerk of the City of Palm Springs, California, herebycertify this Agenda was delivered to each member of the City Council, provided to all parties whohave requested such notice, posted at City Hall before 5:00 p.m., on November 23, 2018, andposted on the City’s website as required by established policies and procedures.

____________________________ CYNTHIA A. BERARDI, CMC Chief Deputy City Clerk

P U B L I C N O T I C E S


P U B L I C N O T I C E S

Pursuant to G.C. Section 54957.5(b)(2) the designated office for inspection of records in connection with the meeting is theOffice of the City Clerk, City Hall, 3200 E. Tahquitz Canyon Way. Complete Agenda Packets are available for public inspectionat: City Hall Office of the City Clerk. Agenda and staff reports are available on the City’s website www.palmspringsca.gov. Ifyou would like additional information on any item appearing on this agenda, please contact the Office of the City Clerk at(760) 323-8204.

It is the intention of the City of Palm Springs to comply with the Americans with Disabilities Act (ADA) in all respects. If, as anattendee or a participant at this meeting, or in meetings on a regular basis, you will need special assistance beyond what isnormally provided, the City will attempt to accommodate you in every reasonable manner. Please contact the Office of the CityClerk, (760) 323-8204, at least 48 hours prior to the meeting to inform us of your particular needs and to determine ifaccommodation is feasible.


City Council Regular Meeting Meeting Date: 11/28/2018

Subject4:30 P.M. CLOSED SESSION

AttachmentsClosed Session Agenda

CITY COUNCIL AND AS SUCCESSOR AGENCY TO THE

COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF THE PALM SPRINGS

CLOSED SESSION AGENDA Wednesday, November 28, 2018 – 4:30 P.M.

City Hall, Small Conference Room

3200 East Tahquitz Canyon Way, Palm Springs Palm Springs, CA 92262

PUBLIC COMMENT PERIOD FOR CLOSED SESSION ITEMS ONLY (Time limit is two minutes per person) The City Council welcomes public input. Members of the public may address the City Council by completing a public comment card and giving it to the City Clerk prior to the meeting. Pursuant to State law, the City Council may not discuss or take action on issues not on the meeting agenda (Government Code Section 54954.2). CONFERENCE WITH LEGAL COUNSEL. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following described matter(s) will prejudice the position of the City in existing and anticipated litigation. EXISTING LITIGATION G.C. 54956.9(d)(1)

4348 Lockwood Ave LLC et al v. City of Palm Springs Case No. RIC 1703102, Riverside County Superior Court, Riverside Division EHOF Canyon View, LLC v. City of Palm Springs Case No. PSC 1806289, Riverside County Superior Court, Palm Springs Division

ANTICIPATED LITIGATION G.C. 54956.9(d)(2)

Eight (8) Cases Including: Robolights 2018-19

INITIATION OF LITIGATION G.C. 54956.9(d)(4)

Two (2) Cases

PUBLIC EMPLOYEE PERFORMANCE EVALUATION G.C. 54957(b)(1)

City Attorney

Closed Session Agenda November 28, 2018 Page 2 CONFERENCE WITH REAL PROPERTY NEGOTIATOR G.C. 54956.8

Property Address/Description: State Highway 111, Vista Chino and Gene Autry Trail Within the Boundaries of the City of Palm Springs Agency: City of Palm Springs City Negotiator: David H. Ready, City Manager or Designee Negotiating Parties: State of California, Caltrans Under Negotiation: Terms of Payment (Relinquishment)

Property Address/Description: 980 E. Tahquitz Canyon Way, APN 508-056-010 Agency: City of Palm Springs City Negotiator: David H. Ready, City Manager or Designee Negotiating Parties: Palm Springs Unified School District; Sandra Lyon,

Superintendent Under Negotiation: Price and Terms of Payment (Lease or Purchase)

Property Address/Description: 3.6 Acres at SE corner of Indian Canyon Drive and

San Rafael Road APN 501-031-028 Agency: City of Palm Springs as Housing Successor City Negotiator: David Ready, City Manager or Designee Negotiating Parties: Community Housing Opportunities Corporation

(CHOC) Under Negotiation: Price and Terms of Payment (Sale)

CONFERENCE WITH LABOR NEGOTIATOR G.C. 54957.6

Agency Designated Representatives: City Manager David Ready and Attorney Peter Brown Employee Organizations: Palm Springs Fire Management Association

Palm Springs Police Management Association Palm Springs Police Officers Association Service Employees International Union Local 721

City Council Regular Meeting 1.A. Meeting Date: 11/28/2018

SubjectSECOND READING OF ORDINANCE NO. 1968, REPEALING PALM SPRINGS MUNICIPALCODE SECTION 11.16.040:RECOMMENDATION:Waive the second reading of the ordinance text in its entirety, read by title only, and adoptOrdinance No. 1968, “AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA,REPEALING PALM SPRINGS MUNICIPAL CODE SECTION 11.16.040.”

Attachments1A Second Reading Ord 1968

City Council Staff Report DATE: November 28, 2018 CONSENT CALENDAR

SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO. 1968, REPEALING PALM SPRINGS MUNICIPAL CODE SECTION 11 .16.040

FROM: David H. Ready, City Manager

BY: Office of the City Clerk

SUMMARY:

The City Council will consider adoption of Ordinance No. 1968.

RECOMMENDATION:

Waive the second reading of the ordinance text in its entirety, read by title only, and adopt Ordinance No. 1968, "AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, REPEALING PALM SPRINGS MUNICIPAL CODE SECTION 11 .16.040."

STAFF ANALYSIS:

On November 14, 2018, Ordinance No. 1968 was introduced for first reading, as noted below:

ACTION: Waive the read ing of the full text of the ordinance in its entirety, read by title only, and introduce for first reading Ordinance No. 1968, "AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, REPEALING PALM SPRINGS MUNICIPAL CODE SECTION 11 .16.040." Motion by Mayor Pro Tern Roberts, second by Mayor Moon, and carried 3-2.

AYES: NOES: ABSENT: ABSTAIN:

Councilmember Middleton, Mayor ProTem Roberts, and Mayor Moon Councilmembers Holstege and Kors None None

This report provides for the City Council to waive further reading and adopt the ordinance. The ordinance shall be effective 30-days from adoption.

ra::M No. j_ · A·

ADOPTION OF ORDINANCE NO. 1968 November 28, 2018 Page 2 of 2

~~ ~~ ~~~~~--~~~~~---------- ==------~~~~-~--~~=-------.A!Ony~~ David H. Ready, E ., . . City Clerk City Manager

/cab

Attachment: Ordinance No. 1968

2

ORDINANCE NO. 1968

AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA REPEALING PALM SPRINGS MUNICIPAL CODE SECTION 11.16.040.

City Attorney's Summary This Ordinance repeals a provision of the Palm Springs Municipal Code that is adequately addressed by state law.

THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS:

The City Council of the City of Palm Springs ordains:

SECTION 1. Title 11, Chapter 11.16, Section 11.16.040 of the Palm Springs Municipal Code (PSMC), the section of the City's municipal code that provides for a "Duty to Report Theft or Loss of Firearms," is hereby repealed.

SECTION 2. Neither introduction nor adoption of this Ordinance represents a "project" for purposes of the California Environmental Quality Act (CEQA), as that term is defined by CEQA guidelines (Guidelines) section 15378, because this Ordinance is an organizational or administrative activity that will not result in a direct or indirect physical change in the environment, per section 15378(b )(5) of the Guidelines.

SECTION 3. The Mayor shall sign, and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of applicable law; this Ordinance shall take effect thirty (30) days after passage.

PASSED AND ADOPTED THIS __ DAY OF NOVEMBER 2018.

AYES: NOES: ABSTAIN: ABSENT:

Robert Moon, Mayor ATTEST:

Anthony J. Mejia, MMC, City Clerk

3

City Council Regular Meeting 1.B. Meeting Date: 11/28/2018

SubjectPALM SPRINGS INNOVATION HUB AND ACCELERATOR CAMPUS QUARTERLY REPORTFOR JULY 1, 2018, TO SEPTEMBER 30, 2018:RECOMMENDATION:Receive and file the quarterly report from the Coachella Valley Economic Partnership for thePalm Springs Innovation Hub for the period of July 1, 2018, to September 30, 2018.

Attachments1B iHub Quarterly Report

CITY COUNCIL STAFF REPORT

DATE: November 28, 2018 CONSENT CALENDAR

SUBJECT: PALM SPRINGS INNOVATION HUB AND ACCELERATOR CAMPUS QUARTERLY REPORT FOR JULY 1, 2018 TO SEPTEMBER 30, 2018


BY: Community and Economic Development

SUMMARY

The Consulting Services Agreement with the Coachella Valley Economic Partnership ("CVEP") requires CVEP to prepare and submit quarterly Palm Springs Innovation Hub ("PSiHub") reports. The PSiHub is an incubator that provides programs, services, and incentives to start-up businesses focused on clean technology and renewable energy. It is one of 15 innovation hubs in California and offers qualified companies office space, a conference area, consulting, and administrative support to encourage their growth and success.

RECOMMENDATION:

Receive and file the quarterly report from the Coachella Valley Economic Partnership for the Palm Springs Innovation Hub for the period of July 1, 2018, to September 30, 2018.

STAFF ANALYSIS:

On May 11 , 2010, the City of Palm Springs was designated as an Innovation Hub under the State of California Innovation Hub Program (AB 250). The purpose of iHubs is to stimulate partnerships, economic development, and job creation by leveraging assets to provide an innovation platform for startup businesses, economic development organizations, business groups, and financial institutions. As required by AB250, for iHubs designated by the Governor's Office of Business and Economic Development (GO-Biz) before January 1, 2014, the City entered into a Memorandum of Understanding (MOU) with the GO-Biz on May 21 , 2015.

To manage its efforts and responsibilities as the Designated iHub, the City entered a Consulting Services Agreement with CVEP on July 6, 2016 (Agreement), and amended

II.EM NO. .1. · ~ ·

City Council Staff Report November 28, 2018--Page 2 Coachella Valley Economic Partnership Report

the Agreement in June 2018, for continued management of the PSiHub and Palm Springs Accelerator Campus. The Agreement facilitates the terms by which CVEP delivers management, administrative and client services to meet the goals of the Program, including, but not limited to, providing education, support, training, business assistance, and networking programs. CVEP also manages the physical office space reserved for PSi Hub clients housed at the Rabobank Regional Business Center, located at 3111 E. Tahquitz Canyon Way, and at the Accelerator Campus, located at 2901 E. Alejo Road.

In accordance with the Agreement, CVEP is required to submit quarterly and annual progress reports to the City identifying how the Program is performing. CVEP has submitted its quarterly report covering July 1, 2018, to September 30, 2018, which is included as ATTACHMENT 1 for reference.

Highlights for the quarter include:

• PSiHub companies are estimated to exceed $10 million in revenues in 2018. • SecoSys approved to proceed with installing multiple units at Mission Springs

Water District and received work order from Kansas City company for over $250,000.

• EV Enterprises hired additional personnel to fill order for over $500,000. • Eco Culture Manufacturing was named one of the Top 20 tech based

wearables products in California by GoBiz. • Double Lock Systems has completed fourth stage production prototypes and

is finalizing Federal Small Business Innovation Research Grant. • The number of listeners for Spectrum Media on iHub Radio is steadily

increasing. • CVEP continues to develop Strategic Partnerships, such as:

o Palm Springs Life Magazine which assisted CVEP with their Focus publication;

o Palm Springs Chamber of Commerce to expand co-working space; and,

o Greater Palm Springs Convention and Visitors Bureau which assisted with the cost of CVEP's marketing materials.

The PSiHub is a network designed to enhance Coachella Valley's competitiveness by stimulating partnerships and collaborations that accelerate investment and economic development around research clusters. PSiHub plays an important and unique role in the City of Palm Springs and Coachella Valley in fostering entrepreneurship and attracting firms to enhance and diversify the local economy.

2

City Council Staff Report November 28, 2018--Page 3 Coachella Valley Economic Partnership Report

ENVIRONMENTAL IMPACT:

Section 15061 (b)(3) of the California Environmental Quality Act ("CEQA") Guidelines exempts activities that are covered under the general rule that CEQA applies only to projects that have the potential to cause significant effects on the environment. Where it can be seen with certainty that there is no possibility the activity in question may have a significant effect upon the environment, the activity is not subject to CEQA. The requested action requests the City Council receive and file a quarterly report on the activities of CVEP and the PSiHub, which itself will not result in any new direct physical impacts to the environment. Therefore, the requested action is considered exempt from CEQA.

FISCAL IMPACT:

The City compensates CVEP $200,000 annually, paid in quarterly payments upon submission of the Quarter Report metrics required by the Agreement.

SUBMITTED:

Jay Virata, Director David H:Ready ~ Community & Economic Development City Manager

Attachment 1 - Palm Springs iHub and Accelerator Campus Quarterly Report for July 1 to September 30, 2018

3

ATTACHMENT 1

Palm Springs iHub and Accelerator Campus Quarterly Report

July 1 to September 30, 2018

4

PAlM SPR~NGS

IHUB AND ACCElERATOR CAMPUS

QUARTERLY REPORT July 1- September 30, 2018

Submitted by: Joe Wallace Palm Springs iHub Managing Director September 3, 2018

5

Executive Summary

The Palm Springs Innovation Hub (PSiHub) Is a State designated business incubator funded by the City of

Palm Springs and managed by the Coachella Valley Economic Partnership (CVEP), an economic

development organization serving the entire region. Currently the investors in the iHub are the City of

Palm Springs, the Desert Healthcare District, and Wells Fargo Bank.

In 2013 the City of Palm Springs and the Desert Healthcare District partnered to fund the refurbishment of

a 43,000 square foot complex of buildings now known as the Palm Springs Accelerator Campus. The

purpose for this campus is to encourage promising companies with proven concepts and markets to

establish their supply chains and manufacturing operations in Palm Springs to reduce the risk of flight to

places like Silicon Valley where exemplary incubation clients are often enticed by venture capital.

The iHub's primary focus is on early stage businesses in the renewable energy and associated technology

space. The iHub facilitates education, support, training, business assistance, and networking programs to

contributing members, and overseas operations of a small business incubator.

This report covers the third quarter of 2018. The quarter saw the client base in the iHub exceed capacity

with 7 in-house, 13 at the Accelerator Campus, and 18 virtual clients for a total of 38 clients.

A number of metrics for evaluating PSiHub progress were checked that are consistent with the goals of

creating wealth and setting the transformation of the Coachella Valley economy into motion.

PS iHub Q3 2018 Report

Introduction

The iHub is a network that enhances Coachella Valley's competitiveness by stimulating partnerships and collaborations that

accelerate investment and economic development around research clusters. The iHub is focused on clean technology, with

emphasis on sustainable businesses, renewable energy, and enhancing technologies.

The goals of the iHub include:

• Transform the focal economy through growing renewable energy based enterprises

• Continue to accept 10 companies per year in perpetuity after achieving the goal of SO companies in the first 5 years

• Create local high paying technology and manufacturing jobs in the Coachella Valley

• Develop programs to enable and encourage the Coachella Valley and California compete in the global marketplace

• Increase the per capita household income and standard of living regionally

• Attract angel and venture capital investments in client companies

The iHub operates a small business incubator that has the capacity to mentor up to six clients in-house at the Rabobank Regional

Business Center, twelve at the Accelerator Campus, and twelve virtually. The iHub offers office space to clients, complete with

office equipment and amenities, access to shared conference rooms, a board room, and a dedicated staff that monitors and assists

the clients. CViHub clients have access to professional services at free or reduced costs, targeted training classes, and workshops.

6

Community Relations/ Accolades

The iHub participated in the following events this quarter:

• Riverside County EDA Regional Planning Sessions

• Monthly California Innovation Hub Conference Calls (3)

• CSUSB·PO Advancement Board of Directors: Executive Committee

Palm Springs iHub Clients on September 30, 2018

The iHub started 03·2018 with forty two incubator clients. During the third quarter a total of 4 applications or visits of interest to the iHub were reviewed and two are pending acceptance. The total at the end of the quarter was thirty eight. Twenty Six of these thirty eight clients are what we consider highly active. Highly active is having contact each week on some level

Partnership Activity The partnerships resulted in tangible activity during this quarter:

• Palm Springs Life Magazine second issue with Focus {CVEP publication) inserted

• Partnering with the Palm Springs Chamber to expand open space into a three location co-working space

• Greater Palm Springs CVB completed rebranding survey and covered the cost for our new marketing materials

Metrics: The PSi Hub updates their metrlcs and reports on them quarterly. The metrics include:

Metric

Number of resident companies Number of VIrtual Companies Accelerator Campus Clients

Number of graduating companies

Number of jobs created by PSiHub companies to date

Revenue/sales from PSIHub companies (estimated for quarter)

Investment Dollars Raised by PSiHub Clients

Number of sponsors, corporate partners, members or contracts for the iHub

Number of patent applications and issued patents (total)

Number of licenses or agreements by PSI Hub companies

Funding sources and amounts leveraged/invested

Number of companies receiving outreach services

Number of entities providing outreach services

Result

7 18 13

15 total to date

186 (3 this quarter)

Greater than $1 Million

Greater than $1 Million

Over 200 identified

Patent and Trademark

count is now at 22.

2 in discussion

City of Palm Springs, CVB,

and Palm Desert all

increased

8 (excluding iHub clients)

2

7

Client Highlights from Q3-2018

• It Is estimated that Palm Springs IHub companies will exceed $10 million in 2018

• SecoSys received unanimous approval to proceed with Installation of multiple units at the Missions Springs Water District and received an order from a group out of Kansas City for over $250,000

• EV Enterprises negotiating an order for over $500,000 from a value added reseller out of Phoenix and hired additional personnel

• Eco Culture Manufacturing named one of the Top 20 tech based wearables products in California by GoBiz and gave a presentation on

their business In San Francisco.

• Double lock Systems has now completed the fourth stage of production prototypes and has proven the concept of bacteria reduction

with photo sensitive bacteria. They are finalizing an SBIR grant application.

• Spectrum Media is gaining listeners on the iHub radio online channel with all local shows. listening audience is approaching the

published numbers of K-News

Previously Stated Goals for Q3-2018 All Completed

• Sign management agreement with City of Palm Desert for digital innovation hub • Work out details of capacity and access to City of La Quinta Makerspace • Explore code development opportunities with COD • Nail down details for 2018 CVEP Economic Summit • Full analysis of progress of existing iHub dients

Goals for Q4-2018

• Choose location for digital innovation hub • Work out details of capacity and access to City of La Quinta Makerspace • Explore Cybersecurity presence at digitallHub • Successful 2018 CVEP Economic Summit • Continue analysis of progress of existing I Hub clients

Measure J Progress Report

• All projects completed and all dollars expended and accounted for.

Appendices:

• fHub Companies circa September 30, 2018

8

Palm Springs fHub Roster (End of Q3 2018)

Energy (Renewables/Management/Conservatlon)

3111 E. Tahquitz Canyon Way

Palm Springs, CA 92262 p: (760) 340-1575 p: (760) 548·0370 w:

• Desert GeoExchange: Parent company Geothermal Resource Group provides drilling services. Desert GeoExchange is evaluating its entrance into geothermal heating/cooling systems.

• EV Enterprises: Producer of lithium-ion battery components, microelectronics and other related products for electric vehicle applications and more. •Located at Palm Springs Accelerator Campus

• Heppolt: Heppolt has created a new wind turbine. The design allows for installation & maintenance to be carried out at ground level as opposed to current vertical turbines. HWE is receiving support from Los Alamos National Lab.

• Indy Power Systems: Offers a patented energy blending technology to enable customers to minimize their load charges by storing energy during periods of low demand for use during peak demand times.

• Sactec Solar: A designer and manufacturer of all-in-one alternative energy solution systems. These units can be deployed in regions or situations where power is not easily accessible. •Located at Palm Springs Accelerator Campus

• SECOSYS: Their platform seamlessly integrates into existing water meters to manage, control & conserve water in real-time for water districts, property managers and consumers. •Located at Palm Spr;ngs Accelerator Campus

• So/oris Power Cells: Producer of super capacitor, solid-state cells that have the potential to store energy with rapid charging rates. •Located at Palm Springs Accelerator Campus

• So/Aqua: China-based manufacturer of solar/solar thermal components looking to establish a U.S.-based

manufacturing hub. *Located at Palm Springs Accelerator Campus

• Swiss Hytech: Swiss-based business engaged in hybrid leMans racing. Their technology uses a flywheel to store energy as opposed to other storage systems such as battery systems.

• Vestaxx: German-based startup developing insulating glass units for applications in intelligent and dynamic windows and glass building facades. Their propriety glass coating technology increases thermal insulation efficiency.

• Eco Green Supply: Environmentally-conscious cleaning products formulated to clean more efficiently

and more gently while eliminating pollutants and toxins. •Located at Palm Springs Accelerator Campus

9

Healthcare/Medlcallnnovation

3111 E. Tahqultz Canyon Way Palm Springs, CA 92262

p: (760) 340-1575 p: (760) 548·0370 w:

• ButterFLI Inc.: ButterFLi has created a local infrastructure for on-demand assisted transportation for seniors and those with disabilities, such as those who are wheelchair-bound. ButterFLI is like UBER but for non-emergency medical transportation for seniors and those with disabilities.

• The Connected Grip: The Connected Grip executive team includes a former member of RIM's (Research in Motion) Blackberry team. They are developing new products in the exercise machine category that incorporate new technologies such as predictive modelling and customized Uls.

• Double Lock Systems: Elizabeth Wong is a local CRNA who was recently granted a U.S. patent for a new sterile IV port and syringe system. She is currently working on prototype variations of this system.

• Incontinence Technologies: The Fanny Wrapper is an adult diaper system with an integrated sensor unit used to aid caretakers of incontinent adults.

• Pacific CotJ5t Innovations: Designer of a proprietary data compression algorithm that has many different Industry applications. Their first application will be in the manufacturing of medical devices.

• Pet Projx LLC: Pet Projx is introducing a new hand sanitizer/disinfectant that will focus on the social acceptance, appeal and form factor that currently hinders this category. Pet Projx also has ancillary products to introduce down the road that would expand into the beauty and cosmetics category.

• Priatas: A medical device company focused on intelligent design of medical and lab ware disposables throughout the entire life cycle of the product. By using less material and modulating instruments, they hope to decrease medical waste.

• PureOzone 360: Currently researching a new type of disinfectant that would use proprietary technology for end-consumer sales.

• Restroom Aid: A proprietary system designed to give independence to handicapped individuals who otherwise need assistance using the restroom.

• Shannon Stevens: Shannon Stevens is a local nurse who has developed a medical-product to be used in operating room environment; for the irrigation of limbs or other body parts subjected to trauma that need to be cleaned and treated.

• TransMedlmaglng: Operates in the electronic health record industry. Their propriety service eliminates waste in medical imaging by facilitation of cloud based data, and hi-res medical images storage.

• CAIA (Care Always In All-Ways}: A universal patient portal that gives patients the ability to control and engage with their and their family's healthcare across the entire care continuum by connecting he portal to all existing EHR (Electronic Medical Record) systems using block chain technology as a ledger.

10

3111 E. Tahquitz Canyon Way Palm Springs, CA 92262

p: {760) 340·1575 p: (760) 548-0370 w:

Software- Primary (Education, Ufestyle, Marketing, Social Media)

• Poclal: A new, creative social network designed to connect like·minded individuals based around polling in an effort to foster and encourage debate, create a collective voice and quantify opinions.

• PS Talent: Developer of virtual entertainment products on the Sony PlayStation platform

• /Hub Radio: iHub Radio a cutting-edge, multi·media company leading the way in the production, distribution and marketing of audio and video content, across platforms. *Located at the Palm Springs Accelerator Campus

• Wise Education: Delivers online English as a second language education worldwide using a unique video conferencing platform.

• lnstApp Deals: Developing a smart phone app to facilitate the presentation and use of retail coupons

using customer designations and recommendations to friends and family for delivery.

• Lux Bodega: online rental and subscription service for luxury footwear

Hardware- Primary (Security, Service, Social Media)

• Heightened Security: HS is a local manufacturer of security solutions for residential and commercial clients. Their product can seamlessly integrate into existing security systems.

• Paul Roide: Paul Roide is a local tradesman. He has developed and patented a new paint gun sprayer that aims to dramatically increase the efficiency of currently available models. *Located at the Palm Springs Accelerator Campus

• Post Modern: A developer of integrated hardware/software systems for consumer marketing. Their system allows marketers to integrate social media into marketing events and tradeshows using interactive kiosks. *Located at Palm Springs Accelerator Campus

• Seismic Warning Systems: Developing a regionally-based earthquake warning system with proprietary detection and customized-alert technology.

• Leafy: High·end specialized LED lighting systems for cannabis cultivation.

Textile & Wearables

• Eco Culture Manufacturing: Textile manufacturing focused on recyclable materials and integration of sensor technologies for smart devices.

• HipS-sister: Manufacturer of the fashionable, functional and flattering alternative to the fanny pack that integrates a shield for electromagnetic fields caused by cell phones. "Located at Palm Springs Accelerator Campus

11


p: (760) 340-1575 p: (760) 548·0370 w:

• Advanced American Supply: Garment designer and manufacturer from Canada is moving into the Palm

Springs Accelerator Campus along with sister company Maverick Materials to utilize foreign trade zone

(FTZ) for manufacturing for expo. •Located at Palm Springs Accelerator Campus

12

City Council Regular Meeting 1.C. Meeting Date: 11/28/2018

SubjectSTAFF AUTHORIZED AGREEMENTS AND PURCHASE ORDERS FOR THE MONTH OFOCTOBER 2018:RECOMMENDATION:Receive and file the report of Staff Authorized Agreements and Purchase Orders for the periodof October 1 through October 31, 2018.

Attachments1C Staff Authorized Agrs & POs

Citv Council Staff Report ..


SUBJECT: STAFF AUTHORIZED AGREEMENTS AND PURCHASE ORDERS FOR THE MONTH OF OCTOBER 2018

FROM: David H. Ready, Esq. , Ph.D., City Manager

BY: Office of the City Clerk Procurement Department

RECOMMENDATION:

Receive and file the report of Staff Authorized Agreements and Purchase Orders for the period of October 1 through October 31,2018.

AGREEMENTS

Number Vendor Description Amount Department

A7126 Archico Design Build , Inc. Change Order No. 3, Fire Station $2,934.93 Engineering No. 4 Remodel, CP 15-25

A7126 Archico Design Bui ld, Inc. Change Order No. 4, Fire Station $11 ,930.63 Engineering No. 4 Remodel, CP 15-25

A6430 Main Street Palm Springs Promotion of Downtown and $12,000.00 Community & Economic Uptown Activities and Events Dev.

Camelot Theaters Human Rights Commission Film $500.00 Community & Economic Screening Fundraiser Dev.

A6420 David Caygill, Touch of Musical Entertainment for $1,800.00 Parks & Recreation Class Ballroom Dance Program

A5727 Pacific Decorating Install/Removal of Holiday $20,051 .62 Maintenance & Fac. Company Decorative Lighting

A6938 Ricondo & Associates, Inc. Consent to Change in Control No Additional Aviation Cost to City

A7127 Eastern Lion, LLC Amendment No. 1, Purchase and No Additional Community & Economic Sale of Public Artwork Cost to City Dev.

A7138 Granite Construction Co. Change Order No. 1, Convention $17,594.95 Engineering Center Parking Lot Phase 2, CP 17-14

A7220 Saul H. and Florence Ramon Bridge Widening - San $17,750.00 Engineering Greene Luis Rey to Landau Acquisition,

CP 08-25 A6915 W. M. Lyles Co. Change Order No. 22, $102,240.00 Engineering

Wastewater Treatment Plant Upgrade, CP 15-14

ii'EM No._l: ,C, .

'

City Council Staff Report November 28, 2018 --Page 2 Agreements and Purchase Orders, Month of October 2018

Number Vendor

A7224 Southwest Protective Services, Inc.

A7225 Starbound Entertainment

A6918 Michael Baker International, Inc.

A7175 Ramon-Lakeview Villas HOA

A7176 HenryGioriaArroyo, LLC

AGREEMENTS (continued)

Description

Un-armed Uniformed Security Guard Services for Annual Events Inflatable Balloons for Festival of Lights Parade Amendment No. 1, Traffic Signal Modifications, CP 15-32 Escrow Instructions for Temporary Construction Easement Agreement Escrow Instructions for Right of Way and Temporary Construction Easement Agreements

Amount

$17,175.50

$12,000.00

No Additional Cost to City $2,371.00

$7,771.00

AGREEMENTSANDPURCHASEORDERS None this reporting period.

PURCHASE ORDERS

Number Vendor Description Amount

19-0663 Proforce Marketing Inc. Taser Equipment $19,801.57

19-0666 Scene Creative Event Management $24,000.00

19-0671 Maria Shafer Consulting Svs - Meeting $5,000.00 Minutes

19-0672 Ralph Anderson & Assoc. Ex Search for Director of $23,490.00 Building

19-0689 Riselo Engineering Loading Bridge Repairs $10,810.05

19-0695 Ralph Anderson & Assoc. Ex Search for Recreation $22,990.00 Director

19-0702 Airwave Communications Kenwood Radios and $7,816.69 Programin_g

19-0709 Sanborn Architecture Survey Plaza Theater $7,500.00

19-0723 Teleira Voice Over lnUsatellite phones $9,590.00

19-0743 Mile High Shooting Rifles $15,296.83

19-0744 Global Access Supply Lighting Fixtures $13,130.21

19-0745 HCI Environmental Waste Disposal $12,885.34

19-0746 Western Pump Pulsers for Pump $5,162.94

19-0747 HARC Inc. Grant Health Asses. & Research $5,000

19-0749 REGS Technology CannaRegs Online Database $9,750.00

Department

Facilities

Recreation

Engineering

Engineering

Engineering

Department

Police

City Manager

City Clerk

Human Resources

Aviation

Human Resources

Fire Dept.

Community Econ. Dev.

Fire Dept.

Police

Aviation

Facilities Maintenance

Facilities Maintenance

City Manager

City Attorney

2

City Council Staff Report November 28 , 2018 --Page 3 Agreements and Purchase Orders, Month of October 2018

STAFF ANALYSIS:

The City's policies and procedures provide the City Manager and designated staff authority to enter into agreements and purchase orders which are $25,000 or less, and certain other amendments and change orders as previously approved by the City Council. Palm Springs Municipal Code §7.02.030(k) requires a monthly report be submitted to the City Council.

The original contract documents are on file in the Office of the City Clerk and purchase orders are on file in the Procurement Division.

3

City Council Regular Meeting 1.D. Meeting Date: 11/28/2018

SubjectAPPROVAL OF AMENDMENT NO. 7 TO THE PROFESSIONAL SERVICES AGREEMENTWITH CNS ENGINEERS, INC., IN THE AMOUNT OF $170,360.48 FOR THE RAMON ROADWIDENING (FROM SAN LUIS REY DR. TO LANDAU BLVD.) INCLUDING THEWHITEWATER RIVER BRIDGE WIDENING, FEDERAL-AID PROJECT NO. BHLS-5282 (040)CP 08-25:RECOMMENDATION:

Approve Amendment No. 7 to the Professional Services Agreement with CNS Engineers,Inc., a California corporation, to incorporate additional engineering design and right of wayservices in the amount of $170,360.48 for an increased total contract amount of$3,402,592.23 for the Ramon Road Widening (San Luis Rey Dr. to Landau Blvd.)including the Whitewater River Bridge Widening, Federal-Aid Project No. BHLS-5282(040) CP 08-25. A6190.

1.


Attachments1D Amend 7 to CNS Engineers Agr.

Citv Council Staff Report DATE: November 28, 2018 CONSENT CALENDAR

SUBJECT: APPROVAL OF AMENDMENT NO. 7 TO THE PROFESSIONAL SERVICES AGREEMENT WITH CNS ENGINEERS, INC., A CALIFORNIA CORPORATION (A6190) , IN THE AMOUNT OF $170,360.48 FOR THE RAMON ROAD WIDENING (FROM SAN LUIS REY DR. TO LANDAU BLVD.) INCLUDING THE WHITEWATER RIVER BRIDGE WIDENING, CITY PROJECT NO. 08-25, FEDERAL-AID PROJECT NO. BHLS-5282 (040)


BY: Engineering Services Department

SUMMARY

The requested action will approve Amendment No. 7 to the Professional Services Agreement with CNS Engineers, Inc., a California corporation, (Agreement No. 6190) in the amount of $170,360.48 for an increased total contract amount of $3,402,592.23 for the Ramon Road Widening (San Luis Rey Dr. to Landau Blvd.) including the Whitewater River Bridge Widening , City Project No. 08-25, Federal-Aid Project No. BHLS-5282 (040) , (the "Project").

RECOMMENDATION:

1) Approve Amendment No. 7 to the Professional Services Agreement with CNS Engineers, Inc. , a California corporation, (Agreement No. 6190), to incorporate additional engineering design and right of way services in the amount of $170,360.48 for an increased total contract amount of $3,402,592.23 for the Ramon Road Widening (San Luis Rey Dr. to Landau Blvd.) including the Whitewater River Bridge Widening , City Project No. 08-25, Federal-Aid Project No. BHLS-5282 (040); and

2) Authorize the City Manager to execute all necessary documents.

ITEM NO._;;;;..l_._D_._

City Council Staff Report November 28, 2018- Page 2 Amendment No.7, A6190, CP 08-25

BUSINESS PRINCIPAL DISCLOSURE:

CNS Engineers Inc., is a California Corporation whose corporate officers are Jong-Jiann Lu, as Chief Executive Officer and as Secretary and Hui-Min Huang as Chief Financial Officer. All owners whose interest is greater than $2,000 are listed.

BACKGROUND:

On January 30, 2008, the City of Palm Springs, the City of Cathedral City, and the Agua Caliente Band of Cahuilla Indians submitted a letter to CVAG requesting funding for a Project Study Report (PSR) to identify the project details and overall scope for the widening of Ramon Road to its full 6-lane width, extending from San Luis Rey Drive to Landau Boulevard, including widening of the existing bridge over the Whitewater River. This capital improvement project has been called the Ramon Road Widening (from San Luis Rey Dr. to Landau Blvd.) including the Whitewater River Bridge Widening, City Project No. 08-25, (the "Project"). A vicinity map of the project area is included as Attachment 1.

On May 9, 2009, following approval of funding from CVAG, City Council awarded a Professional Services Agreement ("PSA") to CNS Engineers, Inc., ("CNS"), to prepare a Project Study Report ("PSR") to identify the project details and overall scope for the Project. CNS subsequently completed the PSR resulting in a funding package requesting over $25 million in federal Highway Bridge Program ("HBP") funds for widening the Ramon Road Bridge and adjacent bridge approaches. The existing Ramon Road Bridge is eligible for funding under the HBP, which is administered by the state of California Department of Transportation ("Caltrans"). The HBP federal funds cover 88.53°/o of eligible project costs, requiring an 11.47%, local match.

On April 28, 2010, Caltrans representatives advised the City that the funding request was approved, and that the project would be programmed as part of the HBP in 2011. Total project costs and initial project schedule are identified in Table 1:

Table 1

Phase HBP CVAG Regional Palm Springs Cathedral City Totals

Federal Funding Measure A Local Measure A Fair Share Preliminary

$2,453,000 $686,250 $114,375 $114,375 $3,368,000 EnqineerinQ Riqht ofWav $1,030,000 $1,302,000 $188,356 $245,644 $2,766,000 Construction $21,753,000 $6,083,250 $880,044 $1,147,706 $29,864,000

Totals $25,236,000 $8,071,500 $1,182,775 $1,507,725 I $35,998,ooo I

Pursuant to a previous funding agreement with CVAG and Cathedral City, the local funding amounts were funded by CVAG with 75°/o Regional Measure A funds with the remaining 25°/o appropriately split between Palm Springs and Cathedral City. This

2

City Council Staff Report November 28, 2018 - Page 3 Amendment No.7, A6190, CP 08-25

reduces the City's responsibility of the $36 million total project cost to approximately $1.2 million, to be funded with Local Measure A funds.

On June 7, 2011, Caltrans authorized the City to proceed with the Project Approval and Environmental Document ("PAlED") Phase of the Project.

On January 18, 2012, the City Council awarded a new PSA to CNS (Agreement No. 6190) in the amount of $1,159,990.31 for the PAlED Phase of the Project. Subsequently, staff has coordinated with CNS on the preliminary engineering design and environmental analysis required for the Project, and has completed the PAlED Phase.

On May 7, 2014, the City Council reviewed and approved the environmental documents for the Project, completing the PAlED Phase.

On June 2, 2015, Caltrans authorized the City to proceed with the Final Design Phase of the Project.

On July 1, 2015, the City Council approved Amendment No. 3 to incorporate final design phase services in the amount of $1,502,353.05 for an increased total contract amount of $2,662,343.36.

On June 9, 2016, Caltrans authorized the City to proceed with the Right-of-Way acquisition Phase of the Project.

On September 21, 2016, the City Council approved Amendment No.4. to authorize the right-of-way acquisition phase services in the amount of $367,911.49 for an increased total contract amount of $3,030,254.85.

On June 7, 2017, the City Council approved Amendment No. 5 to authorize extra work to complete the design services in the amount of $84,616.73 for an increased total contract amount of $3,114,871.58.

On July 11, 2017, the City Council approved Amendment No. 6 to authorize extra work to complete the design and right-of-way services in the amount of $117,360.17 for an increased total contract amount of $3,232,231.75.

STAFF ANALYSIS:

CNS is actively coordinating the right-of-way phase of the Project, and as a result of ongoing negotiations with utility companies and various property owners on impacts caused by the Project, it is necessary to consider additional right-of-way phase and design phase services to complete further analysis of these impacts not anticipated as part of the original scope of the Project. CNS has provided the City with a proposal for this extra work to complete the Design and Right-of-Way services included as

3

City Council Staff Report November 28, 2018 - Page 4 Amendment No.7, A6190, CP 08-25

Attachment 2. Staff has reviewed the proposal and recommends approval of Amendment No. 7 in the amount of $170,360.48 to the PSA with CNS (Agreement No. 6190). A copy of the proposed amendment is included as Attachment 3


Section 21084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act ("CEQA"). In accordance with the CEQA Guidelines, the City acting as "Lead Agency" pursuant to CEQA, previously completed an environmental analysis of the potential impacts resulting from construction of the Project. On May 7, 2014, the City Council adopted Resolution No. 23544, adopting and ordering the filing of a Mitigated Negative Declaration for the Project. Subsequently, on May 14, 2014, staff filed a Notice of Determination with the Riverside County Clerk and State Clearinghouse.

The Project is funded, in part, by federal funds, requiring local oversight by Caltrans. As a federally funded project, the Project is subject to environmental review pursuant to the National Environmental Policy Act ("NEPA"). On June 9, 2014, Caltrans, acting as the lead agency pursuant to NEPA, made an environmental determination that the Project does not individually or cumulatively have a significant impact on the environment as defined by NEPA and is excluded from the requirements to prepare an Environmental Assessment ("EA") or Environmental Impact Statement ("EIS"), and that it qualifies for a Categorical Exclusion in accordance with 23 USC 327. Subsequently, on January 21, 2016, Caltrans completed a NEPA re-validation of the Project, confirming that the prior NEPA determination for the Project remains valid, and approved the City to proceed with the right-of-way acquisition phase.

FISCAL IMPACT:

On November 5, 2008, City Council approved an initial Reimbursement Agreement with CVAG (Agreement No. 5748) for the Project, to facilitate Regional Measure A funding for the PSR phase at a total cost of $100,000 funded with 75o/o Regional Measure A funds, and with 25% local match split between the cities of Palm Springs and Cathedral City. On November 3, 2010, the City Council adopted Amendment No. 1 to the CVAG Reimbursement Agreement to reflect the City's success in receiving over $25 Million in HBP funds programmed on the Project. The currently amended CVAG Reimbursement Agreement is funding over $8 Million (75°/o of the $10,762,000 not funded by the HBP grant), with the 25%> local share to be further divided between Palm Springs and Cathedral City based on the cost of construction located in each City's jurisdiction.

Staff has previously coordinated receipt of $1,200,732 of federal HBP funds for the Project, which has been used to fund the PAlED Phase of the Project. After approval of the environmental document, staff also requested and received approval from Caltrans for an additional $1,252,434 of HBP funds to proceed with the final design phase of the Project. In June 2016, staff requested and received approval from Caltrans for an

4

City Council Staff Report November 28, 2018- Page 5 Amendment No. 7, A6190, CP 08-25

additional $1,030,489 of HBP funds to proceed with the right-of-way acquisition phase of the Project.

Amendment No. 7 includes cost adjustments to the tasks summarized in Table 2.

Table 2 Current

Proposed Task Contract Amount

Amendment

Phase I Project Approval and Environmental Document (PA&ED) Task 2.19, Value Analysis Study

$19,861.67 (Replaced by Task 2.7 in PS&E) Reimbursable Expenses $35,858.00

Phase II Plans, Specifications and Estimate (PS&E) Task 1.1, Project Administration

$115,944.39 and Project Controls Task 1.2, Meetings and

$113,042.37 Coordination Task 2.4, Utility Relocation

$81,994.09 Coordination Task 2.7, Value Analysis Study

$0.00 (New Task) Task 3.13, Final 1 00°/o Design

$226,951.10 PS&E & Contract Bid Documents Reimbursable Expenses $45,538.00

Phase Ill Right of Way Task 1.1, Legal Descriptions and

$85,172.75 Plats Task 1.2, Right-of-Way Appraisal,

$258,230.46 Acquisition and Certification Subtotal

Current Contract Amount: Phase I - PA&ED: Phase II - PS&E: Phase Ill - R/\N: Total:

$11159,990.31 $1,728,838.24

$343,403.20 $3,232,231.75

Proposed Amendment No.7: Phase I - PA&ED: $(27,569.67) Phase II - PS&E: $115,858.75 Phase Ill- R/\N: $82,071.39 Total: $170,360.48

$(19,861.67)

$(7, 708. 00)

$5,878.10

$8,131.82

$10,020.96

$77,679.26

$9,093.11

$5,055.50

$8,236.80

$73,834.59

$170,360.48

Amended Contract Amount

$0.00

$28,150.00

$121,822.49

$121,174.19

$92,015.05

$77,679.26

$236,044.21

$50,593.50

$93,409.55

$332,065.05

5

City Council Staff Report November 28, 2018- Page 6 Amendment No. 7, A6190, CP 08-25

Amended Contract Amount: Phasel -PA&ED: $1 ,132,420.64 Phase II - PS&E: $1 ,844,696.99 Phase Ill- R!W: $425,474.60 Total: $3,402,592.23

Sufficient funding is available to approve Amendment No. 7 in the amount of $170,360.48 to the PSA with CNS from the following accounts:

• Capital Project Fund, Account No. 261-4491-50245; • Regional Measure A Fund, Account No. 134-4497-50245; • Capital Project Fund, Account No. 261-4491 -50304; • Local Measure A Fund, Account No. 134-4498-50245;

SUBMITIED

/ ' l~ MarctJSLFUIIer, MPA, P.E., P.L.S. Assistant City Manager/City Engineer

ATIACHMENTS: 1. Vicinity Map 2. CNS Proposal for Amendment No.7 3. Amendment No. 7

David H. Ready, Es ., City Manager

$124,073.52 $34,702.43 $5,792.26 $5,792.26

6

ATTACHMENT 1

7

Department of Public Works and Engineering Vicinity Map

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INDIAN SPRINGS RD

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8

ATTACHMENT 2

9

Civil and Stmctural Engineers

CNS Engineers, Inc. 11870 Pierce Street, Suite 265, Riverside, CA 92505 Phone: (951) 687-1005 I Fax: (951) 667-3387 I Web: www.cnseng.com

Mr. Marcus Fuller, PE, PLS Assistant City Manager/City Engineer City of Palm Springs Engineering Services Department 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262

Subject: Request for Contract Amendment No. 7

November 6, 2018

Ramon Road Widening from San Luis Rey Drive to Landau Boulevard including the Whitewater River Bridge Widening City Project No. 08-25 Federal Aid Project No. BHLS 5282-(040)

Dear Marcus:

CNS Team requests budget adjustment and additional compensation to reflect extra work as follows:

1. Goodwill Appraisals

The proposed street improvements of the Project require temporary construction easements or impacts on various properties. Two property owners (Chevron Gas Station and Warrior Golf Course) have claimed loss of business during construction, while other three property owners including Villa Bakery, U-Hall Moving and Storage, and Palm Springs Lanes may also cla im the same.

This proposed task is to prepare goodwill appraisals when the businesses express their concern for loss of business. The goodwill appraisals will support the right-of-way acquisition negotiation with the property owners.

2. Additional Right-of-Way Negotiation

It is one of the Design Team's highest priorities to negotiate a fair, mutually agreeable settlement between the City and the property owner. The minimum requirement for negotiation per Caltrans is 30-days and 3 contact attempts. The Team presented first written offers 5-6 months ago and have between 19-53 contact attempts with each remaining owner. At th is time, the Design Team has not reached an agreement with seven private property owners, one DWA parcel and three BIA parcels. Epic recommended that the City proceed with filing the Resolution of Necessity to protect the project's schedule. The Design Team will provide the impasse letter for the parcels where eminent domain is needed and provide case files to the City for court procedures.

10

Mr. Marcus Fuller, PE, PLS Page 2 of 6 November 6, 2018

3. Additional SCE Coordination

During the design development, an additional SCE telecommunication facility was discovered. SCE advised the Design Team that the facility did not belong to them. so the team performed the necessary research to determine ownership. After several follow up attempts to multiple telecommunication companies, it was finally determined SCE was the owner. The Design Team then performed the rights check to determine liability. Also, the Design Team worked closely with SCE on an additional transmission pole (at the northwest corner of the Ramon Road and Landau Blvd. intersection) that they thought would be in conflict due to the relocation of the pole on Landau south of Ramon Road. SCE went back and forth trying to determine if the pole would be in conflict or not. The Design Team was in close communication with them throughout the review process.

4. Litigation Guarantees

At this time, there are seven private property owners that the Design Team has not reached an agreement with. If the City moves ahead with the condemnation process, Litigation Guarantees will need to be ordered from the Title Company. The price of the Litigation Guarantee is dependent on the offer of just compensation.

5. Modify the Right-of-Way Legal Descriptions and Plats for the impacted Tribal Properties by Allottee

As shown in the partial ACBCI Land Status Map below, the proposed Project impacts three parcels (APNs 680-170-051, 680-170-014, and 680-170-053) south of Ramon Road between Crossley Road and Landau Blvd. in City of Palm Springs. Allottee 98C covers portion of APN 680-170-051 and the entire APN 680-170-014 (a small triangular parcel at the southwest corner of the bridge). Allottee 104C covers portion of APN 680-170-051 and portion of APN 680-170-053. Allottee 65E covers the majority of APN 680-170-053. Current Legal Descriptions and Plats for all easements were based on the APN.

Based on the meeting with BIA on 5/7/2018 and per the new BIA standards, the right-of-way acquisition offers along with the legal descriptions and plats for the street and channel improvement easements shall be separated by Allottee rather than APN.

This task is to modify current 11 legal descriptions and plats and split them by allottee as follows:

(Allottee 98C) • Right of Way- Extend the take to cover all of 98C by adding the portion in

APN 680-170-014.

11

Mr. Marcus Fuller, PE, PLS

Page 4 of 6

November 6, 2018

• Slope Easement- Extend the slope to cover all of 98C by adding the portion in APN 680-170-014.

• TCE- Add the portion shown in APN 680-170-014 to cover all of 98C.

(Allottee 1 04C) • Right of Way - Remove the portion that falls on 65E. • Channel Structure Easement - Remove the portion that falls on 65E. • TCE - Remove portion that falls on 65E. • Slope Easement- Create a new legal and exhibit for Allottee 1 04C by taking

a portion from APN 680-170-053.

(Allottee 65E) • Right of Way- Remove the portion that falls on 1 04C. • Slope Easement- Remove the portion that falls on 1 04C. • Channel Structure Easement- Remove the portion that falls on 1 04C. • TCE - Remove the portion that falls on 1 04C.

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The Preliminary Engineering and Environmental Documentation (PA&ED) Phase of the Project was authorized to proceed by the City Council on 1/18/2012. The project cost was estimated at approximately $36 million at that time. Since a Value Analysis (VA) Study for a federally funded bridge project is required by Caltrans when the project cost exceeds $20 million, a task of conducting a VA Study with a cost of $62,921.12 and a reimbursable expense of $7,708.00 was budgeted. The VA Study is aimed to ensuring the most cost-effective and feasible engineering alternative is implemented on the project.

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On July 6, 2012, MAP-21, the Moving Ahead for Progress in the 21st Century Act, was signed into law by President Obama. Under the new Federal Transportation Bill, MAP-21, the threshold of requiring a VA Study for a bridge project was increased from $20 to $40 million. The updated FHWA preconstruction provision guidelines also eliminate the VA Study for projects that are not on the National Highway System (NHS). The proposed Ramon Road Project, classified as a 6-lane Divided Major Thoroughfare in Palm Springs General Plan, is on the NHS.

Since the original cost estimate of $36 million is well below the threshold of $40 million requiring a VA Study, it was decided to eliminate the VA Study task and the budget was shifted to other extra work by various contract amendments.

Due to the strong economy and the refinement of the engineering design and right-of-way easements, the estimated project cost has been increased to approximately $39 million, which is close to the threshold of $40 million requiring a VA Study.

7. Redesign of the North Side (Westbound) of Ramon Road Grade East of Landau Blvd.

During the development of the geometric approval drawings (GAD's) in the PA&ED Phase, the meeting minutes dated 9/05/2013, under the topic of Roadway Design states that "the road transition east of Landau shall be minimized to preserve the new improvements that have been recently completed (action for final design)." In the final GAD's, preserving the referenced new improvements consisted of extending the cross fall of the street and protect the street finished surface to the greatest extent possible. The consequence of "preserving the new improvements" was the creation of the low point requiring the installation of a dry well at the east end of the improvements where the widened roadway transitions to the existing street width.

On the north side of Ramon Road east of Landau Boulevard positive curb drainage can be achieved, eliminating the dry well, if the north half of the roadway is reconstructed to a higher grade. Revising the 95%, complete plans to achieve positive drainage consists of reconstructing the north side of Ramon Road from Landau Boulevard to approximately 500 feet east. Work consists of a redesign of the top of curb profile, possible adjustments to the median curb profiles, revisions to the plan view to include pavement reconstruction, revisions to the Chevron driveway reconstruction detail, updates to the Typical Section, and revisions to the Cross Sections drawings and to the quantities.

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We request budget adjustment among tasks as shown in the following table:

Task Current Contract Proposed Amended

Amount Amendment Contract Amount

Phase I Project Approval and Environmental Document (PA&ED)

Task 2.19, Value Analysis Study $19,861 .67 $(19,861.67) $0.00 (Replaced by Task 2.7 in PS&E)

Reimbursable Expenses $35,858.00 $(7,708.00) $28,150.00

Phase II Final Design Plans, Specifications and Estimate (PS&E)

Task 1.1, Project Administration and $115,944.39 $5,878.10 $121 ,822.49

Project Controls

Task 1.2, Meetings and Coordination $113,042.37 $8,131 .82 $121 ,174.19

Task 2.4, Utility Relocation Coordination $81 ,994.09 $10,020.96 $92,015.05

Task 2.7, Value Analysis Study (New Task to replace Task 2.19 in $0.00 $77,679.26 $77,679.26 PA&EO) Task 3.13, Final 100% Design PS&E &

$226,951.10 $9,093.11 $236,044.21 Contract Bid Documents

Reimbursable Expenses $45,538.00 $5 ,055.50 $50,593.50

Phase Ill Right-of-Way

Task 1.1, Legal Descriptions and Plats $85,172.75 $8,236.80 $93,409.55

Task 1.2, Right-of-Way Appraisal, $258,230.46 $73,834.59 $332,065.05

Acquisition and Certification

Subtotal $170,360.48

Current Contract Amount (includes previous approved amendments): Phase! -PA&ED: $1 ,159,990.31 Phase II - PS&E: $1 ,728,838.24 Phase Ill- R/W: $343,403.20 Total: $3,232,231 .75

Proposed Amendment No.7 (this request) : Phase I - PA&ED: $(27,569.67) Phase II - PS&E: $115,858.75 Phase Ill- R/W: $82.071 .39 Total : $170,360.48

Amended Contract Amount: Phase I - PA&ED: $1 ,132,420.64 Phase II - PS&E: $1 ,844,696.99 Phase Ill- R/W: $425,474.60 Total: $3,402,592.23

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We look forward to approval of this cost proposal and continue to deliver the final design and right of way phases of the project. Should you have any questions about this proposal, please feel free to contact me at (951) 687-1 005 ext.1 04 or by e-mail at james.lu@cnseng. com.

Sincerely,

James Lu, P.E., S.E. Project Manager I Principal CNS Engineers, Inc.

Attachments: 1. Cost Proposal Work Sheets 2. Scope of Work with extra work shown in blue

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ATTACHMENT 3

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AMENDMENT NO. 7 TO AGREEMENT NO. 6190

RAMON ROAD WIDENING- SAN LUIS REV DR. TO LANDAU BLVD. INCLUDING WHITEWATER RIVER BRIDGE WIDENING

CITY PROJECT NO. 08-25, FEDERAL-AID PROJECT NO. BHLS 5282 (040)

THIS SEVENTH AMENDMENT TO Agreement No. 6190 for professional engineering and consulting services, (herein "Amendment") made and entered into on the __ day of , 2018, by and between the CITY OF PALM SPRINGS, a California charter City and municipal corporation, (herein "City") and CNS Engineers, Inc., (herein "Consultant") is hereby amended as follows:

RECITALS

A City and Consultant entered into that certain Contract Services Agreement No. 6190 to provide professional engineering and consulting services related to the Ramon Road Widening - San Luis Dr. to Landau Blvd . including Whitewater River Bridge Widening, City Project No. 08-25, Federal-Aid Project No. BHLS 5282 (040) , (the "Project"), in the City of Palm Springs, (the "Agreement"), initially approved by the City Council on January 18, 2012.

B. The Agreement is subject to certain contract requirements identified in the Caltrans Local Assistance Procedures Manual (LAPM).

C. The Consultant requested approval for increasing the costs of certain tasks and lowering the costs of certain tasks as shown in Exhibit "C" for a net change of one hundred seventy thousand three hundred sixty dollars and forty eight cents to the contract amount. Tasks to be increased and lowered are shown in attached Exhibit ucu

D. The parties wish to amend the Agreement for the seventh time to: (1) adjust the costs of specific tasks for a net change of one hundred seventy thousand three hundred sixty dollars and forty eight cents to the contract amount, and revise Exhibit "D" accordingly; and (2) to incorporate current Caltrans LAPM requirements for professional design service agreements.

AGREEMENT

SECTION 1. The foregoing Recitals are true, correct, and incorporated by this reference herein as material terms relied upon by the Parties in agreeing to and executing this Amendment No. 7.

SECTION 2. Section 1.9, Unauthorized Aliens, is hereby added to read:

1.9 Unauthorized Aliens. Consultant hereby represents and warrants that it will comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§1101 , et seq. , as amended, and in connection therewith, shall not employ

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unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of any work and/or services under this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to reimburse City for any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, or penalties which arise out of or are related to such employment, together with any and all costs, including attorneys' fees, incurred by City.

SECTION 3. Section 2.4, Appropriations, is hereby added to read:

2.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated therefore by the Palm Springs City Council for each fiscal year covered by the Agreement. If such appropriations are not made, the City Manager may terminate this Agreement as provided in Section 8.3 of this Agreement; otherwise, there shall be no funding for any work or services and Consultant shall not be entitled to payment for any work or services that Consultant may provide. Consultant further acknowledges the following:

A. It is mutually understood between the parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the contract were executed after that determination was made.

B. This Agreement is valid and enforceable only, if sufficient funds are made available to the City for the purpose of this Agreement. In addition , this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City Council that may affect the provisions, terms, or funding of this Agreement in any manner.

C. It is mutually agreed that if sufficient funds are not appropriated , this Agreement may be amended to reflect any reduction in funds.

D. The City has the option to void the Agreement under the 30-day termination clause pursuant to as provided in Section 8.3 of this Agreement, or by mutual agreement to amend the Agreement to reflect any reduction of funds.

SECTION 4. Section 2.8, Retention of Funds, is hereby added to read :

2.8 Retention of Funds.

A. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section.

B. No retainage will be held by the City from progress payments due the Consultant. Any retainage held by the Consultant or subconsultants from progress payments due subconsultants shall be promptly paid in full to subconsultants within 30 days after the subconsultant's work is satisfactorily completed . Federal law (49 CFR

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26.29) requires that any delay or postponement of payment over the 30 days may take place only for good cause and with the City's prior written approval. Any violation of this provision shall subject the violating Consultant or subconsultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant, deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE Consultant and subconsultants.

SECTION 5. Section 6.3, Claims Filed by City's Construction Contractor, is hereby added to read:

6.3 Claims Filed by City's Construction Contractor.

A. If claims are filed by the City's construction contractor re lating to work performed by Consultant's personnel, and additional information or assistance from Consultant's personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with the City's construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.

B. Consultant's personnel that the City considers essential to assist in defending against construction contractor claims will be made avai lable on reasonable notice from the City. To the extent the claim is due to any negligent act, error, omission of willful misconduct of Consultant, Consultant shall be responsible for all costs associated with consultation or testimony, including travel costs, associated with defense of the City's construction contractor claims. Otherwise, City shall pay Consultant for assistance provided under this section at Consultant's standard hourly rates.

C. Services of Consultant's personnel in connection with the City's construction contractor claims will be performed pursuant to a written amendment to this Agreement, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.

SECTION 6. Section 7, Reports and Records, is hereby deleted and replaced in its entirety to read:

7.1 Consultant's Reports or Meetings.

A. Consultant shall submit progress reports at least once a month. The report should be sufficiently detailed for the Contract Officer to determine, if Consultant is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.

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B. Consultant's Project Manager shall meet with the City's Contract Officer, as needed, to discuss progress on the Project.

C. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of the Work and Services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts , circumstances, techniques, or events that may or will materially increase or decrease the cost of the Work or Services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of such fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.

7.2 Accounting Records. Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. 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.

7.3 Ownership of Documents . All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subconsultants, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and the City shall indemnify the Consultant for all damages resulting therefrom. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. Consultant shall ensure that all its subconsultants shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.

Consultant further acknowledges the following:

A Upon completion of all work under this Agreement, ownership and title to all reports , documents, plans, specifications, and estimates produce as part of this Agreement will automatically be vested in the City; and no further agreement will be necessary

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to transfer ownership to the City. Consultant shall furnish the City all necessary copies of data needed to complete the review and approval process.

B. It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or machine-readable form, are intended for one-time use in the construction of the project for which this Agreement has been entered into.

C. Consultant is not liable for claims, liabilities, or losses arising out of, or connected with the modification, or misuse by the City of the machine-readable information and data provided by Consultant under this Agreement; further, Consultant is not liable for claims, liabilities, or losses arising out of, or connected with any use by the City of the project documentation on other projects for additions to th is project, or for the completion of th is project by others , except only such use as many be authorized in writing by Consultant.

D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under Government Contracts for federal -aid contracts).

E. The City may permit copyrighting reports or other agreement products. If copyrights are permitted; the agreement shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish , or otherwise use; and to authorize others to use, the work for government purposes.

7.4 Release of Documents. All drawings, specifications, reports , records, documents, and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gained by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization.

Consultant further acknowledges the following:

A. All financial , statistical, personal, technical , or other data and information relative to the City's operations, which are designated confidential by the City and made available to Consultant in order to carry out this Agreement, shall be protected by Consultant from unauthorized use and disclosure.

B. Permission to disclose information on one occasion, or public hearing held by the City relating to the contract, shall not authorize Consultant to further disclose such information, or disseminate the same on any other occasion.

C. Consultant shall not comment publicly to the press or any other media regarding the Agreement or the City's actions on the same, except to the City's staff, Consultant's own personnel involved in the performance of this Agreement, at public hearings or in response to questions from a Legislative committee.

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D. Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by the City, and receipt of the City's written permission.

E. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section.

F. All information related to the construction estimate is confidential , and shall not be disclosed by Consultant to any entity other than the City.

7.5 Audit and Inspection of Records.

A For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21 , California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of the contract, including but not limited to, the costs of administering the Agreement. All parties shall make such materials available at their respective offices at all reasonable times during the contract period and for three years from the date of final payment under the contract. The state, State Auditor, City, FHWA, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of Consultant and it's certified public accountants (CPA) work papers that are pertinent to the Agreement and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested.

B. Consultant and any subconsultant shall permit the City, the state, and the FHWA if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis.

7.6 Audit Review Procedures.

A Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by City's Chief Financial Officer.

B. Not later than 30 days after issuance of the final audit report, Consultant may request a review by City's Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing .

C. Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this contract.

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D. Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant's responsibility to ensure federal , state, or local government officials are allowed full access to the CPA's work papers including making copies as necessary. The Agreement, cost proposal, and ICR shall be adjusted by Consultant and approved by City contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal , state or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.

SECTION 7. Section 8.9, Disputes, is hereby added to read:

8.9 Disputes.

A Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City's Contract Officer and Director of Engineering Services/City Engineer, who may consider written or verbal information submitted by Consultant.

B. Not later than 30 days after completion of all work under the Agreement, Consultant may request review by the City Council of unresolved cla ims or disputes, other than audit. The request for review will be submitted in writing.

C. Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement.

SECTION 8. Section 9.2, Conflict of Interest, is hereby deleted and replaced in its entirety to read :

9.2 Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. Further, Consultant acknowledges the following:

A Consultant shall disclose any financial , business, or other relationship with the City that may have an impact upon the outcome of this Agreement, or any ensuing City construction project. Consultant shall also list current clients who may have a

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financial interest in the outcome of this Agreement, or any ensuing City construction project, which will follow.

B. Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.

C. Consultant hereby certifies that neither Consultant, nor any firm affiliated with Consultant will bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this Agreement. An affiliated firm is one, which is subject to the control of the same persons through joint-ownership, or otherwise.

Except for subconsultants whose services are limited to providing surveying or materials testing information, no subconsultant who has provided design services in connection with this Agreement shall be eligible to bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this Agreement.

SECTION 9. Section 9.3, Covenant Against Discrimination, is hereby deleted and replaced in its entirety to read:

9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin {i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training , including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting .

Consultant further acknowledges the following requirements:

A. Consultant's signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 81 03.

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B. During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed , national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g ., cancer) , age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f) , set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.

C. The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation - Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall , on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.

D. The Consultant, with regard to the work performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21 .5 of the U.S. DOT's Regulations, including employment practices when the Agreement covers a program whose goal is employment.

SECTION 10. Section 1 0.9, State Prevailing Wage Rates, is hereby added to read:

10.9 State Prevailing Wage Rates.

A. Consultant shall comply with the State of California's General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the work.

B. Any subcontract entered into as a result of this contract, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair,

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or maintenance of public works, shall contain all of the provisions of this Article, unless the awarding agency has an approved labor compliance program by the Director of Industrial Relations.

C. When prevailing wages apply to the services described in the scope of work, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov.

SECTION 11 . Section 1 0.13, Safety, is hereby added to read:

10.13 Safety.

A Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by City Safety Officer and other City representatives. Consultant personnel shall wear hard hats and safety vests at all times while working on the construction project site.

B. Pursuant to the authority contained in Section 591 of the Vehicle Code, the City has determined that such areas are within the limits of the project and are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11 , 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.

C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Section.

D. Consultant must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in California Labor Code Sections 6500 and 6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five feet or deeper.

SECTION 12. Exhibit "C", Schedule of Compensation, is hereby deleted and replaced with the revised Exhibit "C" included as Attachment 1 to this Amendment No. 7.

SECTION 13. Full Force and Effect. All terms, conditions, and provisions of the Professional Services Agreement (A6190), unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 7 and any provisions of the Professional Services Agreement (A6190), the provisions of this Amendment No. 7 shall in all respects govern and control.

SECTION 14. Corporate Authority. The persons executing this Amendment No. 7 on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 7 on

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behalf of said party, (iii) by so executing this Amendment No. 7, such party is formally bound to the provisions of this Amendment No. 7, and (iv) the entering into this Amendment No. 7 does not violate any provision of any other agreement to which said party is bound.

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.

Date: ________ __ _

APPROVED AS TO FORM:

By: ___________ _

Edward Z. Kotkin , City Attorney

RECOMMENDED:

"CITY" City of Palm Springs

By: ____________ __

David H. Ready, PhD City Manager

ATTEST

By: ____________ ___

Anthony Mejia, City Clerk

By ___________ _ _

Marcus L. Fuller, MPA, P.E., P.L.S. Assistant City Manager/City Engineer

APPROVED BY CITY COUNCIL:

Date: Agreement No. __

Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.

CONSULTANT NAME: CNS Engineers. Inc.

----------- _ __ Check one_ Individual _Partnership_ Corporation

Address

By By ___________ __

Signature (Notarized) Signature (Notarized) 12 Revised: 1/31/18

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720669.1

CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1100

A IIO'.sry public or other olfica-~ng 1M: cer1iic:ll& verifiaa aUf the idemi:ry of the indiYic11ai v.t1o sigled the document to which this certif1C318 i:llll!llehed. snd not the tMhfull'l933. acaJrOcy, a validity of 1t131 doaJment.

state of California County of __________ _

On __________ befora me. ____________________ _

Dst&

pernonally appeared ------------------- -----Nsm9(s} of Signsr(3)

who proved to me oo the bacia of satisfactory evidence to be the pemoo(s} whooe name(a) ia/are =b=ribed to the within instrument 3lld acknowledged to me that helahel\h9¥ executed the same in hC/her/their authorized capscityf188), 3lld th:rt by hi&lherllheir aignnhJre(:1) on the instrument the person{ a), or the entity upon behalf of which the pernon(a) acted. executed the inatrumeot.

I certify under PENAL 1Y OF PERJURY under the lswa of the state of California that the foregoing ~ph is true and OOfTIICt.

WTTNESS my hand and official ooal.

~gNrtum __________________________ _

Signsturo of Nolsiy Public

Place Notary SooJ Above

-----------------------------oPTIONAL-----------------------------Though this ooclion is opHonaJ, completing this informstion can del9r a/teml:ion of the document or

frtwciJient resttDchment of this fonn lo sn unintendad docutn9nt.

Oescrip ti<>n of Attached Document

Trtle or Type of Doct.ment Document Date: --------NLmber of Pagee.: ___ Sjgner{s) Other Than Named Above: --------------------

Copocity(iee) Oaimed by Signer(a)

~gner'a N3me: ------------0 Corporate Officer - Tltle(3): ------------0 Partner - 0 Limited 0 General 0 Individual 0 Attorney in Fact 0 TrustBB 0 Guardian or Con3ervator Ootner: ___________ _

Signer Ia Repreaenting: ---------

~gneraNome: __________ _ _

0 Corporate Officer - Titie(a): -----------0 Partn9r - 0 Limited 0 Genernl 0 Individual 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator

0 Other: --- ----------Signer 13 Representing: ---------

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152014 National Nolary At!socistion • www.NationalNotary.org • 1.aoG-US NOTARY (1 -800-8711-6827) Item tS907

13 Revised: 1/31/18

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720669.1

Exhibits A, C FOLLOWS THIS PAGE

14 Revised: 1131/18

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EXHIBIT "A" SCOPE OF WORK

General Scope of Work- Consultant shall provide the City with final design, right-ofway services related to the Ramon Road Widening (San Luis Rey Drive to Landau Boulevard, including the Whitewater River Bridge Widening), (City Project #08-25), Federal Aid Project No. BHLS 5282(040) (hereinafter the "Project"). The intent of this project is to widen Ramon Road to its 6-lane divided arterial roadway cross-section, including widening of the existing Ramon Road Bridge (State Bridge No. 56C-0287) and additional turning lanes at two key intersections. The preparation of the contract and right of way documents shall comply with applicable local, state and federal regulations, policies, procedures, manuals and standards necessary to obtain project approvals from various regulatory agencies.

Technical Scope of Work

Phase II - Final Civil Engineering Design (Plans, Specifications and Estimates -PS&E)

Task 1: Project Management

Task 1.1 Project Administration and Project Controls (Original Contract Scope) Consultant' project administration shall be conducted to ensure timely progress reporting and billing, accurate project record keeping, monitoring of costs, progress, deliverables and adherence to quality standards. Internal project coordination meetings shall be conducted monthly through office meetings, conference calls and exchange of emails, to maintain good project communication.

Schedule Control: During the project development, Consultant shall ensure that the schedule adheres to all contractual requirements. The schedule will be constantly updated. Consultant shall work closely with the City for the delivery requirements.

Document Control: All in-coming and out-going design and correspondence materials shall be logged, and filed according to a project-specific document control system.

Accounting and Invoicing Procedures: Consultant shall follow general City and Caltrans accounting and billing requirements. All man-hours, direct and indirect costs shall be tracked.

Cost Control: Project costs shall be verified on a monthly basis. Cost-to-date, estimated actual percent completed, and estimated budget to complete by individual task at each invoicing period will be documented.

(Extra Work for previous approved Amendment No. 4)

Exhibit "A" Page 1 of 29

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Consultant shall provide project administration related to securing a Right of Entry (ROE) to access the Agua Caliente Indian Tribal Lands through Bureau of Indian Affairs (BIA) in support of geotechnical exploratory borings in the Whitewater River; conducting inspection of emergency bridge expansion joint repair; and obtaining relevant right of way documents in support of relocation of the impacted utility poles own by SCE. The consultant's effort shall include setting contractual supports and scheduling with subconsultants who will be involved in the described extra work.

(Extra work for previous approved Amendment No. 5) Consultant shall provide project administration related to Water Percolation Testing to support design setting of a Dry Well , incorporation of CV-Link Trail Design, and Pavement Reconstruction between Crossley Road and Landau Boulevard. The consultant's effort shall include setting contractual supports and scheduling with subconsultants who will be involved in the described extra work.

(Extra work for previous approved Amendment No. 6) Consultant shall provide project administration related to: conducting additional utility relocation coordination with Southern California Edison (SCE) for the relocation of the transmission pole; adding a new retaining wall and landscaping beside the Cimarron Cove .HOA property along the back of the sidewalk on the north side of Ramon Road east of the Whitewater River to avoid impacts to the private property; updating the channel improvement plans per the new CVWD's adopted Ordinance No. 1234.2; adding a Dry Well Siphon Underdrain across Ramon Road involving additional utility pothol ing; establishing an inventory of existing landscape irrigation conditions at twelve properties affected by the project improvements; updating Bridge Hydraulics and Study to accommodate Golf Course modifications and the CV-Link trail in the channel ; providing various technical assistance necessary in completing the right of way offer packages; and performing additional right of way appraisal service to address design refinements involving reducing TCE's and slope easements and addressing impacts of reconstruction of Hole #5 to the Golf Course, ownership of the Billboard property, and to transfer deeds of 19 parcels from City of Palm Springs to the City of Cathedral City. The consultant's effort shall include setting contractual supports and scheduling with subconsultants who will be involved in the described extra work.

(Extra work for Amendment No. 7) Consultant shall provide project administration related to: preparation of goodwill appraisals, conducting additional right-of-way negotiation with seven property owners who have not accepted the agreements, performing coordination with SCE for the relocation of the impacted telecommunication overhead line, ordering litigation guarantees, modifying right-of-way legal descriptions and plats for the impacted Tribal properties by Allottee, performing Value Analysis Study, redesign of north side of Ramon Road east of Landau Boulevard. The consultant's effort shall include setting contractual supports and scheduling with sub-consultants who will be involved in the described extra work.

Oeliverables: monthly invoices, progress reports, schedule updates and document logs


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Task 1.2 Meetings and Coordination (Original Contract Scope) This task shall include general management and coordination among the City, Consultant Team, Caltrans, jurisdictional agencies, and other key stakeholders. Project meetings shall be conducted to maintain good project communication in purposeful and concise meetings. Project coordination shall be established by frequent progress review meetings or conference calls. Project Development Team (PDT) meetings in the City Hall or by conference calls shall be conducted.

A meeting agenda shall be prepared in advance. All action items listed in the meeting minutes shall be reviewed in every meeting. Other typical procedures including preparing monthly progress reports; establishing design criteria; posting project issues to all individuals; conducting biweekly progress review for all engineering plans and reports; mitigating all independent check and review comments; clearing communication lines to maintain the project schedule. Project Manager and appropriate key task leaders or engineers shall attend the meetings.

(Extra work for the previous approved Amendment No.4) Consultant shall provide project coordination related to securing a Right of Entry (ROE) to access the Agua Caliente Indian Tribal Lands through Bureau of Indian Affairs (BIA) in support of geotechnical exploratory borings in the Whitewater River; conducting inspection of emergency bridge expansion joint repair; and obtaining relevant right of way documents in support of relocation of impacted utility poles own by SCE. The consultant's effort shall include coordinating with sub-consultants, the bridge contractor and permitting agencies who will be involved in the described extra work; reviewing the preliminary title reports and plotting recorded easements on the BIA parcels; clarifying BIA's questions and researching records to determine whether the existing bridge is on the public easement; preparing exhibits and attending various meetings with BIA to discuss the existing easements and the ROE requirements; drafting letters to landowners requested by BIA; coordinating with BIA and the Tribe to arrange cultural monitoring, cooperative agreement between the City and the Tribe, surety bond and rental fees; coordinating drilling schedule with several parties involving tribal cultural monitor, the drilling contractor, the design team, CVWD and RCFC&WCD.

(Extra work for previous approved Amendment No. 6) Consultant shall provide project coordination related to: conducting additional utility relocation coordination with Southern California Edison (SCE) for the relocation of the transmission pole; adding a new retaining wall and landscaping beside the Cimarron Cove HOA property along the back of the sidewalk on the north side of Ramon Road east of the Whitewater River to avoid impacts to the private property; updating the channel improvement plans per the new CVWD's adopted Ordinance No. 1234.2; adding a Dry Well Siphon Underdrain across Ramon Road involving additional utility potholing; establishing an inventory of existing landscape irrigation conditions at twelve properties affected by the project improvements; updating Bridge Hydraulics and Study to accommodate Golf Course modifications and the CV-Link trail in the channel;


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providing various technica l assistance necessary in completing the right of way offer packages; and performing additional right of way appraisal service to address design refinements involving reducing TCE's and slope easements and addressing impacts of reconstruction of Hole #5 to the Golf Course, ownership of the Billboard property, and to transfer deeds of 19 parcels from City of Palm Springs to the City of Cathedral City.

(Extra work for Amendment No. 7) Consultant shall provide project coordination related to: preparation of goodwill appraisals, conducting additional right-of-way negotiation with seven property owners who have not accepted the agreements, performing coordination with SCE for the relocation of the impacted telecommunication overhead line, ordering litigation guarantees, modifying right-of-way legal descriptions and plats for the impacted Tribal properties by Allottee, performing Value Analysis Study, redesign of north side of Ramon Road east of Landau Boulevard. The consultant's effort shall include setting contractual supports and scheduling with sub-consultants who will be involved in the described extra work.

Deliverables: meeting agendas, meeting minutes, and coordination memorandums

Task 1.3 Quality Assurance and Quality Control (Original Contract Scope) Consultant shall provide Quality Control and Quality Assurance (QC/QA) for all project documents and plans to ensure that the project moves forward to delivery as quickly as possible. Upon notice to proceed, the QC/QA procedures shall be clearly outlined for the project team. These procedures shall include checklists for plan preparation, e-file sharing procedures and document controls, and independent reviews by senior staff. Consultant shall review the design documents to make sure that the design is consistent with the funding requirements so that the review and approval process is expedited. Consultant shall make sure all right-of-way acquisitions, easements, and utility relocation for the project are reasonable and cost-efficient.

Deliverables: Quality Control and Quality Assurance Plan

Task 1.4 Local Assistance Support (Original Contract Scope) Consultant shall assist the City in preparing Requests for Authorization (RFA) to proceed with Right-of-Way Acquisition , Utility Relocation, and Construction in accordance with Caltrans Local Assistance Procedure manual. Consultant shal l provide technical supports and attend up to two (2) meetings with the City and Caltrans District 8 Local Assistance as required to discuss the funding authorization matters.

Deliverables: requests for authorization to proceed with right-of-way acquisition, utility relocation and construction

Task 2: Final Design Reports and Studies


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Task 2.1 Utility Potholing (Original Contract Scope) Consultant shall coordinate potholing for up to 25 potholes for the existing utilities at critical locations. Consultant shall coordinate with the respective utility owners for the potholing work. Consultant shall coordinate the use of field survey crews to locate potholed utilities by coordinates and elevations based on the project's survey controls.

Deliverable: a report upon completion including elevations for use by the project surveyor

Task 2.2 Geotechnical Investigations and Design Reports (Original Contract Scope) (Existing Document Review) Consultant shall review available geologic and geotechnical literature pertaining to the project site. Review published soil and geologic data in existing files and as available from appropriate public agencies. This shall include a review of literature prepared by the California Geological Survey, the U.S. Geological Survey, County of Riverside, Caltrans, City of Palm Springs and City of Cathedral City, and other government agencies. An aerial photograph analysis shall be performed to evaluate the site geomorphology, history of development, and presence of potential geologic hazards (i.e., fault lineaments, slope instability).

(Project Set-up) As part of the project set-up, Consultant shall conduct the following:

• Perform a field reconnaissance to evaluate site conditions and mark the boring locations.

• Obtain no-fee permits from the City of Palm Springs and City of Cathedral City. • Notify Underground Service Alert (USA) at least 48 hours prior to drilling. • Arrange for a hollow stem auger drill rig.

(Field Investigation) Consultant understands Ramon Road is a busy street, so drilling within the street during normal hours may not be possible. Consultant has included provisions within their scope and cost to conduct their field investigation over the weekend.

Consultant's field investigation shall consist of coring the bridge deck and drilling exploratory borings.

(Bridge Deck Core Samples) Three (1 to 2 inches) core samples will be collected from the bridge deck to determine the bonding condition between the precast and cast-in-place layers of the concrete. Traffic control shall be required during the coring operation.

(Borings) The purpose of the borings shall be to:

• Obtain subsurface information within the channel bottom and on the streets.

Exhibit "A" Page 5 of29

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• Obtain undisturbed and bulk samples of the various soil types for geotechnical laboratory testing.

Their field exploration plan is presented in the table below:

Location Number of Borings I Depth

Bridge Abutments 4/70' (each)

Channel Bottom 4/50' (each)

Ramon Road 4/1 0' (each)

Landau Boulevard 2/1 0' (each)

Wet Well 1/50'

Total 15/590'

Borings shall be drilled with a truck mounted rig (CME 75 or equivalent) equipped with 8-inch diameter hollow stem auger for soils sampling. Soils shall be continuously logged and classified by a geologist/engineer in the field by visual examination in accordance with the Unified Soil Classification System.

Undisturbed ring samples of the subsurface materials shall be obtained using a Modified California Sampler (2.4 inches inside diameter and 3.0-inch outside diameter) lined with thin-walled sample rings. The sampler shall be driven into the bottom of the borehole with successive drops of a 140-pound hammer falling thirty (30) inches. The number of successive drops of the driving weight ("blows") required for each 6.0 inches of penetration shall be shown on the boring log. The soil shall be retained in brass rings (2.4 inches in diameter and 1.0 inch in height). The central portion of the sample shall be retained and carefully sealed in waterproof plastic containers for shipment to the laboratory. Representative bulk samples shall be collected from the borings.

The borings shall be backfilled loose with soil cutting. As a result, the surface may settle over time. If construction is delayed, Consultant recommends the owner monitor the boring site and backfill any settlement or depression that might occur, or provide protection around the area of the boring locations to prevent trip and fall injuries from occurring near the area of any potential settlement.

(Laboratory Testing) Soil samples obtained in the subsurface exploration shall be transported to Consultant's geotechnical laboratory. Geotechnical testing may include the following:

(Seismic Hazard Assessment) A geologic/seismic hazard evaluation shall be conducted for this project. This will include evaluations of the potential for surface fault rupture, seismic-induced ground deformation or settlement related to liquefaction, seismic compaction, lurching or lateral spreading.


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(Reports) Data obtained from the documents review~ field investigation~ and laboratory testing will be evaluated and draft reports including Geotechnical I Material Report and Bridge Foundation Report prepared in accordance with Caltrans Standards will be issued for review and comments.

(Extra Work for previous approved Amendment No. 4) Consultant shall provide project coordination related to securing a Right of Entry (ROE) to access the Agua Caliente Indian Tribal Lands through Bureau of Indian Affairs (BIA) in support of geotechnical exploratory borings in the Whitewater River. The Consultant shall obtain encroachment permits from CVWD and RCFC&WCDI provide BIA with an exhibit showing geotechnical boring location for approval~ and shall coordinate with the drilling contractor to accommodate the inspection schedule of the cultural monitor assigned by the Tribe.

(Extra Work for previous approved Amendment No.5) Water Percolation Testing: A Percolation Test shall be provided as described below to provide information that will enable the design team to provide design dimensions and other criteria of the proposed Dry Well located at approximate street Station 54+20. In the original contract scope, it was intended for infiltration rates to be provided during construction to establish Dry Well depth and other criteria. However, it is proposed to conduct the water percolation testing in the design phase to avoid a potential construction change order as the contractor will have enough data to bid the right size of the Dry Well.

{Task 1: Project-Setup) As part of the project set-up, Consultant shall perform the following:

• Obtain a no-fee encroachment permit from City of Cathedral City. • Conduct a site reconnaissance and mark the boring location so that a drill rig

access is available. • Notify Underground Service Alert (USA) at least 48 hours prior to drilling to clear

the borings locations of any conflict with existing underground utilities. • Engage a drill subcontractor to conduct the field exploration.

(Task II: Subsurface Exploration) Consultant shall drill one boring to a depth of 50 feet below existing ground surface. The purpose of the boring will be to:

• Obtain subsurface information and retrieve representative bulk samples of the various soil types.

• Conduct water percolation test.

If auger refusal is encountered at a shallower depth than listed above, then the boring will be terminated at the depth of refusal. Consultant shall remove the augers and attend another boring.

Exhibit 11A 11

Page 7 of 29

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The boring will be drilled with a truck mounted rig (CME 75 or equivalent) equipped with 8-inch diameter hollow-stem augers for soils sampling. Soils will be continuously logged and classified by the geologist/engineer in the field by visual examination in accordance with the Unified Soil Classification System.

Bulk samples of representative soil types will be collected in plastic bags. Groundwater level if encountered will be recorded.

{Task Ill: Percolation Test) A 3-inch diameter perforated pipe and gravel will be used to stabilize the test hole and reduce the potential for caving. Immediately following drilling, the test hole will be filled with water and allowed to presoak for 24 hours. The presoak will be reduced to 2 hours if the criteria for "sandy soils" are met.

The bored hole will be filled with water approximately one hour prior to conducting the percolation test. During testing, the water level will be recorded every 30 minutes. Water will then be added to near the original water level inside the boring. This method will be repeated a minimum of 6 hours for each test hole. The percolation rate will be corrected for gravel pack. It is intended that a percolation rate will be used in the design of the dry well. If an infiltration rate is needed, the measured percolation rate will be used to calculate an estimated infiltration rate using the Porchet inverse borehole method.

Following the completion of testing, the bored hole will be loosely backfilled with excavated soil. The pipes and gravel may remain in place following the fieldwork.

Consultant shall provide water supply for the percolation test.

(Task IV: Laboratory Testing) Laboratory tests will likely include sieve analysis.

(Task V: Percolation Test Report) A percolation test report shall be prepared which shall include the following items.

• Site and project description. • Discussion of the field procedures used in the investigation. • A discussion of the materials encountered in the boring and their measured

engineering properties. • Logs of the exploratory boring summarizing the subsurface conditions

encountered and a plan indicating the locations of the explorations. • Depth to groundwater. • Soils classification based on sieve analysis. • Percolation rate at the location of the Dry Well.

Deliverables: a Geotechnical I Material Report, a Bridge Foundation Report, a Percolation Test Report

Task 2.3 Update Storm Water Pollution Prevention Plan (SWPPP)


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(Original Contract Scope) Consultant shall prepare an update to the project's single Storm Water Pollution Prevention Plan (SWPPP) that meets the requirements of both the United States Environmental Protection Agency's (USEPA's) February 16, 2012 Construction General Permit (USEPA-CGP) and the California State Water Resources Control Board's (SWRCB's) 2009 Construction General Permit as amended in 2010 and 2012 (SWRCBCGP). The combined SWPPP is proposed because the project is located partially on lands designated as Allotted and Leased, and Allotted and Not Leased, by the Agua Caliente Band of Cahuilla Indians: the locations necessitates compliance with both EPA (for areas over Tribal land) and SWRCB (for areas not over Tribal land) requirements. The update will continue to utilize the EPA SWPPP Template, with revisions and additions needed to comply with SWRCB-CGP requirements.

The update shall include revisions to incorporate the final design drawings onto which Consultant shall incorporate appropriate Best Management Practices (BMPs) to reduce or control the discharge of pollutants associated with construction. In addition, construction related water pollution control BMPs identified in the Environmental Documents shall be included. The update shall include project ownership details. The update shall describe post-construction pollution control BMPs incorporated by the Engineer into the project design.

A draft updated SWPPP shall be provided for review and comment. Upon receipt of comments, comments within the scope of services shall be incorporated into the final updated SWPPP. The final updated SWPPP shall be certified by a Qualified SWPPP Developer (QSD).

Consultant shall file Notices of Intent (NOI) to obtain coverage under the USEPA-CGP and the SWRCB-CGP: for EPA, the NOI will be filed via the electronic Notice of Intent (eNOl) system, and for the SWRCB, the NOI will be filed via the Stormwater MultiApplication Reporting and Tracking System (SMARTS). In both cases, Consultant's role shall be as a Data Submitter or equal role: it shall be the responsibility of the City to designate Consultant has a Data Submitted, to certify the NOis as the Legally Responsible Person (LRP), and to pay required fees. Consultant shall provide support to assist the LRP in designating Consultant as a Data Submitter, certifying the NOis, and submitting required fees.

Deliverables: One draft SWPPP in electronic format (Adobe PDF format), one final SWPPP in electronic format (Adobe PDF format).

Task 2.4 Utility Relocation Coordination (Original Contract Scope) Consultant's goal of Right-of-Way Utility Coordination is to determine who has prior rights and identify potential moves and time frames. Critical during this early phase is the conducting of utility identification and the coordination, communication and continued involvement with design engineers, utility companies and utility relocation contractors. Consultant's Utility Relocation Manager shall prepare a Utility Matrix

Exhibit IIA" Page 9 of 29

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identifying utility owners, descriptions of facil ities, dispositions (i.e. protect, relocate, abandon) and verification of facilities by researching utility records and as-built plans; prepare utility confl ict matrix to identify all potential conflicts and develop a plan of action and tentative schedule; perform joint field reviews, review permit records and license agreements; verify facilities from each owner which has facilities in the project alignment area. It is assumed that no more than seven utilities may be affected by the project.

Consultant's Utility Relocation Coordination includes: • Obtain as-built plans, data from the design consultant, and other resources. • Review the project and utility plans. • Conduct interviews with design team. • Determine utility relocation and easement requirements. • Identify and interview all utility owners, and confirm their facilities within the

project area. • Coordinate with project engineer, local agency and utility owners. • Review utility owner's designs, prepare utility agreements and notices to owners. • Determine advance utility alternatives, perform site verifications.

(Extra Work for previous approved Amendment No. 4) The Consultant shall independently secure right-of-way documents to determine the prior right for the impacted utility poles own by SCE. The Consultant shall provide continuous effort in spite of SCE's reluctance of providing necessary information needed for the design team to move forward with the Report of Investigation and to draft a Utility Agreement addressing any advance funds for SCE's engineering work.

(Extra Work for previous approved Amendment No. 6) Consultant shall provide additional utility relocation coord ination services with Southern California Edison (SCE) due to SCE personnel changes, SCE delays, and additional meetings pertaining to the claim of liability and providing design support for relocation of the transmission pole at the southwest corner of the intersection of Ramon Road and Landau Boulevard.

(Extra Work for Amendment No. 7) Consultant shall provide additional utility relocation coordination services with Southern California Edison (SCE) for the newly discovered telecommunication facility mounted on the transmission poles at the southwest corner of the intersection of Ramon Road and Landau Boulevard .

Deliverables: Utility As-Built Plans, Utility Relocation Plans and Utility Conflict Matrix I

Task 2.5 Update Drainage Report (Original Contract Scope) Consultant shall provide revisions to the Drainage Report prepared during the project study report phase and provide assistance as required for the purpose of obtaining final approval.


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Deliverables: Drainage Report revisions and final drainage report

Task 2.6 Update Topographic Field Survey (Original Contract Scope) Consultant shall update and enhance the initially topographic survey by performing the following:

• Survey elevations and locations as a result of the utility potholing (25 potholes) and geotechnical boring (15 bored holes).

• Update utility plans based on the finding of the utility potholing. • Perform topographic survey in the channel to confirm the existing OG elevation

beneath the bridge. • Provide topo and cross-section survey of Landau Boulevard 600' north and 800'

south of Ramon Road . Survey shall include the existing Bowling Alley parking lot. • Perform field cross sections of Ramon Road from San Luis Rey to the west end

of bridge behind curb only, and from the east end of bridge to the east End of Curb Return of Avenida La Paloma.

• Provide topo survey of the existing detention basin and the Overflow Structure on the west side of Landau Boulevard north of Ramon Road.

• Dip the Storm Drain manholes in locations near where Junction Structures are to be constructed.

• Provide survey of the area at the Villa Bakery Restaurant where the transparent sound wall will be installed .

• File Corner Records and/or Record of Survey as required.

Deliverables: Updated topographic survey with supplemental survey observations in AutoCAD and PDF format

2.7 Value Analysis Study

(Extra Work for Amendment No. 7) Consultant's team member, VMS shall conduct Value Analysis (VA) study following the Caltrans VA methodology as outlined in the Chapter 19, "Value Analysis" of the Project Development Procedures Manual (PDPM) and detailed in the latest Caltrans VA Team Guide and Report Guide. VA study shall identify and evaluate alternative project solutions and provide recommendations to the City. Key engineering team members shall attend the VA meetings for briefing and shall respond to comments and revise drawings, as necessary, to finalize the study.

Deliverables: draft and final Value Analysis Study reports

Task 3: Plans, Specifications and Estimates (PS&E)

Civil Roadway PS&E

Task 3.1 65% Roadway Plans (Original Contract Scope)


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Consultant shall prepare the 65o/o Complete Plans based on the preliminary geometric layout. Drawings consist of a Title Sheet, three Typical Section and Detail Sheets, four 40-scale demolition plans west of the bridge and two demolition plans east of the bridge, and eight 20-Scale Street Improvement Plan and Profile sheets west of the bridge and four sheets east of the bridge. All elements of the work are included in the 65°/o Roadway Plans, however, some details may be remaining for the 95o/o Submittal. The title sheet shall be prepared in accordance with City of Palm Springs standards and includes the project title, vicinity map, sheet index, general notes and other information in accordance with the City's format and City of Cathedral City signature block. The Typical Section and Detail Sheets shall include the typical street sections, non-standard details as well as a full listing of roadway construction and removal notes. The Demolition Plans and the Street Improvement plan and profile sheets shall show the existing topography, limits of work, construction notes, right-of-way, utilities, and other general design elements. Centerline, top of curb, and/or edge of pavement design shall be provided on the Street Improvement profile. Retaining wall layouts, top of wall, bottom of footing, and finished surface elevations are shown on the Street improvement sheet plan view. Cross Sections at intervals of no greater than 50 feet shall be drawn at H: 1 II = 20' and V: 1 II = 2' and prepared to establish the limits of grading and confirm the project footprint. Earthwork quantities are established based on these cross sections.

Consultant shall prepare one detail sheet showing the striping modification of the Palm Springs Lanes/Ramon Tower parking lot including the relocation of one existing parking lot light. Electrical connection is provided on the Landscaping plans.

Deliverables: 65% roadway plans

Task 3.2 65°/o Storm Drain Plans and Erosion Control Plans (Original Contract Scope) Consultant shall prepare all Storm Drain Improvement plans on both east and west side of the bridge to include:

• Relocate six (6) existing catch basins west of the bridge. The new catch basins will be the same size as the existing catch basin being replaced.

• Relocate three (3) existing catch basins east of the bridge to include: • Dry Well east of Landau near street station 51 +20 • Overflow structure in the Detention Basin and associated hydrology/hydraulic

analysis • New catch basin near street station 48+50

• Provide details of Rip Rap Erosion Control Blanket at the south end of extended Landau Boulevard

• Provide updates to calculations and approvals. • Prepare quantities and cost estimate using the 65°/o Complete Plans.

De/iverables: 65% Storm Drain Plans, Quantities and Cost Estimate

Task 3.3 65o/o Channel Improvement Plans (Original Contract Scope)


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Consultant shall prepare final channel improvements plans at a scale of 1 "=40' based on the agency approved preliminary channel improvements plan. The plan set shall consist of a title sheet, a layout/grading plan sheet, a channel profile sheet, a channel cross section sheet, and three (3) detail sheets for a total of seven (7) sheets. The City of Palm Springs, CVWD, RCFC&WCD, and APWA standards and structures will be used in the design. This scope shall include preparation of quantity and cost estimates in support of the channel design.

Consultant shall update the final bridge hydraulics and floodplain/scour report based on the final channel and bridge design for C\NVD and RCFC&WCD review and approval.

Deliverables: Channel Improvements Plans, Updated Final Bridge Hydraulics and Floodplain/Scour Report, and Quantity/Cost Estimates.

Task 3.4 65°/o Landscape Plans (Original Contract Scope) Consultant shall provide the landscape architecture services. As shown on the Ramon Road Bridge construction 30°/o Geometric Approval Drawings, the limits of planting and irrigation improvements consist of the following locations:

• Modify the planting and irrigation of the reconfigured median between Agua Caliente Trail and Crossley Road.

• Create planting and irrigation within new median on Ramon Road between Crossley road and the west side of the bridge.

• Modify existing planting and irrigation within the reconstructed median between Landau Blvd and Candlewood Drive, plus modify the planting and irrigation of the reconfigured median immediately west of Candlewood Avenue.

• Create Planting and Irrigation Plan for the north parkway between street stations 11 +25+/- and 14+60+/- and between stations 21 +90+/- and 22+55+/- and between stations 23+1 0+/- and 33+1 0+/-. Drawings include the relocation of the illuminated "U-Store It" sign.

• Modify the existing parkway landscaping in the south side of Ramon Road between stations 17+50+/- and 22+50+/-.

• Modify the existing parkway landscaping on the west side of Landau Boulevard between stations 1 0+ 70+1- to 13+30+/-.

• Modify existing parkway landscaping on private property at three locations: north side east of Landau Boulevard between street stations 51 +05+/- and 54+30+/-; south side east of Landau Blvd between stations 49+80+/- and 52+00+/-; and south side east of Landau Blvd between street stations 52+40+/- and 55+60+/-. Landscaping drawings include the relocation of illuminated business signage at the Chevron Gas Station and Palm Springs Bowling lanes, and the relocation of on parking lot light.

(Schematic Design) The initial phase consists of the following subtasks:

• Site Visit and Project kick-off meeting with the design team and City members • Review Goals and Objectives and Project Schedule.


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• Prepare Project Base Plans. • Site Analysis and Inventory of Existing Plant Material and Irrigation Systems • Prepare Schematic Landscape Design Concept and Renderings for Selected

Areas. • Conceptual Landscape Lighting Plan • Color Presentation Plans for City Review • Meet and Review with City Planning and Engineering and Presentations

[Design Development (65%> Submittal)] Upon acceptance of the schematic design, development of the 65%> Complete Design consists of the following:

• Develop Preliminary Project Master Plan. • Prepare Final Landscape Concept and Renderings for Selected Areas. • Master Plant Palette and Color Board • Review with Planning, Engineering and Tribal Committees. • Develop Water Calculations. • Develop Preliminary Construction Cost Estimate. • Develop Implementation and Phasing Program. • Color Presentation Plan and Plant Palette for City Review • Final Presentation to City and Review Committees • Submittal to DWA and City

Consultant's artist shall provide a review of the 95°/o Complete Bridge Aesthetic Plans to ensure that the bridge architectural design is consistent with the conceptual aesthetic plan that was approved by the Public Art Commissions.

Deliverables: Presentations of conceptual landscaping concepts including colored plans and plant palette, 65% landscape plans

Task 3.5 65°/o Traffic Control Plans (Original Contract Scope) Consultant shall provide construction traffic handling, including traffic control plans needed to establish work area and associated lane closures and placement of temporary traffic control devices. The basic approach will follow the stages described in the Project Report (equivalent) and consist of three construction stages: Stage One, building the north side of Ramon Road; Stage Two, building the south side of Ramon Road; and Stage Three, constructing the raised medians and other final construction work. Base plans shall be prepared at 1"=40' and shall normally show a minimum of 2,000 feet of roadway with relevant medians, striping, and work area. The design, legend, and location of all work area signs, barricades, applicable notes and legend, and necessary additional traffic controls are designated and placed on the plan sheets. The plans shall be prepared to conform to the general requirements of the City of Palm Springs and Cathedral City, with consideration for the needs of the Contractor's construction operations. The project is expected to require six sheets. Prior to the 65°/o submittal, Consultant shall perform QAQC and independent peer review for the traffic


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control plans. Review comments will be redlined and forwarded to designer for correction. Deliverables: 65% Traffic Control Plans

Task 3.6 65o/o Signing and Striping Plans (Original Contract Scope) Consultant shall provide the signing and striping plans. 40-Scale signing and striping plans shall be prepared on double tiered sheets showing the location of all proposed traffic signs, traffic stripes, markings, and the proper disposition of all affected existing signs and markings. Any work required to transition the proposed stripes to join with existing stripes shall be provided and the plans shall identify existing markings, signage, curb markings, and fire hydrants. Existing signage requiring relocation shall be shown. Existing signage to be relocated that does not meet MUTCD standards shall be shown to be replaced. The project is expected to require five sheets. Prior to the 65°k submittal, Consultant shall perform QAQC and independent peer review for the signing and striping plans. Review comments will be redlined and send to designer for correction.

Deliverables: 65% Complete Signing and Striping Plans

Task 3.7 65°/o Traffic Signal Improvement Plans (Original Contract Scope) Consultant shall prepare plans for installation of traffic signal communication conduits along the Ramon Road widening limits. The new conduits will run between the three existing traffic signals connecting each controller combined. Conduit size would be determined by the agencies involved during the design phase. Pull boxes are expected to be located in 200 feet intervals and conduit termination at end points would stub out to a pull box. A trace wire will be installed in each conduit. Actual communications cable shall be added at this time only as requested by the agencies.

Consultant shall prepare traffic signal modification Design at the following three locations:

• Ramon Road and Landau Boulevard: Full intersection widening improvements are proposed which include a new south leg on Landau Boulevard. It is expected that new signal poles and hardware shall be required for all corners along with revised detection areas and updated lighting and pedestrian control to comply with current agency guidelines.

• Ramon Road and Crossley Road: Full intersection widening improvements are proposed which involve all four curb return areas. It is expected that existing signal poles would be replaced or relocated depending on the pole type and condition. Detection areas will be revised. Pedestrian control and lighting would be updated to current agency guidelines.

• Ramon Road and San Luis Rey Drive: Ramon Road widening mostly impacts the northeast corner to add a westbound to northbound combination through/right turn lane. As is typical with signal plans, a full intersection layout would be prepared with a focus on the northeast corner improvement. Existing signal poles


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conflicting with the proposed curb ramp would be replaced. The signal controller cabinet is presently set back and would be examined closely to avoid relocation and possible intersection rewiring.

Deliverables: 65% submittal for a total of 4 to 5 plan sheets for 1"=20' scale

Task 3.8 65°/o Bridge Mounted Lighting Plans (Original Contract Scope) Local agencies such as Palm Springs do not use overhead street lighting on Ramon Road in the project area. Proposed roadway lighting is low level with fixtures mounted in the new bridge barrier walls. This type of bridge lighting is similar to that found on the Dinah Shore Drive Bridge rails and is not invasive to nocturnal fauna. Consultant shall review various wall mount or step type light fixtures and focus on those suitable for LED type lamps. The plan would provide details for fixture installation, wiring, service locations and conduit installation. Street lighting plan for the roadway segment is not part of the plans as it is not needed per existing condition.

Deliverables: 65% submittal for 2 plan sheets on 1 '=40" for one sheet and 1 '=20" for the detail sheet

Task 3.9 95°/o Civil Roadway Plans, Specifications, and Estimate (Original Contract Scope) (Civil Roadway Plans in All Disciplines) Comments from various agencies for the 65°/o Civil design submittal shall be reviewed and resolved. If needed, a meeting with the Cities or the review agencies shall be held to seek clarification on comments. Consultant shall incorporate resolution of comments in the 95% PS&E. Unresolved details are finalized and all drawings receive a general progress update. Landscape Plans include; Project Master Planting Plan, Construction Phasing Plan, Plant Removal/ Relocation Plan, Hardscape Plan and Finish Schedule, Master Planting Plan, Detailed Planting Plan at Selected Areas, Lighting Plan and Specifications, Irrigation Plan, Planting Details, and Irrigation Details.

(Technical Specifications) Consultant shall prepare special provisions for items of work and conditions that are not covered by the Standard Specifications for Public Work Construction (Green Book). Construction Technical Specifications for the roadway improvements shall be prepared using the City's format and the provided boilerplate materials. Each item of work shall include a method of measurement and payment. Quantity calculation and construction cost estimates in Microsoft Excel format with a contingency directed by the City shall be prepared. Consultant shall conduct an internal QA/QC review of the project deliverables prior to submittal.

(Cost Estimate) Quantity calculation updates and construction cost estimates in Microsoft Excel format with a contingency directed by the City shall be prepared.

Exhibit "A,. Page 16 of 29

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(Extra Work for previous approved Amendment No. 5) A. Pavement Reconstruction: The original PS&E Scope and Fee were prepared based

on the approved GAD's. The GAD's shows grind and AC overlay of Ramon Road from the east side of the Crossley Road intersection to the west end of the bridge, and from the east end of the bridge to the east side of the Landau Boulevard intersection. 65% Plans were prepared with pavement grind and overlay in these segments. The top of curb profile was designed based on an extension of the existing cross fall measured from the sawcut line. The Traffic Control concept was established based on sequentially moving traffic onto the existing roadway while the new pavement is constructed.

Based on various team discussions in PDT meetings and per the City's concurrence, it was determined that completely removing and reconstructing the existing pavement in the described Ramon Road segments is more cost-effective than grind and overlay. The work involved to incorporate the modifications to the plans consists of the following:

• Revise street improvement plans from the east side of the Crossley I Ramon intersection at approximate Station 23+16 to the west end of the bridge at approximate Station 34+84, and from the east end of the bridge at approximate Station 46+56 to the east side of Landau I Ramon intersection at approximate Station 49+ 78 to indicate pavement reconstruction.

• Develop a centerline profile on Ramon Road from the east end of the bridge to the east side of Landau Boulevard. There should be a consistent cross fall between the centerline finished surface and the lip of the gutter.

• Reassess the 65°/o design top of curb profiles to make sure the cross falls and sections are within basic design tolerances;

• Prepare 20-foot Intersection grid grade details for the Ramon Road and Landau Boulevard intersection. Intersection grid grades are common details required on pavement reconstruction projects in major intersections. Intersection grid grades will be placed on a new detail sheet.

• Revise traffic control plans to accommodate the pavement removal and replacement. Limits of construction phasing need to be reestablished to include all sections of the roadway within the reconstruction limits. Additional stages or phases will be required to cover all sections of the roadway and the Landau Boulevard intersection.

B. Retaining Wall Profile: The retaining wall on the north side of Ramon Road west of the bridge spans from approximate Station 31 +25 to 34+30. The 30% Complete GAD's identified the wall as a Masonry Retaining wall per SPPWC Standard 618-3. Task 3.1 65o/o Complete Roadway Plans states "Retaining wall layouts, top of wall, bottom of footing, and finished surface elevations are shown on the Street improvement sheet plan view." During the development of the 65°/o Plans it was determined that the wall needed a barrier and the wall type was modified to a Caltrans standard reinforced concrete Type 1 retaining wall. The wall profile shall be provided in the 95o/o complete submittal that consists of the


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top of wall, finished ground at back of sidewalk, existing grade over the footing, and the top of footing that shows the elevation steps.

C. CV-Link I CCWWBP Coordination and Plan Modifications: The Cathedral City Whitewater Bike Path (CCWWBP) is an early segment of the CV-Link stretching from Vista Chino to Ramon Road along the west levee of the Whitewater River. It is adjacent to the Ramon Road widening project. Consultant shall perform the following extra work: • Coordinates with CVAG and CCWWBP Consultant ALTA: Coordination with

project team, CVAG and CVAG's consultant ALTA regarding design elements on the bridge barrier, decorative concrete walks, driveway location and driveway aesthetic treatments. Task items include review of ALTA's concepts, project communication, and modification of Street Improvement Plans, Bridge Plans, Bridge Lighting Plans, and Landscape Plans.

• Provides CV-Link Trail construction directly below the Bridge: a. Bridge Hydraulics and Scour Study

Consultant shall update the CVWD and RCFCD approved bridge hydraulics study based on the proposed CV-Link Trail traversing through the bridge. The stream and bridge cross sections of the current HEC-RAS model shall be revised to reflect the proposed bike path. The results will be reviewed and evaluated if the bike path will adversely impact the current and agency-approved water surface elevations, flow velocities, and scour values.

Deliverables: Supplemental Hydraulics Memorandum b. Channel Improvements Plans

Consultant shall update the channel improvements plans within the bridge limits to reflect the proposed CV-Link Trail. The cross section of the proposed CV-Link Trail will be added. Horizontal and vertical location of the CV-Link on the channel floor will be provided by CVAG.

Deliverables: Updated Channel Improvements Plans • Provides aesthetic barrier design to accommodate the proposed CV-Link

Trail. Reviews proposed CV-Link design and coordinate with Ramon Road Bridge walkway design and approved aesthetics and present findings to the design team and the City. Revises design details in coordination of CV-Link aesthetics for bridge, barriers, railing, decorative paving, and landscaping. Information related to the design details will be provided including size, layout, design intent, color, texture, treatment of material and preliminary costs.

Deliverables: 95% Street Improvement Plans, Drainage Plans, Channel Improvement Plans, Landscaping Plans, Traffic Control plans, Signing and Striping Plans, Traffic Signal Modification Plans, Bridge Lighting Plans,, 95% Complete Specifications, and Updated Construction Cost Estimate.

Structure PS&E

Task 3.10 65% Unchecked Structure Plans


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(Original Contract Scope) Engineering conclusions for the preferred alternative identified in the final bridge type selection report shall be carried into the final design phase. The final bridge design shall be based on Caltrans-amended AASHTO LRFD Bridge Design Specifications, various Caltrans Bridge Design and Detail Manuals, and the Seismic Design Criteria (SOC). The structure plans shall include a plexiglass soundwall around the outdoor sitting patio area associated with the Villa Bakery Mexican Food Restaurant located at the northwest corner of the intersection of Ramon Road and Crossley Road for sound mitigation.

(Extra Work for previous approved Amendment No. 4) The Consultant shall review contractor's submittals and conduct field inspection for the emergency repair work at the bridge expansion joints at three piers. With City Project Manager's prior approval, the Consultant shall direct the contractor to correct deficient work. The Consultant shall prepare a final inspection report documenting inspection logs and the recommendation for denial or acceptance of the repair work.

Deliverables: 65% unchecked structure plans

Task 3.11 Bridge Design Independent Check (Original Contract Scope) The 65o/o unchecked bridge plans shall be independently checked by a separate licensed bridge engineer, who has not been involved in the design of the project. A separate set of design check calculations including quantity calculations shall be prepared in accordance with Caltrans bridge design practice. The checker shall review the plans for completeness, consistency, correctness of references. The bridge designer shall revise the design and plans to mitigate checker's review comments. The checker shall perform back check to concur that the comments have been adequately addressed. All comments and responses shall be documented in the project files.

Deliverables: independent check review comments and check calculations, comment and response matrix

Task 3.12 95°/o Structure PS&E (Original Contract Scope) Response to all agencies' review comments for the 65%> submittal shall be prepared and included in 'this submittal. Consultant shall use Microsoft Word to prepare and edit Caltrans 2010 Standard Special Provisions (SSP) for structural work at 95o/o PS&E. Consultant shall prepare a list of Caltrans standard structure pay items for bridge construction. Design quantity calculations shall be performed using standard Caltrans and City forms and marginal cost estimate summary sheets. Item unit prices shall be adjusted using Contract Cost Data Book published by Caltrans. The structure plans and quantities shall be updated per checker's comments.

Deliverables: 95% bridge plans, specifications and cost estimate

Task 3.13 Final100% Design PS&E and Contract Bid Documents


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(Original Contract Scope) Consultant shall incorporate Cities' review comments on 95% Roadway and Structure PS&E, and compile and submit final bridge, channel and roadway PS&E packages per City's requirements. It is expected that the plans shall be prepared in AutoCAD 2010 or higher format and in PDF. The final plans are to be plotted on "Arch D" size Mylar. Specification documents, including technical specifications, shall be provided on compact disc in Microsoft Word format with all hidden text shown as well as in PDF. The Engineer's estimate shall be provided in Microsoft Excel format as well as in PDF.

Consultant shall prepare encroachment permit applications for submittal to Riverside County Flood Control and Water Conservation District (RCFC&WCD) and Coachella Valley Water District (CVWD). The permit application documents shall be prepared per RCFC&WCD and CVWD's submittal requirements. The permit filing fees will be paid by the City.

The Final PS&E shall include organized Resident Engineer (RE) Pending Files which contain construction related documents and information through the various project development phases for structure, channel and roadway work. The RE Pending Files shall include bridge 4-scale deck grade plots, as-built plans, geotechnical reports, and special instructions for the field Resident Engineer, Structure Representatives and City Inspectors.

(Extra Work for previous approved Amendment No. 5) At this time, the latest editions of both Caltrans and Greenback Standard specifications are dated 2015. It is anticipated that prior to bid, Caltrans and APWA will issue an updated version of standard specifications. Budget is provided to update the specifications to comply with updated standards prior to the project going out to bid.

Deliverables: final contract bid documents, encroachment permit applications and RE Pending Files

(Extra Work for previous approved Amendment No. 6) A. Add a new retaining wall east of Whitewater River on the north side of Ramon Road

west of Landau Boulevard: As directed by the City of Cathedral City and per the request of the Cimarron Cove Homeowners' Association (HOA), the embankment slope as shown in the 95% Complete Plans on the north side of Ramon Road west of Landau Boulevard is to be modified to provide a minimum of five feet of horizontal clearance from the property line of Assessor Parcel Number (APN) 677-420-040, belonging to the Cimarron Cove HOA. The design change is to eliminate a temporary construction easement and encroachment into the private property. The modification of the toe of the embankment slope involves providing a retaining wall at the back of the sidewalk along Ramon Road. The following sub tasks are added: • Consultant shall coordinate with City of Cathedral City to develop a retaining wall

and fill slope concept for the City of Cathedral City following the HOA Community Meeting in July 2017. Consultant shall develop a concept that shows the location of the Midwest Guardrail System and required hand or safety railing on the top of


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the retaining wall, and a landscaping concept of the remaining embankment slope.

• Consultant shall provide retaining wall design in the 100% Complete PS&E. The wall plan(s) shall consist of one sheet showing plan and profile, and a typical section. Construction plans, cross sections, quantities, and specifications shall be modified to reflect the revised toe of the slope, the retaining wall, and the landscape treatment. Deliverables: Retaining Wall Plans included in the 100% PS&E

B. CVWD's Revision of Channel Design Criteria: On September 12, 2017, Coachella Valley Water District (CVWD) adopted a new Ordinance No. 1234.2, an Ordinance of the Coachella Valley Water District Establishing Regional Stormwater Facility Design Standards and Development Requirements. The Ordinance updated the design standard by replacing the Standard Project Storm/Standard Project Flood (SPS/SPF) with 100-Year Plus Storm/Flood. On February 18

\ 2018, CVWD further issued a draft Guideline K-3, a Scour Calculation Guidance. The new CVWD Design Ordinance and Scour Guidance affect the design of the depth of the cut-off walls for the channel concrete lining protecting the pier footings and the extension of the abutment slope protection of the Ramon Road Bridge. The following sub tasks are added: • Update the CVWD approved Bridge Hydraulics Study since the approved bridge

scour analysis in 2015 was performed using the replaced SPS/SPF standard. Re-evaluate the scour depths associated with the new 1 00-year Plus design criteria, which could result in reduced scour depths and the construction cost; and

• Update the channel improvement plans to reflect the reduced transverse and longitudinal cut-off walls and update the quantity estimates accordingly.

Deliverables: Updated Channel Improvement Plans in the 100% PS&E C. Drv Well Siphon Underdrain Across Ramon Road: As directed by the City of

Cathedral City, the 95% design PS&E shall be revised to include a siphon underdrain in the form of an 18" conduit from the proposed Dry Well on the north side of Ramon Road east of Landau Blvd. near the entrance driveway of the Ramon Plaza to a grated outlet near the Southwest curb return of Candlewood Avenue. Sub tasks include the following: • Provide utility potholing and coordination with pothole subcontractor for four

utilities in the path of the proposed siphon underdrain; • Survey the pothole sites to obtain precise locations of the utilities; and • Design the siphon underdrain for the 1 OOo/o Plans, provide a Drainage Addendum

Report, and update the specifications and construction cost estimate. Deliverables: Pothole Report, Dry Well Siphon Underdrain in the 100% PS&E and a Drainage Addendum Report

D. Develop an Inventory of Private Property Landscape and Irrigation Conditions: The task consists of inspecting twelve individual sites to take an inventory of the existing parkway irrigation conditions of the sites that are getting new landscape due to street widening and providing an inventory of material that the Contractor will need to include in his bid. Existing irrigation systems are on private properties. The inventory information shall be included in the project specifications.


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Deliverables: Inventory information for each landscape site provided in the appendix of the 100% Specs.

E. Update Bridge Hydraulics and Scour Study to Include Golf Course Modification and CV-Link Trail : Consultant shall update the CVWD and RCFC&WCD approved bridge hydraulics study based on the future CV-Link ramp and the relocated Golf Course Tee Box and Green for Hole No. 5 on the north side of the bridge. The channel and bridge cross sections of the current HEC-RAS model shall be revised to reflect the proposed ramp and relocated tee box and green. The results wi ll be reviewed and evaluated if the future CV-Link bike path will adversely impact the current and agency approved water surface elevations, flow velocities, and scour values. Deliverables: Supplemental Hydraulics Study Memorandum

(Extra Work for Amendment No. 7) Consultant shall redesign the north side of Ramon Road east of Landau Boulevard to a higher grade to achieve positive curb drainage and el iminate the dry well and siphon. Revising the 95% complete plans to achieve positive drainage shall consist of reconstructing the north side of Ramon Road from Landau Boulevard to approximately 500 feet east. Work consists of a redesign of the top of curb profile, possible adjustments to the median curb profiles, revisions to the plan view to include pavement reconstruction , revisions to the Chevron driveway reconstruction detail , updates to the Typical Section, and revisions to the Cross Sections drawings and to the quantities.

Task 4: Environmental Permitting

Task 4.1 Habitat Mitigation and Monitoring Plan (Original Contract Scope) Consultant shall prepare a Habitat Mitigation and Monitoring Plan (HMMP) for submittal to and approval by the CDFW. In conformance with this HMMP, Consultant shall provide services that ensure that mitigation measures to protect habitat and/or sensitive species are carried out and that these activities as sufficiently monitored and reported upon. These activities are associated with the requirements of the CDFW 1602 Streambed Alteration Agreement and associated HMMP, including annual reports (for a period of five years) and following project completion. Consultant shall coordinate with AMEC Earth and Infrastructure on the performance of requ ired pre-construction surveys.

Deliverables: Draft & Final Habitat Mitigation and Monitoring Plan, and Annual HMMP reporting to the CDFW for a period of Five-Year

Task 4.2 CEQA Exemption & Revalidation of NEPA Document (Original Contract Scope) (Geotechnical CEQA Clearance) Consultant shall prepare, process through the City and file a CEQA Exemption, to the extent practicable and necessary, in support of geotechnical boring in the channel of the Whitewater River in proximity to the subject bridge widening.


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Deliverables: Draft CEQA Categorical Exemption Form

Provide revalidation of NEPA document to support request for authorization for right-ofway acquisition and construction. It is assumed that one separate validation report will be required for each request for authorization. Validation shall be prepared in conformance with Exhibit 6-G of the Caltrans Local Assistance Procedures Manual.

Deliverables: LAPM Exhibit 6-G NEPA/CEQA Validation Form

Phase 3- Right-of-Way

Task 1: Right-of-Way Services

Task 1.1 Legal Descriptions and Plats (Extra Work for previous approved Amendment No. 4) Consultant shall provide Legal Descriptions and Plats consisting of the following:

a. Using updated prel im reports and easement documents provided by right-of-way consultant, Consultant's surveyor shall review and verify parcel and right-of-way data for the affected parcels.

b. Prepare dimensioned exhibits of the proposed right-of-way takes, temporary construction easements, and slope easements. Provide to right-of-way consultant for their right-of-way negotiations.

c. Edit parcel configurations as needed until agreement is reached with parcel owners. d. Prepare legal descriptions for each proposed right-of-way and easement. e. Submit updated set of legal descriptions and exhibits to right-of-way consultant for

review and comments. f . Once negotiations are finalized, produce signed and stamped originals for right-of

way consultant to attach to the executed right-of-way and easement documents.

Deliverables: Updated RIW Constraints map and legal descriptions with exhibits for up to 48 total right-of-way or easements.

(Extra Work for Amendment No. 7) The proposed Project impacts three parcels (APNs 680-170-051 , 680-170-014, and 680-170-053) south of Ramon Road between Crossley Road and Landau Blvd . in City of Palm Springs. Allottee 98C covers portion of APN 680-170-051 and the entire APN 680-170-014. Allottee 104C covers portion of APN 680-170-051 and portion of APN 680-170-053. Allottee 65E covers the majority of APN 680-170-053.

Consultant shall modify the 11 legal descriptions and plats for street and channel easement that were prepared by APN, and split them by allottee per BIA's new standard as follows:

(Allottee 98C)


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• Right of Way - Extend the take to cover all of 98C by adding the portion in APN 680-170-014.

• Slope Easement - Extend the slope to cover all of 98C by adding the portion in APN 680-170-014.

• TCE- Add the portion shown in APN 680-170-014 to cover al l of 98C.

(Allottee 1 04C) • Right of Way - Remove the portion that falls on 65E. • Channel Structure Easement - Remove the portion that falls on 65E. • TCE - Remove portion that falls on 65E. • Slope Easement - Create a new legal and exhibit for Allottee 1 04C by taking a

portion from APN 680-170-053.

(Allottee 65E) • Right of Way - Remove the portion that falls on 1 04C. • Slope Easement - Remove the portion that falls on 1 04C. • Channel Structure Easement - Remove the portion that falls on 1 04C. • TCE - Remove the portion that falls on 1 04C.

Oeliverab/es: Legal descriptions with exhibits for Al!ottees 1 04C, 65E, and 98C

Task 1.2 Right-of-Way Appraisals, Negotiation and Acquisition (Extra Work for previous approved Amendment No. 4) It is right-of-way consultant's privileged responsibility to represent the City in the most professional and respectful manner .. Right-of-way consultant's project manager shall work closely with the design team and the City to review project assignments and establish lines of communication, procedures and protocols and shall work to keep the team on track to reach goals. To track and manage on-going right-of-way project tasks and budget, the right-of-way project manager will:

• Oversee all activities performed under the right-of-way contract. • Coordinate with any federal and state oversight agencies as directed by the City. • Ensure that all consultants have appropriate licenses for the scope of work. • Coordinate team, sub-consultant and city meetings. • Prepare and maintain a detailed project schedule and provide progress reports. • Coordinate with all stakeholders. • Maintain project files. • Develop and maintain a quality assurance/quality control plan . • Acquire Right of Entry Letters for geotech vehicles to access the channel in order

perform the boring work.

(Appraisals) Appraisal services to be provided include:

• Oversight of the appraisal process. Appraisals for each proposed property acquisition are required as an element for the determination of Just Compensation. Appraisals for the estimates of value for proposed property


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acquisitions must meet the current Uniform Standards of Professional Appraisal Practice (USPAP) requirements.

• Submit a "Notice of Intent to Appraise .. to all property owners expected to have their properties partially acquired. Appraisers will send introductory letters indicating when the appraiser expects to contact the owner for an appointment to perform the appraisal. When summary appraisal reports are completed and before they are accepted, they are reviewed for accuracy, and regulatory compliance. Right-of-way consultant shall coordinate approval of the Just Compensation prior to preparing the offer packages.

Appraisal Review services to be provided include: • Before acceptance and approval of the property appraisals, an independent

appraisal review is made. The review includes inspecting sales to determine comparability, reviewing appraisal for conformance to Uniform Standards of Professional Appraisal Practice, reviewing ~~highest and best use" conclusions, examining valuation methods, analyzing exhibits, checking mathematical calculations, and preparing a narrative report that describes the review process and sets forth the reasoning behind the review. An appraisal review is recommended to ensure that the appraisal is based on sound appraisal theory, contains appropriate documentation to support the appraisers' conclusions and complies with regulatory codes. A recommendation of Just Compensation is then made based on the reviewed, collected, assembled, correlated and analyzed data.

Deliverables: Appraisals Reports for proposed properties, Review Appraisals Reports for proposed properties

Task Assumptions: Assumes no more than 26 appraisals and 26 appraisal reviews will be provided.

(Right-of-Way Negotiation and Acquisition) Title Services to be provided include:

• Obtaining and reviewing title reports to verify ownership and identify any easements or encumbrances. One report will be obtained for contiguous parcels with the same owner when possible. Updated preliminary title reports will be obtained as needed.

• Right-of-way consultant shall perform title clearance by resolving problems relating to unusual circumstances with regards to title or ownership, addressing exceptions pertaining to property such as mortgage liens, restrictions, easements and rights-of-way. Right-of-way consultant shall work with the title company to obtain lender subordination when needed and shall obtain a final title policy at the close of escrow.

Acquisition services to be provided include:


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• Villa Bakery is a candidate for a Plexiglas soundwall along their patio as called out in the project's environmental noise report. This proposal includes coordinating with Villa Bakery for the soundwall.

• Prepare Offer Packages and deliver to owners. • Negotiate with the property owners (or their appointed representatives) for the

purchase of the required property rights. Right-of-way consultant shall present First Written Offers to each owner. All First Written Offers will include Appraisal Summary Statements.

• Three impacted parcels show US 680/BIA as the owner. This proposal includes acquisition services for one (1) Indian allottee for each of the three BIA parcels.

• Present property owners with material relevant to value determination. Property owners will be given reasonable time to consider an offer within the confines of the project schedule. Right-of-way consultant shall continue negotiations with the property owners until every effort has been expended and it appears that the only remaining method of acquisition is through legal proceedings.

• Prepare all acquisition agreements and other documents necessary to complete the acquisition in a form provided by the City.

• Provide needed information to City staff for preparation of agenda items and public hearing notices, as necessary for approval of acquisition terms.

• Maintain a diary of all pertinent information and contacts concerning the project parcels.

• Provide a written summary of the status of the acquisition of each parcel on a monthly basis and/or upon request of City staff.

• Once an agreement has been reached, obtain the owner's signature, notarized when necessary, and confirmation of owner's capacity to sign the agreements.

• Promptly transmit all executed documents on successfully negotiated parcels to City for acceptance.

Escrow/Closing services to be provided include: During the escrow period, right-of-way consultant shall work to ensure that the property can be conveyed to the City without any unacceptable liens or encumbrances.

• Obtain property owner signature on agreement(s) and other necessary documents.

• Obtain City's signature on Certificates of Acceptance. • Open escrow and coordinate escrow requirements with property owner. • Provide draft escrow instructions for City approval. • Coordinate payment between the Grantor, City and the Escrow Company. • Review Title Reports for liens, CCR's and other encumbrances. • Obtain all necessary documentation to convey title. • Review closing statements and submit to City for approval; close escrow.

Relocation Assistance: Apart from the people affected by relocation activities, appropriate notices are one of the most important parts of a relocation program. Providing notices to affected party(s) in a timely manner can save the agency money and protect the affected party(s) from


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unnecessary hardships. Right-of-way consultant's relocation agent will make contact with the displaced person or business as soon as possible, thereby establishing a clear line of communication conducive for seamless relocations. Right-of-way consultant shall create a Relocation Plan if needed, present possession notices and relocation benefits to tenants and owners, order and review FF&E appraisals, assist displacees in their relocation and process relocation forms and deliver to the City for payment. Right-ofway consultant shall arrange for non-English-speaking persons affected by the project to have assistance in understanding the project. For this project relocation of signage for three businesses is anticipated for a gas station, storage facility and bowling alley. Also relocation services for one billboard on the north side of Ramon Road east of Whitewater River are included in this proposal.

(Caltrans Right-of-Way Certification) Right-of-way consultant shall obtain right-of-way certification which documents that real property interests have been secured and that all right-of-way activities were conducted in accordance with the applicable Caltrans policies and procedures.

During this process, right-of-way consultant shall assist in the preparation of the submittal package that will include the certification form and compilation of the necessary backup documents. This would generally include deeds, resolutions of necessity, final orders of condemnation, access agreements, cooperative agreements, utility relocation plan documentation and permits among other documents.

(Eminent Domain Support) While it is right-of-way consultant's ultimate goal to negotiate a fair settlement between the City and the property owner, sometimes it is necessary to resolve valuation or design differences in court. If negotiations are unsuccessful, agents will prepare summary memos outlining efforts made and the reason(s) for impasse. Right-of-way consultant can send an impasse letter to the property owner(s) and begin eminent domain support tasks, working with the City's attorney and the City. Each contact would be documented (including the date, place and names) and maintained in the parcel file throughout the negotiation process. This proposal assumes four acquisitions will require eminent domain support and litigation guarantees.

(Extra Work for previous approved Amendment No. 6) Right of Way Project Support: The following tasks are additional work necessary to assist in completing the right-of-way compensation offer packages.

• Villa Bakery Noise Barrier. Present project renderings of the proposed noise barrier improvements along with research and design recommendations of construction details.

• Landscape Exhibits for Offer Agreements: Provide twelve landscape exhibits related to the owners of various properties that will receive significant landscape modification to their properties for Offer Agreement Negotiations.

• Cimarron Golf Course Hole #5 Safety Zone Exhibit: Provide Tee and Green Plans and Layout Details for the revision to Cimarron Golf Course Hole #5 Routing. The extra effort includes accommodating CVAG's request for CV Link,


57

preparing hole reconstruction layout including coordination with Earth Sculptures and CVAG, and conducting site visits.

• Billboard Relocation Field Survey: Provide staking and office survey services for the new right-of-way, edge of sign, and pole to ensure proper relocation of the Lamar billboard near the intersection of Ramon Road and Landau Boulevard.

Right of Way Appraisal Services: The following tasks are additional work required to complete the right of way services.

• Refinements During Appraisal Periods: Provide right of way services associated with appraisal coordination and management due to modifications made in the proposed temporary construction easement (TCE) boundaries of several parcels required as a result of design refinements occurring after the initial 'Notice to Appraise' letters have sent out. Such design modifications consisted of adjustments to tops and toes of slope of several parcels and modifications to the TCE along the Cimarron Golf Course to minimize disruption to adjacent greens. The adjustments in TCE and slope easement limits result in overall reduction in right of way costs.

• Golf Course I Billboard Coordination: Provide right of way services specifically associated with appraisal coordination and management due to the reconfiguration of Cimarron Golf Course Hole #5 and the services regarding confirming ownership of the property containing the billboard. Extra work includes appraising the value of golf course closure during reconstruction activities requires obtaining specific financial documentation from the owner; attending necessary meetings with Golf Course staff to complete the appraisal; regarding the billboard, conducting necessary coordination between Lamar and property owner to resolve ambiguities pertaining to the ownership of the land including performing additional communication, meetings, and research.

• Transfer Deeds from Palm Springs to Cathedral City: Palm Springs, as the lead agency, will be the grantee for all property acquisitions. After the project is complete, Palm Springs will deed the rights to Cathedral City. Consultant shall prepare the deeds and coordinate with Palm Springs to obtain signatures and coordinate with Cathedral City to obtain certificates of acceptance and record the deeds. This will impact 19 parcels.

Deliverables: Title Reports, Litigation Guarantees, Offer Packets, Escrow documents for voluntary acquisitions, Right-of-Way Certification approval

Task Assumptions: • Assumes 26 properties will be acquired. • Assumes 26 preliminary title reports will be obtained. • Assumes 4 litigation guarantees will be obtained. • Assumes no more than one (1) Indian allottee per BIA parcel. • Plat maps and legal descriptions will be provided in Task 1.1. • No Phase II Site Assessments are required. • Assumes acquisition services to be completed within one year from receipt of the

Notice to Proceed. Exhibit "A"

Page 28 of29

58

• Assumes one (1) right-of-way certification . • Relocation assumes three outdoor advertising signs and one billboard. • Assumes four owners will require Eminent Domain support. • Deposition, court testimony, expert witness and fees for valuation appraisals are

additional, to be compensated on a time and materials basis.

(Extra Work for Amendment No. 7) Right-of-way consultant shall prepare goodwill appraisals to evaluate the potential loss of business during the construction as directed by the City for the following properties:

• Chevron • Warrier Golf Course • Villa Bakery • U-Hall Moving and Self Storage • Palm Springs Lanes and Smoke Shop

The goodwill appraisal shall be used to support the right-of-way acquisition offer and negotiation with the property owners.

Oeliverables: Five Goodwill Appraisals

The right-of-way consultant shall provide additional negotiation effort for the seven private property owners, one DWA parcel and three BIA parcels that have no singed agreements as of 1 0/25/2018. The right-of-way consultant shall prepare documentation for the City to proceed with filing the Resolution of Necessity to protect the project's schedule, and shall provide the impasse letter for the parcels where eminent domain is needed and provide case files to the City for court procedures.

Deliverables: Right-of-way documents to support filing Resolution of Necessity and Eminent Domain

The right-of-way consultant shall order Litigation Guarantees to support the condemnation process for the seven private properties listed below that have not reached an acquisition agreement with the City as of 10/25/2018.

• Luis A. Avila Paz & Maria Avila • Luis A. Avila & Rosario Avila (Vil la Bakery) • 7 -Eleven Development Company, LLC. • Eighteen Sac Selg Storage Corp (U-Hall) • Warrier Golf Course • Marwan Jizrawi (Chevron) • Ramon Tower Business Park Inc. (Bowling Alley)

Deliverables: Seven Litigation Guarantees


59

Exhibit C

15 Revised: 1/31 /18

720669.1

60

EXHIBIT "C" SCHEDULE OF COMPENSATION

Tasks listed below are identical to tasks identified in Exhibit A of this Agreement. Payments to Contractor shall be made no more frequently than monthly, and shall be based on lump sum costs per task item of work as indicated herein. Lump sum payments shall be made to Contractor based upon completion of tasks, or pro-rata portions thereof noted below, to a maximum of 75% of the lump sum task item fee until completion of such task item as determined by the Contract Officer. Each request for payment shall contain Contractor's statement of the work or tasks completed or portion performed, with supporting documentation. The determination of payment due shall be made based upon the reasonable judgment of the Contract Officer.

Phase 1 - Project Approval and Environmental Document (PA&ED)

Task 1- Project Management Task 1.1, Project Administration and Project Controls Task 1.2, Meetings and Coordination Task 1.3, Quality Assurance and Quality Control Task 1.4, Local Assistance Funding/Programming Supports

Task 2- Preliminary Engineering Task 2.1, Data Collection and Research Task 2 .2. Field Review and Site Assessment Task 2.3, Surveying and Aerial Topographic Mapping Task 2.4, Right of Way Research and Base Mapping Task 2.5, Utility Research, Notification and Mapping Task 2.6, Traffic Study Task 2.7, Preliminary Roadway/Bridge Foundation Report Task 2.8, Roadway Alternatives Study and Geometric Approval Drawings Task 2.9, Preliminary Right of Way Study and Cost Estimates Task 2.1 0, Bridge Aesthetics and Approach Landscape Modification Study Task 2.11, Preliminary Street Lighting Study Task 2 .12, Roadway Drainage Study Task 2.13, Floodplain Study, Bridge Hydraulics and Sediment Transport Analyses Task 2.14. Preliminary Channel Improvement Plans Task 2.15, Conditional Letter of Map Revision (CLOMR) Task 2 .16, Bridge Type Selection Study Task 2 .17, Preliminary Cost Estimates Task 2.18, Project Report (Equivalent) Task 2.19, Value Analysis Study $19,861.70

Exhibit "C" Continues on Next Page

Exhibit "C" Page 1 of 4

Task Total Lump Sum

$ 114,434.93 $ 94,801.88 $ 34,754.94 $ 21,333.20

$ 18,913.72 $ 9,354.20 $ 34,617.46 $ 25,513.06 $ 13,776.37 $ 44,080.75 $ 29,612.51 $ 88,094.54 $ 30,585.21 $ 50,425.18 $ 4,695.82 $ 7,548.71 $ 45,355.12 $ 10,936.07 $ 10,592.08 $ 88,959.68 $ 17,279.81 $ 41 '191.36 $ 0.00

61

Task 3- Environmental Document (CEQAINEPA) Task 3.1, Public Scope, Commission & Council Meetings Task 3.2, Preliminary Environmental Study (PES) Task 3.3, Noise Study Task 3.4, Air Quality Study Task 3.5, Phase 1 Initial Site Assessment and ADL Surveys Task 3.6, Water Quality Assessment Report and Preliminary SWPPP Task 3.7, Location Hydraulic Study & Summary Floodplain Encroachment Report Task 3.8, Biological Resources Study (NES and BA) Task 3.9, Wetland and Jurisdictional Delineation and Assessment Task 3.10, Visual Impact Assessment Task 3.11, Community Impact Assessment Task 3.12, Cultural Resources Study (APE/HPSRIASR) Task 3.13, Draft NEPA Environmental Assessment Task 3.14, Draft CEQA Initial Study/Mitigated Negative Declaration Task 3.15, Bureau of Indian Affairs Consultation & NEPA/Section 106 Clearance Task 3.16 Circulate Draft Environmental Document & Respond Comments Task 3.17 Final Environmental Document (MND/FONSI) Task 3.18, File Notice of Determination (CEQA) Task 3.19, Publish Notice in Federal Register Task 3.20, USACE Section 404 Permit and NEPA Clearance I

USEPA & SWRCB Section 401 Water Quality Certification Task 3.21, CDFG 1602 Streambed Alteration Agreement

Reimbursable Expenses $35,858.00

Task Total Lump Sum

$ 4,639.62 $ 6,721.70 $ 32,437.36 $ 17,121.22 $ 15,129.12 $ 18,693.84 $ 8,029.35 $ 23,377.36 $ 5,762.43 $ 25,772.25 $ 6,563.22 $ 14,262.43 $ 25,930.48 $ 10,191.85 $ 4,907.39 $ 2,295.22 $ 3,388.18 $ 655.78 $ 1,136.68

$ 33,141.31 $ 7,257.25

$ 28,150.00

Phase I Sub-Total $1,159,990.31 $1,132,420.64

Exhibit "C" Continues on Next Page


62

Phase II - Plans, Specifications and Estimate (PS&E) Phase

Task 1- Project Management Task 1.1, Project Administration and Project Controls Task 1.2, Meetings and Coordination Task 1.3, Quality Assurance and Quality Control Task 1.4, Local Assistance Supports

Task 2- Final Design Reports and Studies Task 2.1, Utility Potholing Task 2.2, Geotechnical Investigations and Design Reports Task 2.3, Update SWPPP Task 2.4, Utility Relocation Coordination Task 2.5, Update Drainage Report Task 2.6, Update Topographic Field Survey Task 2.7, Value Analysis Study

Task 3- Plans, Specifications and Estimate (PS&E)

Civil Roadway PS&E Task 3.1, 65°/o Roadway Plans Task 3.2, 65°/o Storm Drain Plans and Erosion Control Plans Task 3.3, 65°/o Channel Improvements Plans Task 3.4, 65°/o Landscaping Plans Task 3.5, 65°/o Traffic Control Plans Task 3.6, 65°/o Signing and Striping Plans Task 3.7, 65°/o Traffic Signal Improvement Plans Task 3.8, 65°/o Bridge Mounted Lighting Plans Task 3.9, 95°/o Civil Roadway PS&E

Structure PS&E Task 3.1 0, 65% Unchecked Structure Plans Task 3.11, Bridge Design Independent Check Task 3.12, 95°/o Structure PS&E Task 3.13, Final1 00% Design PS&E & Contract Bid Documents

Task 4 Environmental Permitting Task 4.1, Habitat Mitigation and Monitoring Plan Task 4.2, CEQA Exemption & NEPA Caltrans Revalidation

Reimbursable Expenses

Phase II Sub-Total

Exhibit "C" Page 3 of4

$ ~ Hi,Q44.39 $ ~ ~3,Q4~.37

$ B1,994.QQ

$ ~~6,9§1.~Q

$ 4§,§3B.QQ

$~ ,7~8,838.~4

Task Total Lump Sum

$ 121,822.49 $ 121,174.19 $ 37,087.81 $ 16,149.63

$ 29,470.26 $ 44,897.86 $ 6,080.52 $ 92,015.05 $ 6,564.10 $ 66,192.23 $ 77,679.26

$ 101,905.67 $ 39,475.47 $ 30,166.76 $ 21,777.72 $ 25,388.06 $ 17,758.96 $ 16,211.41 $ 6,583.34 $ 192,901.18

$ 280,459.64 $ 89,345.23 $ 94,295.16 $ 236,044.21

$ 12,977.47 $ 9,679.80

$ 50,593.50

$1 ,844,696.99

63

Phase Ill - Right of Way Phase

Task 1 Right of Way Services Task 1.1, Legal Descriptions and Plats $ 85,172.75 $ 93,409.55 Task 1.2, Right-of-Way Appraisals, Acquisition and Certification $ 258,230.4& $ 332,065.05

Phase Ill Sub-Total $ 343,403.21 $ 425,474.60

Grand Total $3,232,231.75 $ 3,402.592.23

END OF EXHIBIT "C"


64

City Council Regular Meeting 1.E. Meeting Date: 11/28/2018

SubjectACCEPTANCE OF THE AIRPORT TICKETING RENOVATION PROJECT ENABLINGPHASE 1, CP 18-02:RECOMMENDATION:

Accept the public works improvement identified as the Airport Ticketing RenovationProject Enabling Phase 1, as completed in accordance with the plans and specifications,CP 18-02.

1.

Authorize the City Engineer to execute and file for recordation with the RiversideCounty Recorder a Notice of Completion for the Airport Ticketing RenovationProject Enabling Phase 1, CP 18-02.

2.

Attachments1E Accept Airport Ticketing Reno Project

City Council Staff Report Date: November 28, 2018 CONSENT CALENDAR

Subject: ACCEPTANCE OF THE AIRPORT TICKETING RENOVATION PROJECT ENABLING PHASE 1, CITY PROJECT NO. 18-02

From: David H. Ready, City Manager

Initiated by: Aviation Department

SUMMARY

This action will provide acceptance of the Palm Springs International Airport Ticketing Renovation Project Enabling Phase 1, City Project No. 18-02 documents and allows the City's filing of a Notice of Completion with the Riverside County Recorder in accordance with Section 9200 of the California Civil Code.

RECOMMENDATION:

1) Accept the public works improvement identified as the Airport Ticketing Renovation Project Enabling Phase 1 City Project No. 18-02, as completed in accordance with the plans and specifications; and

2) Authorize the City Engineer to execute and file for recordation with the Riverside County Recorder a Notice of Completion for the Airport Ticketing Renovat ion Project Enabling Phase 1, City Project 18-02.

BACKGROUND:

On December 13, 2017, the City Council awarded a construction contract to Caltec Corporation following a re-bid for the Airport Ticketing Renovation Project Enabling Phase 1 that was advertised under IFB 18-02 (Attachment 1 ).

The scope of this Enabling Project, known as Phase I of the larger Airport Ticketing Renovation Project, consisted of constructing numerous offices within vacant open space under the Airport's Bono Concourse. These offices will be required during and after the major Airport Ticketing Renovation Project scheduled to commence and be completed in spring through fall of 2020.

!TEM No._ 1 .E.

City Council Staff Report November 28, 2018 Acceptance of City Project No. 18-02 - Airport Ticket Hall Expansion Enabling Project

ANALYSIS:

The Enabling Project was carried out well and did not impede the operation of the Airport. There were a number of Change Orders during the project that addressed several late airline requests for modifications and to address unforeseen conditions.

As a result of all Change Orders, the Total Closeout Contract Amount will increase by $129,771.09, which is 9.76°/o above the original awarded contract amount of $1 ,330,000.00. The City Council's award of a contract included a delegated authority to the City Manager to approve Change Orders in the total cumulative amount of $133,000.

Base Contract Amount $1,330,000.00 Change Orders $ 129,771.09 Total Closeout Contract Amount $1,459,771.09

As indicated in the Fiscal Impact section of this report, this Project is being financed largely with FAA Airport Improvement Program (AlP) Grant funding which permits up to 15°/o increase in change orders.

As determined by City's contracted Construction Management firm URS, the project was substantially completed and the Contractor satisfactorily finished the Project in accordance with the specifications on September 11, 2018. Staff recommends that City Council accept the Project, as required by Section 9200 of the California Civil Code, and authorize the City Engineer to file and record a Notice of Completion within 15 days of the City Council's action. A copy of the Notice of Completion to be submitted to the County is included as Attachment 2.


Section 21084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act ("CEQA"). The Master Plan Update for the Palm Springs International Airport ("Master Plan") is considered a "Project", and in accordance with the CEQA Guidelines, the City acting as "Lead Agency" pursuant to CEQA, previously completed an environmental analysis of the potential impacts resulting from implementation of the Master Plan. A Notice of Intent to Adopt a Mitigated Negative Declaration ("MND") was previously filed, and on October 21, 2015, the City Council held a public hearing, and independently reviewed and considered the information contained in the MND prior to its review and approval of the Master Plan, and adopted Resolution No. 23908, adopting and ordering the filing of a Mitigated Negative Declaration for the Master Plan. As this capital project implementation was approved in the Master Plan, no further environmental analysis pursuant to CEQA is necessary.

2

City Council Staff Report November 28, 2018 Acceptance of City Project No. 18-02 - Airport Ticket Hall Expansion Enabling Project

FISCAL IMPACT:

On July 19, 2017, the City Council authorized the City Manager to accept FAA Airport Improvement Grant AlP 3-06-0181-055-2017 for partial funding of three airport capital projects, to include the Ticket Hall Expansion Enabling Project. The AlP Grant will cover 90.66°/o of the total project cost, including all change orders. The remaining percentage is considered a local match and will be paid from the City's Airport Fund.

Sufficient funds are budgeted and available in the Airport Capital Improvement Fund, Accounts 416-6401-56186 and 416-6601-56186.

Table 1 below is a summary of the total costs incurred for the Project.

Phase Final Cost

Design & Construction Administration $145,720.00 Construction Management $148,313.00 Construction Contract $ 1 ,330,000.00 Contract Change Orders $ 129,771.09

Total Cost $ 1 '753,804.09 Table 1

The Project was funded through the following sources as shown in Table 2:

Fund Name Account Actual AlP 3-06-0181-055-2017 Capital Projects 416-6401-56186 $163,854.95 Capital Projects 416-6601-56186 $1,589,949.14

Total Expenditures for Project $1,753,804.09 Project Budget $1,753,804.09 Remaining Balance -0-

Table 2

The City is holding five percent retention for Caltec Corporation, pending acceptance of the improvements and filing of the Notice of Completion with the County Recorder's office.

3

City Counci l Staff Report November 28, 2018 Acceptance of City Project No. 18-02- Airport T icket Hall Expansion Enabling Project

~ Marcus L. Fuller, MPA, P.E., P.L.S. Assistant City Manager

David H. Ready, Esq ., Ph.D. City Manager

Attachments:

Thomas Nolan, AAE Executive Director of Aviation

1. City Counci l Staff Report- December 13, 2017 2. Notice of Completion

4

Attachment 1

5

Date:

Subject:

From:

CITY COUNCIL STAFF REPORT December 13, 2017 NEW BUSINESS

AWARD A CONSTRUCTION CONTRACT TO CALTEC CORP, A CALIFORNIA CORPORATION, IN THE AMOUNT OF $1,330,000 FOR THE AIRPORT TICKETING HALL EXPANSION ENABLING PROJECT (IFB 18-02)

David H. Ready, City Manager

Initiated By: Department of Aviation

SUMMARY

Award of this contract to Caltec Corp, a California corporation, will allow the City to proceed with construction of the Ticketing Hall Expansion Enabling Project, IFB No. 18-02.

RECOMMENDATION:

1. Award a construction contract to Caltec Corp, a California corporation, as the lowest responsive and responsible bidder for the Ticketing Hall Expansion Enabling Project, IFB 18-02, inclusive of the base bid amount of $1 ,200,000 and Alternate 2 bid amount of $130,000 for a total contract amount of $1 ,330,000;

2. Delegate authority to the City Manager to approve Contract Change Orders in the total cumulative amount of 1 0°/o of the contract amount ($133,000);

3. Authorize the City Manager to execute all documents.


A search of records available through the Secretary of State of California shows that as of April 25, 2007, Caltec Corp was a California corporation with the following corporate officer: Hamid Abghari (CEO/Secretary/CFO), with Hamid Abghari listed as the single Director.

ITEM NO. s. D.

6

City Council Staff Report December 13, 2017 --Page 2 Award of Contract -IFB 18-02 Ticketing Hall Expansion Enabling Project

STAFF ANALYSIS:

On July 19, 2017, the City Council authorized the City Manager to award construction contracts for the Taxiway J Pavement Reconstruction, Airfield Lighting Project, and the Terminal Remodel Enabling Construction Projects. A copy of the July 19, 2017, staff report is included as Attachment 1.

The bid opening for the Ticketing Remodel Enabling Projects, IFB No. · 18-01, was conducted on August 22, 2017. On September 6, 2017, staff reported receipt of two bids as follows: 1. Suffolk-Nibbi 2. Caltec Corp.

$1,576,318 $2,422,385

Staff recommended and the City Council rejected all bids and authorized staff to re-bid on the basis that the low bidder, Suffolk-Nibbi, was deemed non-responsive due to nonconformance with the general contractors 51 °/o self-performance obligation - the submitted bid document identified that Suffolk-Nibbi would only self-perform 10.01 °/o of the total work. The remaining bid submitted by Caltec Corp. was substantially higher than the Engineer's estimate, and exceeded the FAA Grant funding received.

The project was advertised again as a new Invitation for Bids (IFB) 18-02, and bids were received on October 24, 2017, with the following results:

Base bid Bid Alternate 1 Bid Alternate 2 Total Bid

Caltec Corp $1,200,000.00

$850,000.00 $130,000.00

$2,180,000.00

Future DB International $1 ,449,000.00

$788,000.00 $200,000.00

$2,437,000.00

Macon Engineering• $1,858,888.00

$668,888.00 $62,288.00

$2,590,064.00

Design Engineers WSP- estimate

$1,100,000.00 $300,000.00 $1 00,000.00

$1 ,500,000.00

*The bid submitted by Macron Engineering was deemed non-responsive to the contract documents for failure to provide full information related to Small Business Enterprises and failure to fully complete the list of subcontractors.

The City's Airport Engineer for this project, WSP USA, reviewed the submitted bids for compliance with the contract documents, and provided a written recommendation that the City Council find the low bid submitted by Caltec Corp as responsive, and proceed with award of the base bid and Bid Alternate 2 (technology equipment), and excluding Bid Alternate 1 (a temporary modular building at a cost of $850,000), for a total contract amount of $1,330,000. The recommendation is to include the installation of the temporary modular building as part of the larger Airport Ticketing Wing Expansion Project, where the City will likely see cost savings due to an economy of scale associated with the $26 million total cost of the Airport Ticketing Wing Expansion Project. A copy of the written recommendation provided by WSP USA is included as Attachment 2.

02

7

City Council Staff Report December 13, 2017 --Page 3 Award of Contract -IFB 18-02 Ticketing Hall Expansion Enabling Project

Public Works Contractor Registration Law (SB 854)

Under California Labor Code Section 1771.1, as amended by Senate Bill (SB) 854 (2014), unless registered with the State of California Department of Industrial Relations (DIR), a contractor may not bid, nor be listed as a subcontractor, for any bid proposal submitted for public works projects on or after March 1, 2015. Similarly, a public entity cannot award a public works contract to a non-registered contractor, effective April 1, 2015. Staff has reviewed the DIR's contractor registration database, and has confirmed that Caltec Corp and its listed subcontractors are registered with the Dl R, and are appropriately licensed.

Caltec Corp. of Westminster, California submitted the lowest responsive bid. Staff reviewed the bid, references, and contractor's license, and found the Contractor to be properly licensed and qualified. A construction contract with Caltec Corp. for the Project is included as Attachment 3.


Section 21 084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act ("CEQA"). The Master Plan Update for the Palm Springs International Airport ("Master Plan") is considered a "Project", and in accordance with the CEQA Guidelines, the City acting as "Lead AgencyJI pursuant to CEQA, previously completed an environmental analysis of the potential impacts resulting from implementation of the Master Plan. A Notice of Intent to Adopt a Mitigated Negative Declaration ("MND") was previously filed, and on October 21, 2015, the City Council held a public hearing, and independently reviewed and considered the information contained in the MND prior to its review and approval of the Master Plan, and adopted Resolution No. 23908, adopting and ordering the filing of a Mitigated Negative Declaration for the Master Plan. As this capital project implementation was approved in the Master Plan, no further environmental analysis pursuant to CEQA is necessary.

FISCAL IMPACT:

The total construction cost for the lowest responsive bidder is $2,180,000. This amount exceeds the Engineers' estimate by $680,000. It is recommended that the City Council exclude Bid Alternate 1 in the amount of $850,000 for the temporary modular building from the contract amount, for a total contract amount of $1,330,000. The contract will be funded at 90°/o (or $1,197,000) with federal funds through the FAA Airport Improvement Grant AlP 3-06-0181-055-2017, requiring a 10°/o local match of $133,000 with the City's airport funds.

Sufficient funding is budgeted and available in the Airport Capital Improvement Fund, Accounts 416-6401-56186 and 416-6601-56186.

I • 0 3

8

City Council Staff Report December 13.2017-- Page 4 Award of Contract - IFB 18-02 Ticketing Hall Expansion Enabling Project

No local General Fund or Measure J Capital Funds are used in delivery of these Airport capital projects.

susMITTE~L

~~ Marcus L. Fuller, MPA, P.E., P.L.S. Assistant City Manager

David H. Ready, Esq., P City Manager

Attachments: A. July 19, 2017, staff report B. WSP Engineers recommendation letter C. Contract

T~ Executive Director, Airport

.. .. 04

9

Attachment A

• ..: . 05

10

CITY COUNCIL STAFF REPORT July 19, 2017 CONSENT CALENDAR

Subject: DELEGATION OF AUTHORITY TO AWARD CONSTRUCTION BIDS AND ACCEPT FAA AIRPORT IMPROVEMENT GRANT AlP 3-06-0181-055-2017 FOR THE TAXIWAY J PAVEMENT RECONSTRUCTION PROJECT (JFB 17-06). AIRFIELD LIGHTING PROJECTS (IFB 17-07). AND TICKETING REMODEL ENABLING PROJECTS (IFB 18-01)


Initiated by: Department of Aviation

SUMMARY

The City Council has previously authorized the Department of Aviation to proceed with construction bidding on three capital projects. The bid opening of two of these projects is July 19, and the bid opening of the third project is August 15. In order to avoid delay during the Council's August recess. this action will delegate authority to the City Manager to award construction contracts of these three projects to the lowest responsive and responsible bidder, and to accept the FAA Project Funding Grant providing federal funding of 90% of the contract amounts.

RECOMMENDATION:

1. Authorize the City Manager to award a construction contract to the lowest responsive and responsible bidder for the Taxiway J Pavement Reconstruction Project, lFB No. 17-06, subject to reporting and ratification by the City Council at the September 6, 2017, meeting:

2. Authorize the City Manager to award a construction contract to the lowest responsive and responsible bidder for the Airfield Lighting Project. IFB No. 17-07, subject to reporting and ratification by the City Council at the September 6, 2017, meeting;

3. Authorize the City Manager to award a construction contract to the lowest responsive and responsible bidder for the Ticketing Remodel Enabling Projects, IFB No. 18-01, subject to reporting and ratification by the City Council at the September 6, 2017, meeting;

ITEM NO. i.E . 06

11

City CouncJI Staff Report July 19, 2017- Page 2 Airport Capital Projects

4. Authorize the City Manager to accept FAA Airport Improvement Grant AlP 3-06-0181-055-2017 for the Taxiway J Pavement Reconstruction Project, IFB No. 17-06, Airfield Lighting Project, IFB No. 17·07, and Ticketing RemOdel Enabling Projects. IFB No. 18-01, in an amount including the total cost of the awarded contracts and associated construction management services;

5. Delegate authority to the City Manager to approve and execute construction contract change orders up to a cumulative amount of 1 Oo/o of the contract amounts, with all change orders reported to the City Council;

6. Authorize the City Manager to approve amendments to the FAA Airport Improvement Grant AlP 3-06-0181-Q55-2017 for the Taxiway J Pavement Reconstruction Project, IFB No. 17-06, Airfield Lighting Project, IFB No. 17-07, and Ticketing Remodel Enabling Projects, IFB No. 18-01, as necessary to increase the total amount of the grant to accommodate approved construction contract change orders; and

7. Authorize the City Manager to execute all necessary documents.

STAFF ANALYSIS:

On August 3, 2016, the City Council accepted Federal Aviation Administration AlP Grant No. 3-06-0181-054-2016 in the amount of $2,554,343.69 and approved Amendment No. 6 to Agreement No. 6256 with Parsons Brinckerhoff, Inc., for design services related to three airport projects: Ticketing Remodel Enable Projects, Taxiway J Pavement Rehabilitation, and Airfield Electrical Replacement.

Subsequently, Parsons Brinckerhoff, Inc., completed the plans and specifications for these three capital projects, and on April 19, 2017, the City Council approved the plans and specifications. and authorized staff to proceed with bidding of the Taxiway J Pavement Rehabilitation, and Airfield Electrical Replacement.

On May 3, 2017, the City Council approved the plans and specifications, and authorized staff to proceed with bidding of the Ticketing Remodel Enable Projects. It should be noted that at that time the Council only approved the schematic design for the larger Terminal Ticketing Wing Remodel Project, and final design for that project will be presented to Council for approval later this year. It is only the enabling projects (i.e. build-out of airport operations space underneath the Bono Concourse, and installation of a temporary modular building for TSA operations) that Council authorized for bidding, which with this action Council will authorize award.

A copy of the April 1 9 and May 3, 2017, staff reports are included as Attachment 1.

The bid opening for the Taxiway J Pavement Reconstruction Project, IFB No. 17-06, and Airfield Lighting Project. IFB No. 17-07, is scheduled for July 19, 2017. The bid

.07

12

City Council Staff Report July 19, 2017- Page 3 Airport Capital Projects

opening for the Ticketing Remodel Enabling Projects, IFB No. 18-01, is scheduled for August 15, 2017.

Staff is requesting that the Council delegate authority to the City Manager to award construction contracts for these three airport capital projects during the Council's August recess. subject to reporting and ratification by the Council at its September 6, 2017, meeting. This action will allow staff to proceed with these projects, without delay, and more importantly. to coordinate with the FAA on the associated FAA Airport Improvement Grant AlP 3-06-0181-055-2017 that must be accepted by the City and executed by FAA prior to September 30, 2017, in order to secure the 90o/o FAA funding.


Section 21084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act ("CEQA "}. The Master Plan Update for the Palm Springs International Airport {''Master Plan") is considered a "Project.,, and in accordance with the CEQA Guidelines, the City acting as "Lead Agency" pursuant to CEQA, previously completed an environmental analysis of the potential impacts resulting from implementation of the Master Plan. A Notice of Intent to Adopt a Mitigated Negative Declaration f'MND") was previously filed, and on October 21, 2015. the City Council held a public hearing, and jndependently reviewed and considered the information contained in the MND prior to its review and approval of the Master Plan, and adopted Resolution No. 23908, adopting and ordering the filing of a Mitigated Negative Declaration for the Master Plan.

As these capital projects implement the Master Plan, no further environmental analysis pursuant to CEQA is necessary.

FISCAL IMPACT:

The estimated cost of the three airport capital projects is as follows:

Taxiway J Pavement Reconstruction Project, IFB No. 17-06: Airtield Lighting Project, IFB No. 17-07: Ticketing Remodel Enabling Projects, IFB No. 18-01:

$ 250,000 $2,200,000 $1,500.000 $3,950,000

As part of a separate action, the Council will consider approving Amendment No. 4 to Agreement No. 6629 with URS Corp., in the amount of $476,871, to provide construction management services associated with these three capital projects.

The total construction cost is estimated at $3,950,000 with an additional $476,871 for construction management services, for a total cost of $4,426,871.

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13

City Council Staff Report July 19, 2017- Page 4 Airport Capital Projects

These airport capital projects will be funded with 90% federal funds via FAA Airport Improvement Grant AlP 3-06-0181-055-2017, requiring a 10°10 local match with the City's airport funds.

Sufficient funding is budgeted and available in the Airport Capital Improvement Fund, Accounts 416-6401-56186 and 416-6601-56186.

No local General Fund or Measure J Capital Funds are used in delivery of these Airport capital projects.

SUBMITTED~

~ -Marcus L. Fuller, MPA, P.E .• P.L.S. Thomas Nolan Assistant City Manager Executive Director, Airport

~~~ David H. Readi.ESQO City Manager

Attachments: 1. April 19 and May 3, 2017, staff reports

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14

Attachment 1

15

CITY COUNCIL STAFF REPORT DATE: April 19, 2017 CONSENT AGENDA

SUBJECT: AIRPORT TAXrNAY J PAVEMENT REHABILITATION AND ELECTRICAL SYSTEMS REPLACEMENT PROJECTS BID SOLICITATION APPROVAL AND FAA GRANT FUNDING ACCEPTANCE

FROM:

BY~


AIRPORT

SUMMARY

This action would approve the Plans and Speciftcations for the Palm Springs International Airport's Taxiway J Pavement Rehabilitation and Electrical Systems Projects, and approve acceptance of the FAA Grant to fund the projects.

RECOMMENDATION:

1. Approve the plans and specifications for the Palm Springs International Airport Taxiway J Pavement Rehabilitatlon and Electrical Systems Replacement Proje<:ts.

2. Authorize the acceptance of FAA Grant AJP No. 55 in an amount of up to $2.500.000 for the construction of both projects and the associated construction management professional services.

3. Authorize the City Manager to advertise and solicit bids.

STAFF ANALYSIS:

An FAA Grant No. 54 was previously approved by City Council on August 3. 2016, for the purpose of designing two airfield systems rehabilftation projects for Palm Springs International Airport. The design is now completed and the projects are ready to proceed with the bid phase. Theae projects address two separate PSP Airport airfield components as follows:

IT'=M NO.__,;\~"~-11 16

City Council Staff Report April19. 2017- Page 2 Airport Taxiway J Pavement Rehabilitation and Electrical Systems Replacement Projects Bid Solicitation Approval and FAA Grant Funding Acceptance

Airfield Electrical Systems Project

Rehabilitation of the airfield ground navigation aids, including directional signage used by all aircraft when taxiing to and from the runways. 222,000 lineal feet of existing airfield electrical conductors to all taxiway and runway lights. signs and navaids. with the exception of Runway 13R-31 L that was reconstructed in 2016. will replace old system components. The airport's electrical vault will have key components, including all existing constant current regulators, replaced with new state-of-the-art equipment capable of self-diagnosis. Elec1rical transformers on all existing LED Taxiway fixtures. 851 in total, along with 130 existing incandescent lights in directional signage will be replaced; the airport's secondary runway will be upgraded with new medium intensity LED light fix1ures as will the associated approach navigational a ids of Runway End Indicator Lights (REILS) and Precision Approach Path Indicators (PAPIS}.

The project is allotted 120 calendar days for completion and will be closely coordinated to ensure the airport remains open. safe and functional for all types of aircraft operations.

PALM SPRINGS INTERNATIONAL AIRPORT AIRFIELD ELECTRJCAL AND TAXIWAY J REHABJLITATION

LEGE)iD

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• IA.'(t'tlrl'\f t P,1,\1.~1UXVl'l tf\n'J"r4

• .UUUlDtlt.<l'a.K4L\M.l1\~~

12

17

CHy Counal Staff Report Aprit19, 2017- Page 2 Airport Taxrway J Pavement Rehabilitation and EleCtrical Systems Replacemen1 Projects Bid SoliCitation Approval and FAA Grant Funding Acceptance

Airfield Taxiway J Project

This project is a rehabilitation of the airfield asphalt pavement on Taxiway J between Taxiway C and Runway 13L The existing asphalt will be removed and reconstructed with new FAA approved materials constructed in accordance with the Standards for Construction of Airfield Pavement. The project's duration is scheduled for 30 calendar days.

FISCAL IMPACT:

The Taxiway J project's estimated cost prior to bid is $214.430, and the Airfield Electrical is $2,027,356. Both projects are eligible for and will be funded by Federal Aviation Administration Airport Improvement Grant No. 55. The City's Airport Fund will be responsible for providing the ten percent matching share of the grant at about $250,000 taken from budgeted Account No. 416-6401-56186.

Although the FAA grant has not been received as of the date of this Staff Report, these projects ha\le been approved and fiscally programmed by the FAA, and are anticipated in June. Council approval for acceptance of the grant is requested ahead of that schedule to facilitate the project's construction.

Attachments: Invitation for Bids

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CITY OF PAlM SPRINGS, CALIFORN'A NOTICE INVITING BfD8 FOR

TAXIWAY 'J' REHABILITATION PROJECT

PALM SPRINGS INTERNATIONAL AIRPORT FAA AIRPORT IMPROVEMENT PROJECT NO. 3-06-0181..055-2D16

INVITAnON FOR BIDS (IFB) 17-xx

Nonce IS HEREBY GlVEN that seaJed bids wil be received at the Office d the Procurement and ContJacti'lg Manager of the City of Palm Springs, Caifomia, 3200 East TahQuitz Canyon Way, Palm Spmgs, California 92262 until, ___, toc:al time on at which time they wtl be opened and read aloUd. Bids must be submitted in sealed ~mar1<edontheoutSde: "TAXIWAY 'J' REHABILITATION PROJECT"~

DELIVERY OF BIDS ·NOTIFICATION OF PARKING LOT CONSTRUCTION AT CITY HALL .. Contractors are hereby notif.ad that there wid be construction in progress at the Palm Springs City Hall parking lot on the day that Bids are doe. Contractors shall take this into account fn the delivery of their bids, as neither the City r.or the ptu'king lot contractor shall be liable or responsible for the late delivel)' of a bid due to the construction in progress at City Hall. It is the responsibility of the contractor to see that any bid that is hand delivered, sent through the mail. or by any other delivery method, shall have sufficient tim& to be received by the Office of Procurement & Contracting by the due date and time. Lata bids will not be accepted and shall be returned unopened.

LOCATION OF WORK- The Wol'k to be performed het"eUnder is locate(i at the Palm Springs lntem~rlill Aiport. 3400E. TahquilzCanyonWayl Palm Springs. California.

DESCRIPTION OF THE WORK; The Project consists of the Removal and Reconslruction of approximately 12,000 sf of failed Asphalt Pavement within the limits of Taxiway J. Construction will consist of full depth removal of existing Asphalt Pavements, re-compaction of existing base materials and construction of new Asphalt Cement Pavement Pro~ct includes repainting runway and taxiway markings. The Project wiH require temporary ck>sures to Runway 13L- 31 Rand Taxiway J and Taxiway E. No electrical work is anticipated.

The Engineer's Estimate falls within a range of $200,000 to $250,000

The City has not yet received FAA grant funding. Ho.vever, a pre-application has been made and there is sufficient Airport Improvement Program entitlement funding allocated for this project. but the FAA wiR not issue final grant offer without final bid price amount.

OBTAINING OR INSPECTING CONTRACT DOCUMENTS~ A complete set of Contract Documents dated March 17, 2017 may be obtained on, or after at Planit Reprographics, n738 Flora Road, Palm Desert, California 92211, phone (760) 345-2500, tax (760) 345-2599 for a nonrefundable deposit of $400.00 fer each hardcopy set « $200.00 for each CD. Shipping costs are extra. Checks to be made payable to Pfanit Reprographics. A copy of the ~fanholder's list may be obtained by contacHng Planlt :Reprographics directly. Contact person: Eric a;rch Email: [email protected]

Bidder must supply all information required by the complete bid documents and specifications.

PROJECT ADVERn8EMENT .. The project was advertised for bid---

PRE-BID CONFERENCE AND VISrT TO WORK SITE· AU Werested bidders ate encouraged to attend a PreBid Collferenoe i!nd examine the site to beeome familiar with the site conditions. The NON-MANDATORY Pre Bid Confetence wfll be held at~ local time. on at the Palm Springs lntemational Airport, 3400 e. Tahquftz Canyon way. Palm Springs. Califomia, in the 2i'ld Floor Conference Room. A tour of the site will occur for interes1Bd bidders. immediatdy following lhe conclusion of the Pre Bid Conference. For safety and security reasons, bidders are limied to 2 representatives on the site tour.

CORIFLE110NOFWORK-Time Is of the essence. All field work must be completed within 30 consecutive calendar days after commencement date stated in the Notice to Proceed.

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AWARD OF CONTRACT· The contract will be awarded to the lowest responsible bidder. The City reserves the right, after opening, to rejeet any and all bids, or to waive any minor informality in a bid. The award of the contract is subject to the approval of the Federal Aviation Administration.

As a condition of award. the successful bidder will be re~uited to submit bonds and insurance, prior to the execution of the contract by the City. Failure to meet this requirement shall constitute abandonme11l of the Bid by the Bidder and forfeiture of the Bid Bond. If this occurs the contract win then be awarded to the next lowest bidder.

BID SECURJ'IY - Each bid shall be accompartled by either cash, certified cashier's check or Bid Bond in the amount of ten (10) percent of the total bid prloe (all schedules, as applicable), payable to the City of Palm Springs, as a guarantee that the Bidder, if its Bid IS accepted, will promptly obtain the reQuired Bortds and Insurance and wm prepare the required submittal document and execute the Agreement.

BIJS TO REMAIN OPEN ·The Bklder shaY guarantee the Tolal Bid Prie:e fer a period of rlinety (90) calendar days from the date of Bid Opening.

CONTRACTOR'S LICENSE CLASSIFICATION- ln accordance with the provisions of California Public COntract Code Section 3300, the City has detennined 1hat the COntractor Shall possess a valid Class A Contrador License at the time the Cootraa is BWM:Ied. Failure to possess the specified license shall render the bid as n01He$ponsive and shaD act as a bat to award of the Contract to any bidder not possessing said lcense at the time of award.

The Contractor mU$t be licensed to do bUsiness i1 the Cty of Palm Springs in accordance with the provisions of Chapter 9, Division 3. of the Business and Professions Code, and wil be reQuired to obtain a City Consbuctlon Permit No Fee from the Building Department andlor the Public Wor1<s Inspection &Jpervisor, City Hall. Palm Springs. California.

STATEMENT OF QUALIFICATIONS- Each proposal must be accompanied by a statement of the biddets qualifications to perform the wctk contempJatect. The Statement r:J Qualifications shall be prepared on the fotm attached hereto.

CONTRACTORS REGISTRATION REQUIREMENTS· M a condition of award or after April1, 2016, the contractor and any subc:onttactor listed on the bid must be registered with the Department of lndLJSbial Relations pursuant to Section 1725.5 of the California Labor Code."

WAGE RATE REQUIREMENTS-(a) ~ • In accordance with the provisions of California Labor Code Sec1ion 1770, 1 n3,

1n3.1,1773.6 and 1n3.7, as amended, the Director of the Department of Industrial Relations has determined the general prevailing rate of per diem wages in accordance with the standards set forth in Section 1773 for the locality In which the Work is to be performed. A copy of said wage rates is on file at the Department of Building and Safety, City Hal&. Palm Springs, California It shaD be mandatory upon the CcntJattor to whom the Work is awarded and upon any subcontractor under the Contractor lo pay not less than said specified rates to alt workers employed by them In the execution of the Work, and shall post a copy of said wage rates at the project site.

(b) . EJK!mH- The general prevaifing rate of wages, CIS determined by the Secretary of Labor are included heremafter as part of the Contract Documents: ptOYkled. that if there Is any difference betWeen the State or Federal wage rate for any given craft or mechanic needed to exacule the WOtk. it shag be m~atory upon the Contractor and any subcontractor to pay the higher of the two rates.

All labor on the project shaU be paid no less than ttle minimum wage rates established by lhe U.S. SecretaJy of Labor.

TRADE RESlRicnONS- All solicitations, contracts end subcontracts resulting from projects funded under the Airport Improvement Program (AlP) must contain the foreign trade restriction required by 49 CFR Part 30, Denial of Public WorkS Contracts to SuppiCer& of Good~ and Services of Countries That Deny Procurement Market Access to U. S. Contractors.

The Aviation Safety and Capacity Expansion Act of 1990 provides that preference be given to steel and manufactured proc1«Jcts produced in the United States when funds are expended pui'$Uant to a gra11t issued under 1he Airport Improvement Program.

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20

EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION REQUIREMENTS- Each bidder mu&t complete, sign and furnish,. prior to awam of the contract, the "Bidders Statement an Previous Contracts SUbject to EEO Clause", a "Certification of Nonsegregated FacHities", and the '"Assurance of Disadvantaged Business Enterprise Participation'' as contained in the Bid Proposal These items must be submitted with his or her bid.

A Contractor having 50 or more employees and his or her subcontractors having 50 or more employee$ and wtlo may be awarded a contract of $50,000 or more will be required to maintain an affirmative action program, the standards for which are contained in these specifications.

The proposed contract is under and sub;ect to Executive Order 11246, as amended, of September 24, 1965, and to the Equal Employment Opportunity (EEO) and Federal labor Provisions.

The EEO requirements, labor provisions, and wage rates are induded in the specifications and bid documents and are available for lns~n at the Department of Building and Safety, City Halt, Palm Springs, california.

To be eligible for award, each bidder must comply with the affirmative action requirements which are contained in the specificat]ons.

Disadvantaged Business Enterprises (DBEs) as d~fined in 49 CFR Part 26 shall have the maximum opportunity to partJcipate in the perfonnance of contracts onder this agreement. Consequently, the DBE requirements or 49 CFR Part 26 apply to this agreement.

Women \11111 be afforded equal opportunity in all areas of employment. However, the employment of women shall not diminish the standards of requirement for the employment of minorities.

RETA!NAGE FROM PAYMENT- The Contractor may elect to receive 100 percent payments due under 1he Contract Documents from time to time. without retention of any portion of the payment by the City, by depositing securities of equivalent value with the City in accordance With the provisions of Section 22300 of the Pubftc Contract Code. Such securities. if deposited by the Contractor, shall be valued by the C;ty, whose decision on valuation of lhe securities shall be final. Securities eligible for investment under ttlis provision shall be limited to those listed in Section 6430 of the Govemment Code or bank or savings and loan certifiCates of deposit.

ADDRESS AND MARKING OF BIDS -The envelope enclosing the Bid shaD be sealed and addressed to the City or Palm Springs, and shall be delivered or mailed to Craig L. Gladders, C. P.M., Procurement and Contracting Manager, at 3200 East Tahquitz Canyon Way, ~1m Springs, CA 92262. The envelope shall be plainly marked In the upper left hand comet with the name and address <Jf the Bidder and shall bear the words •TN<IWAY J REHABILITATION PROJECT" for the •PALM SPRINGS INTERNATIONAL AIRPORT'', fOllowed by the date and hour of opening Bids. The certified or cashier's check or Bid Bond shall be enclosed in the same envelope with the Bid.

PROJECT ADMINISTRATION ·All communicatiOns relative to this Work shall be directed to Mr. Curt Ingraham. P.E., Parsons Brinckerhoff, 451 E. Vanderbilt Way, Suite 200, San Bernardino, CA 92408, phone (909) 888-1106, tax (909) 889-1884, {e-mail) [email protected] All questions relating to interpretation of the Contract Documents or products must be submitted in writing. ten days prior to bid opening, and any responses will be In the form of written addenda to the Documents.

BY ORDER OF THE QlY OF PALM SPRINGS, CA

DATE: Matttl28. 2017

By: _______ _

Craig L. Gladders, C.P.M Procurement and Contracting Manager

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CITY OF PALM SPRiNGS, CALIFORNIA NOTICE INVmNG BIDS FOR

AIRAELD LIGHTING PROJECT

PALM SPRINGS INTERNATIONAL AIRPORT FAA AIRPORT IMPROVEMENT PROJECT NO. 3-06-0181-05$.2018

INVITATION FOR BIDS (lFB) 17-xJt

NOnCE IS HEREBY GNEN that sealed bids wil be received at the OftX:e of the Procurement and Contracting M~er of lhe City d Paim Springs, Cslifomia, 3200 EMt T&lquitZ canyon Way, Palm Springs, Cslifomra 92262 unO, -----J local time on at which time they \WI be opened ard read alolJj. Bkts must be stbrriUed in sealed envelopes mar1(ed on lhe outside: .. AIRFIELD LIGHTING PROJECT".

DELIVERY OF BIDS- NOTIFICATION OF PARKING LOT CONSTRUCTION AT CITY HALLContrac1ors are hereby notified that there will be construction in progress at the Palm Springs City Hall parking lot on the day that Bids are due. Contractors shall take this into account in the delivery of their bids, as neither the City ncr the parking lot contractor shaU be liable or responsible for the late delivery of a bid due to the construction in progress at Ctty Hall. It is the responsibility of the contJl1Qor to see tha1 any bid that is hand delivered, sent throogh the mall, or by any other delivery method, shall have sufficient time to be reoeived by the Office of PrcaJrement & Contracting by the due date and time. Late bids will nol be accepted and shall be returned unopened.

LOCATION OF WORK- The Work to be peffotmed hereunder is located at the Palm Springs International Airport. 3400 E. Tal1quftz Canyon Wtri. Palm Springs, California.

DESCRIPTION OF THE WORK: The Project consists of replacing approximately 222,000 lineal feet of existing airfield electrical conductors to taxiway and runway lights, signs and navaids. The Project indudes replacement of Constant Current RegtJiators, replacement of transformers on existing LEO taxiway fixtures. and replacement of existing Incandescent Mandatory, Directional and Informational signs with LED signs. The GA Runway will be upgraded wtth Medium Intensity LED Runway Ughts. new LED Runway End IndiCator Ughts and new LED Precision Approach Path Indicators. The Project will require temporary closures to runways and taxiways.

The Engineer's Estimate falls within a range of $1.9 to $2.2 million.

The City has not yet received FAA grant funding. However, a pre--application has been made and there is sufficient Airport Improvement Program entitlement funding allocated for thiS project, but the F M will not issue final grant offer withOut final bid price amount

OBTAINING OR INSPECTING CONTRACT DOCUMENTS- A complete set of Contract Documents dated March 17. 2017 may be obtained on, or after at Planit Reprographics, 7n38 Flora Road. Palm Desert, California 92211, phone (760) 345-2500. fax (760) 345-2599 for a non-refundable deposit of $400.00 for each hard<:opy set or $200.00 for each CO. Shipping oosts are extra. Checks to be made paya~ to Plan it Reprographics. A copy of the Planholder's list may be obtained by contacting Planit Reprographics directly. Contact person: Eric Birch Email: [email protected]

Bidder must &l.lpply all information required by the complete bid documents and specifications.

PROJECT ADVERTISEMENT- The project was advertised for bid----

PRE-810 CONFEReNCE AND VISIT TO WORK SfTE - All interested txddets are ~ to attend a PreBid Conferenoe and examne lhe site to become farnliar wth the site oondtions. The NON-MANDATORY Fre Bid Conference will be held at___. local time, on at the Palm Springs International Airport. 3400 E. Tahquitz Canyon W~. Palm Springs, CaUfornia, in the fid Floor Conference Room. A tour of the site will occur for Interested bidders, immediately following the conclusion of the Pre Bid Conference. For safety and security reasons, bidders are limited to 2 representatives on 1he site tour.

COMPLEnON OF VtORK • Time is of the essence. All field work must be completed within 150

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consecutive calendar tii1Y5 after oommencement date stated in the Notice to Proceed.

AWARD OF CONTRACT • The contract will be awarded to the lowest responsible bidder. The lowest responsible bidder for the purposes of award shall be the bidder offering the lowest aggregate price ror the Base Bid plus Alternate No. 1, No.2 and No. 3. However, the City reserves the right to delete any and all line items from any, all or none of the Bid Alternates from the actual contract award based upon the availability of funding. The deletion of any and all of the line items from the Bid Altemates shall in no way affect the determination of the lowest responsible bidder, which sh~l be determined by the inclusion of aU of the line items. The City raserves the right after opening, to reject any and all bids, or to waive any minor informality In a bid. The award of the contract is subject to the approval of the Federal Aviation Administration.

As a condition of award, the successfu4 bidder will be required to submit bonds and insurance, prior lo the execution of the contract by the City. Failure to meet tbis requirement shall conStitute abandonmet'lt of the Bid by the Bidder and forfeiture of the Bid Bond. If this occurs the contract will then be awarded to the next lowest bidder.

BID SECURITY - Each bid shall be accompanied by either cash, certified cashier's chad< or Bid Bond in the amount of ten (10) percent ot the total bid price {all schedules, as applicable), payable to the City of Palm Springs, as a guarantee that the Bidder, if its Bid is ac:cepted, will promptty obtain the required Bonds and Insurance and will prepare the required submittal document and execute the Agreement.

BIDS TO REMAIN OPEN • The Bidder shal guarantee lhe Totat Bid Plice for a period of ni'lety (90} calendar days from the date of Bid Opening.

CONTRACTORS UCENSE CLA.SSIFICA110N - In ~nee wth the provisions of California Public Contract Code Sedlon 3300, the Cfty has detennlned that the Contractor shal possess a vatid Class A Contrador liJense at the time the Contract Is awarded. Failure to possess the specffied license shall render the bid as rm-responsive and shafl act as a bar to award of the Contract to any bidder not possessing said license at the time of award.

The ConlractDf must be lk:ensed b do business illhe CHy of Palm Springs in acmrdance with the provisions of Chapter 9. Division 3. of the Business end Professions Code, and will be required to obtain a City Conslruction Permit No Fee from the Building Depmtment and/or the Put:Jiie Works Inspection Supervisor, City Hall, Palm Springs, Califomia.

STATEMENT OF QUAUFICATIONS - Each proposal lnJst be acccmpanied by a sta1ement of the bidder's q.Jalffications to perform the work contemplated. The Statement of Qualifications shall be prepared on the form attached hereto.

CONTRACTORS REGISTRATION REQUIREMENTS- Po$ a condition of award or after April1, 2015, the contractor and any subcontractor listed on the bid must be registered with the Department of lndustrial Relations ptJrsuant to Section 1725.5 of the Csllfomla Labor Code.·

WAGE RATE REQUIREMENTS-(a) .smm - In aetordance with the provislons of California Labor Code Section 1770, 1773.

1TI3.1,1773.6 and 1773.7, as amended. the Director of the Department of Industrial Relations has determined the general prevailing rate of per diem wages in accordance with the s1andards set forth in Section 1773 for the locality in 'll'ltlk:h the Wotk is to be pertonned. A copy of said wage mtes is on file at the Department of Building and Safely, City Hall, Palm Springs, C&!ifomia. It shall be mandatory upon the Contractor to whom the Work is awarded and upon any subcontractor under the Contractor to pay not less than said specified rates to all workers employed by them in the execution of the Work, and shall posl a copy af said wage rates at the project site.

(b) Federal - The general prevailing rate of wages, as determined by the Secret.}~ of Labor are included hereinafter as part d the Contract Doo.ments; prQVided, lhat If there is Btly differenc:e betWeen the State or Federal wage rate for any given ctafl or mechanic needed to execute the wotk, il shaH be mandatory upon the Ccntractor and any subcontractor to pay the higher of the two rates.

All labor on lhe project shall be peid rro less than the minimum wage rates established by the U.S. Sea'etary of

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Labor.

TRADE RESTRlCTIONS ·All solicitations, contracts and subcontracts resulting from pr()jects funded under the Airport Improvement Program (AlP) must contain the foreign trade restnction required by 49 CFR Part 30, Denial of Public Works Contracts lo Suppliers of Goods and Services of Countries That Deny Procurement Market Access to u S. Contrectors.

The A'liation Safety and Capacity Expansion Act of 1990 provides that preference be given 1o steel and manufactured products produoed In the United States when funds are expended pursuant to a grant issued under the Airport Improvement Program.

EQUAL EMPLOYMENT OPPORTUNITY AND AFFRMATIVE ACTION REQUlREM!NTS- Eacll bidder must complete, sign and furnish, prior to award of the contract, the "Bidders Statement on Previous Contracts Subject to EEO Clausec'. a "Certification of Nor1$egregi!ted Facilities'\ and the ~~Assurance of Disadvantaged Bustness Enterprise Partic;pation" as contair\ed in the Bjd Proposal. These items mus1 be submitted with his or her bid.

A Contractor having 50 or more employees aoo his or her subcontra<::tors having 50 or more employees and who may be awarded a contract of $50.000 or more will be required to maintain an affirmative action program, the standards for which are contained in these specifications.

The proposed contract is under ana subject to Executive Order 11246, as amended, of September 24, 1965, and to the Equal Employment Oppom.mlty (EEO) and Federal Labor Provisions.

The EEO requirements, labor provisions, and wage rates are i'lcluded in the specitrations and bid documents and are available for inspection at the Oepaltment of Bultcing and Safety, City Hall, Palm Springs, California.

To be eligible for award, each bidder must compty with the affirmative action requirements which are contained in the spe<:ifications.

Disadvantaged Business Enterprises (DBEs) as oofined In 49 CFR Part 26 shall have the maximum opportunity to participate in the performance of contracts uncter this agreement Consequently, the DBE requirements of 49 CFR Part 26 apply to this agreement.

women will be afforded equal oppostunity in all areas of emptoyment However, the employment of women shan not diminish lhe standards of requirement for 1he employment of minorities. ·

RETAINAGE FROM PAYMENT- The Contractor may elect to receive 100 percent payments due under the Contract Documents from time to time. without retention of any portion of the payment by the City. by depositing securities of equivalent value with the City in accordance with the provisions of Section 22300 of the Public cantract Code. Such securities, If deposited by the C<>ntractor, shall be valued by the City, whose decision on valuation <Jf the seourtttee shaD be final. Securities ellglble for fnvesbnent under this provision shall be limited to those listed in Section 6430 of the Government Code or bank or savings and loan certificates of deposit.

ADDRESS AND MARKING OF BIDS - The envelope enclosing the Bid shall be sealed and addressed to the City of Patm Springs, and shall be delivered or mailed to Craig L. Gladders. C.P.M., Procurement and Contracting Manager, at 3200 East Tahquit:z Canyon Way, Palm Springs, CA 92262. The envelope shall be p1alnly marked in the upper left hand comer w~h the name and address of the Bidder and shaU bear the words •AIRFIELD LlGHTING PROJECTn for the ''PALM SPRINGS INTERNATIONAL AIRPORT", followed by the date and hour of opening Bids. The certified or ca&Jlier's check or Bid Bond shall be enclosed in the same envelope with the Bid.

PROJECT ADMINISTRATION • AJI communications relative to thiS Work shall be directed to Mr. Curt Ingraham, P.E., Pat"$0ns Brinckerhoff, 451 E. Vanderbilt Way, Suite 200, San Bemardino, CA 92408, phone (909) 888·1106. fax (909} 889-1884, (e~il) [email protected] All questions relating to Interpretation of the Contract Documents or prcducts must be submitted in writing, ten days priOr to bid opening, and any responses will be in the fotm of wrttten addenda to the Documents.

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BY ORDER OF lHECITV OF PALM SPRINGS. CA

DATE: __ _

By.. ________________ _

Craig L Gfadders. C.P.M Procurement and Contracting Manager

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DATE: May03, 2017 NEW BUSINESS

SUBJECT: Airport Terminal Ticketing Wing Renovation Schematic Drawings Review


BY: Department of Aviation

SUMMARY

On August 3, 2016, City Council approved a Federal Aviation Administration Grant to fund the design of the Airport's Terminal Ticketing Wing Renovation. The schematic design is ready for City Council's input and authorization to proceed with the design development phase. Representatives from WSP PB Aviation will make a presentation on the Schematic Drawings at the Council meeting.

RECOMMENDATION:

1. Approve acceptance of the Airport Terminal Ticketing Schematic Design.

2. Authorize proceeding with the Design Development phase.

3. Authorize proceeding with the bid on the Terminal Phase 1 Enabling Project estimated to cost approximately $1,300,000.

STAFF ANALYSIS:

In late 2015, City Council adopted the updated Federal Aviation Administration funded and approved Airport Master Plan that identified a need to expand the interior space of the airport's tenninal ticketing wing to address growing constraints in the passenger circulation and check-in queuing areas, and enhance the efficiencies of baggage screening and processing fundions. This Airport Master Plan project was also identified by City Council, during the March 2017 Strategic Planning sessiont as a three-year goal to "Enhance and invest in public infrastructure". Working toward accomplishing this airport ticketing area capacity enhancement project, in August 2016 Council approved a professional services agreement with WSP Parsons Brinckerhoff Aviation, funded by FAA AlP Grant No. 3·06-0181-054·2016 in the amount of $1,922,379.82, for the full design and bid of the two construction season project. Schematic design is now

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City Council Staff Report May 03. 2017 -Page 2 Airport Terminal Tk:keting Wing Renovation SchematiC Drawings Review

complete and it requires review and input by the Council prior to proceeding with full design development.

The ticketing area renovation projecfs majority of work and expense are for utilitarian elements driven by the Federal Aviation Administration·s requirements for functionality check-in and baggage processing. The Airport Master Plan used specific aviation forecast methodology to identify actrvity levels that will result in airport facility constraints if not addressed. The FAA considers any airport's passenger processing and baggage handUng constraints an impediment to their overall National Plan of Integrated Airport Systems. This is based on the principle that when passengers and baggage are not processed safely and efficiently. then flight delays materialize and impose a domino effect impact on airline hub and spoke airport system schedules. The mission of the FAA includes ensuring that Federal Grants are being used appropriately to proactively identify capacity and efficiency constraints, and this schematic design's emphasis achieves these objectives.

Proj&et Functional and Design Elements The two driving components of this ticketing renovation is the need to create additional space in the passenger processing areas, installing new more efficient baggage screening systems in the rooms located behind· the ticket counter back wall out of public view, and adding capacity to. airline baggage retrieval capabilities and ticket counter customer service positions. Working within the confines of the existing ticketing wing's footprint. the only plausible way to create the needed passenger processing space was to move the airline ticket counters backwards creating more depth to the public circulation and queuing area. Given the C~uncil direction of not disturbing the terminal's historic front fa~de, which is being fully accomplished here. the rear of the ticketing wing's steel enforced canopy area will have to be fully enclosed to capture the additional operational space necessary to house a new consolidated baggage system and screening area. The entire interior of the e)(isting ticketing wing will require demolition and renovation. The project's specific benefits achieved include the following:

• Create approximately 5000 additiona~ square feet to the existing 15.000 square feet of space within the public processing and circulation area by moving the airline ticket check·in counters backwards

• Preserve the original architect's aviation theme while achieving a more open and spacious passenger circulation space integrating new digital $ignage technologies for improved information transmittal from airline to passenger

• Improve passenger processing alternatives and efficiency by adding more room for self-check-In kiosks

• Widen the main passenger flow corridor the full length of the ticketing hall for more capacity and efficient comfortable two-way passenger circulation

• Create easily accessible areas for wheelchair storage

27

City Council Staff Report May 03, 2017- Page 3 Airport Terminal Ticketing Wing Renovation Schematic Drawings Review

• Enhance the overall sense of the increased space and reduce ambient sound levels by elevating the public area ceiling height adding 66,000 cubic feet of space to the existing 102,000 cubic feet

• Install a semi-automated Baggage Handling System that enhances capacity throughput and fortifie$ airline and TSA security processes

• Consolidate the TSA baggage screening area equipment and functions for improved ergonomics and safety for airtine and TSA employees

• Create new customized, flexible airline operations offices to optimize space utilization and accommodate future airline changes

• Install new passenger check-in counters increasing the airline customer service agent positions from 50 to 60

• Replace HVAC, plumbing, and electrical systems with new ~echnology for improved safety, enhanced working conditions for tenant staff. and more comfort and convenience for the general public during passenger processing

• Build empbyee restrooms • Create airiine new operations offices under the Bono Concourse • Remove any hazardous materials during demolition

Design Assumptions The only area that has architectural features is the public space located between the airport terminal's front fa~e and wall immediately behind the airline ticket counters. The inspitation that drove the architect's interior design elements emanated from the existing terminal lobby which served as the hallmark of Mr. Donald Wexler's airport terminal building. A ceremony in 2009, with Mr. Wexler present, dedicated a plaque inscribed with the following:

"Built In 1966 Donald Wexler, Architect

An expression of the jet-age, the facade brings a .sense of flight to the terminal

entrance through a v·shaped roof, floating columns, and expansive glass"

Keeping with the ~~sense of flight" Mr. Wexler expressed with this iconic building, the interior renovation architectural features designed into the new ticketing wing public areas perpetuate 'this theme. Note: The colors and finishes in the following renderings are for exhibit purposes only and final selection will be detennined by the Council when Design Development is complete.

Design Concept Drawings and Project Ares l.ayout

Concept designs drawings and the proposed project area layouts are shown in Exhibits A through E.

• v. 23

28

City council Staff Report May 03, 2017 --Page 4 Airport Terminal Ticketing Wmg Reno11ation Schematic Drawings Review

Construction Schedule An important component of this ticketing renovation project Is orchestrating a phasing plan which minimizes the effect on the airport operations. The summer period is the optimum construction time because It has considerably less flight demand and subsequently fewer passengers to accommodate. However, the project cannot be Initiated and completed in one season, so it must be constructed over two off-seasons in 2017 and 2018.

Enabling Projects for Bid Approval

The action requested of City Council is to authorize proceeding with the Bid phase of the elementary ''Enabling Projects" which must be completed during calendar year 2017 for u1ilization as supplemental airline and TSA operations space during the main 2018 demolition and renovation portion of the project. The following drawing depicts the enabling projects which include a modular structure installed directly behind the ticketing wing, and the buildout of small offices under the Bono concourse at ground level. The estimated cost of these two enabling elements is $1.3 million and will be funded by an FAA Grant awarded after the bid price is determined.

See Exhibit F titled Enabling Projects to view the proposed layout.

FISCAL IMPACT:

The schematic phase design created a total project construction cost estimated at $24,400,000 and $26,000,000. Design DeveJopment will refine this estimate and include some contingencies that allow for cost reduction should there be anything in the final bid of the 2016 project that compromises the budgetary parameters. A separate professional services contn;lct was authorized by City Council in December 2c;>16 to conduct the appropriate financial feasibility of the project and established two prlmaty sources of funding for the project:

1) FAA Entitlement Grants funding: The first FAA grant is being used for current design and bid phase, and a second FAA grant is programmed to fund the 2017 enabling projects this summer. Additional FAA entitlement grant funds between $4,000,000 to $8.000.0001 which are formulated based on total annual number of passengers, is forthcoming and will be used for only FAA eligible pro;ect elements in the 2018 construction and renovation phase. AU FAA grants combined will fund approximately one-quarter of the total project cost.

2) FAA Passenger Facility Charge: Will be instituted to retire the old PSP Airport Bond that originated in the 1990s to fund construction of the new Bono Concourse, and provide new bonds for the 2018 major ticketing construction and renovation. This new

h., 2 4

29

City Council Staff Report May 03,2017- Page 5 Airpor1 Tetminal Ticketing Wing Renovation Schematic Drawings Review

PFC program will be coming to Council soon for authorization to proceed with the program as required by the FAA.

Of the ten alr11nes that serve PSP Airport, only five are under the Council approved Signatory Airport Use and Lease Agreement (AULA). Under the tenns of this AULA agreement there f5 a provision that requires these airlines to have "majority" consensus on certain airport capfta1 expenditures. This agreement, which has been in place for over a decade, is consistent with the practices in airports throughout the United States. The Federal Aviation Administration closely monitors airport tenant practices to ensure that there ls a fair and cgmpetltlve airport environment without any discriminatory or preferential treatment to any airtine. The PSP Airport Airline Use and lease Agreement, as approved by City CounCil, provide the guideline parameters for airlines budgetary approvals on both airport operating and capital projects. The airlines' consensus process on how to address the ticketing wing constraints and remedies began in 2010 with their participation ;nto 1he Master Plan that Council ratified in 2015. During that process, the airlines' input was the driving impetus for creating this cost effective ticketing renovation project alternative versus two significantly more complicated aHematives that involved the construction of an entirely new building at about twice the expense of this project. There has been majority consensus by the airlines to proceed with this project and the airlines jndicated they will use a technical committee to work closely in design development phase to ensure that the project budget is preserved and that future operating expenses emanating from the project are as streamHned as possible. Each air1ine will require proprtetaJY office and counter customized buHdout. and this technical committee will be responsible for representing those specific needs to the d eslgn team.

To ensure that the airlines do not incur project related costs during the phased main construcllon In 201 a, the new PFC Will include approximately $4,500,000 in funding that will cover airline specific relocation and new space build out costs. Additionally, the cons1ruction contract wiU provide an allotment to the general contractor to hire additional sufficient staff to assist air1ines with any additional baggage handling labor required during the temporary conditions during 2018 construction.

~lan, A.A. E. Executive Director, Airport

David H. Reedy, F City Manager

Attachments: WSP PB Aviation Project Presentation

25

30

Exhibit A

~ ~ "~_:, TICKETING HALL EXPANSION

. PfC 1\PP\.ICATIO"' PlAN

:;: '::".~ • ·- ""' · ~- 1 OF 1 1 PROPOSED TICKETING HAll AREA

Project Area Layout

26

31

Exhibit B

Rendering of new main ticketing area looking from north to south

27

32

Exhibit C

Rendering of new transition from main terminal/abby into the main ticketing hall

2.8

33

Exhibit D

-

Rendering of n&w south ticketing area looking north

29

34

Exhibit E

Rendering showing view facing the airline ticket counters

30

35

/ 1 ~BUILDING FLOOR PLAN

Enabling Projects

Exhibit F

_j n:11

2 ~ONO CONCOURSE LOWER LEVEL PLAN

2 -~ •. 1 • " ·· TICKETING HALL EXPANSION

ENABLING PROJEC""S f>LAN ~~;:;:-;,•, ' - ·- - · 1 OF 1

31

36

Attachment B

32

37

October 261 20 17

Craig G ladders Procurement & Contracting Manager Palm Springs International Airport 3400 E. Tahquitz Canyon Way, Palm Springs, CA 92262

RE: Enabling Project - Re-bid AlP No. 3-06-0181-055-2017

Dear Mr. Gladders,

The bid documents for all three (3) of the bidders- Caltec Corporation, Future DB [ntemational and Marcon Engineering for the subject project, Enabling Project - Re-bid IFB 18-02, have been reviewed and we offer the following recommendations:

The Bids were checked for mathematical errors and confirmed to be correct. A bidders comparison chart is attached for your use.

Caltec Corporation and Future DB International bid documents have been found to be in confonnance with the requirements of the contract and are found to be responsive.

Marcon Engineering's bid documents are deficient in the following areas: l. Instructions to Bidders Item 9e missing required written confirmation from each

listed SBE that it is participating in the contract in the kind and amount of work provided in the prime contractor's commitment

2. Bid Form III-6 requires the contractor to list all sub-contractors- this form is incomplete as only 51% of the work is accounted for.

We deem Marcon Engineering's bid to be non-responsive.

We have evaluated Caltcc Corporation and Future DB International's bids and determined that the lowest responsive bidder is Caltec Corporation with a total bid of $2,180,000. The bidder and their sub-contractors State Contractor's License have been verified to be active. And the SBE goal of2.3% has been met.

The low-bidder total Bid in the amount of $2,180,000 is above the value of the FAA grant of $1,900,000. The FAA will allow for a project to exceed the Grant amount by as much as 15% which is reimbursed to the Sponsor on completion of the project. With that in mind, the total

WSPUSA

862 Ea~t Hospitality lane, Suite 350 San Bernardino. CA 92408

909·888·1106

wsp.com 33

38

maximum allowable Contract amount would be $2,185,000- slightly more than the low bidder total Bid Amount of$2,180,000. This would however leave little room for contingency.

After having discussed the bid results with the Airport Staff- we have decided to eliminate Bid Alternate No. 1 (Ramp Building) from this project and place it in the Future Terminal Remodel project. The Lump Sum price of all bidders for this item of work vastly exceeds the expected cost. At the current price point - WSP does not believe that the City of Palm Springs would receive full value for the monies spent. WSP will work with Vendors to understand the pricing received and re-evaluate/re-design this component.

Due to the delayed schedule for Tcnnina1 Remodel project, this Ramp Bui1ding in its revised form may be added to the future Terminal Package without affecting the relocation of tenants. This delay gives WSP time to revise the structure to provide a more cost-effective component to be bid as Phase 1 of the Main Project.

It is our recommendation that the Ba'\e Bid in the amount of $1,200,000 and Bid Alternate 2 in the amount of $130,000 is accepted and award of this contract in the amount of $1,330,000 be made to:

Caltec Corporation 8732 Westminster Blvd., Suite 2 Westminster, CA 92683 Contractors Lie # 852623-A&B

If any questions or concerns should arise regarding this letter, please feel free to call me at (909) 888-1106.

ZC.:zf -~ Assistant Vice President Construction Manager

Attaclunents: I

WSPUSA 852 East Hospitality Lane Suite 350

San Bernardmo. CA 92408

909·888- ~lOti

YISI).Con~ 34

39

tscm

"*' 101

~,

301

--~-

ElMbCI"(( PraiHt. ~ Pll!tD aortnas ms.mconal Nrlllltt

Oolcrlv..an ~ ......... biJlevo-1"-1 Clf Bona Co_... b' "'a"'

~ flll).80N() CONCOURSE! ~.,c .... ...,..._.,

-*WboMn;~ ~-'ft ._.A.I""'Atw4 lao AL TM!Rt. Tl!! I ._,~_, .. IT

~

8Ul AL TERHA T£ 2

BASe UIU TOTAL

BIOAlTfA.~T£ 1 TOTAl.

BID N.. TI!R.-..AT£ 2 TOTAl.

~ ----

w c..n

TOTAL. BIDAMOUHl

uu

L.ti

l.b

LS

I

~4t

1

!

I

CalbcC«p

~

ur=pdoo Tot• UnCI~

s 1.100000.1:1) ' 1,200.000 00 s 1."'49,000.00

I 1,.200.000.00 s

I G:IOOOOOO • C'!SOOOO.OO • rea.ooo.oo

I 1!:100000:1 I

I 130,00000 $ 130.CM:l0.00 • 20000000

$ 130.000.00 s • 1.200.000.00 I

1 ~.00000 ' I 1300000:1 I

I Z. tiiO.OOO.OO I

Std Companaor.

FututeDB~l

~

ToCill ~Detl SOd.tl Ul'lltPIIOII

' 1."'il.OOO.OO 120.1'5"- ' 24.9.00UO I I ,M11.M!1 00

1.4411.000.00 I ,Aa,OOJOO I

$ 188.00000 92.'11.,. s (e2.COO.OO I 0611.0011.00

788.000.00 s <!:.000 00) s

5 20000000 1!3tl5"" $ 70,00000 ' G2.2S&OO

ZlO.aoo.oa ' 70.000.00 I

t,"'4t.OOOOO • 249,00000 I

788.00000 I (82,000.00) •

200.00000 • 70.COOOO S

2-m.OOClOO I 257.oc:o.oo I

Page 1

,.,._~ ~EstnMb*

~ WSP

Total 'lf.Oob SOota U'llfPIIQ(! Tl;tll ""Dclt.l lo.ta

I I,M!J.~.OO 154.91~ $ Mil &MOO • 1.~00.00000 . I (100,000.00)

l..Ma.'ll$8 00 s e.58,8900 I 1,100.000.00 s 1100.000.00)

' ~e:oe.oc 'l'!l~ $ (Ill. 112.00) s ~.00000 $ (!J$),000Jl0)

tllla.MZIOO s oa1.uz.OO'! a 31»00000 s :soa..ooooo

' 8220000 -'1".91.._ s (67.717.00} !I ~OOCOQ.OO s (30.000.Cl0)

82:.us8.00 • {51,712,.00) I 101'),00000 s 00.000.00)

1,M4.8&100 ' ~.-.oo 1 t,100,000JX) • (100.000 00)

eGe.eaaoo I (101,112.001 I :\00,00000 • <550.000.00)

~.28800 • 167.1U.OOI I ~00.00000 s (30.000.~

~ I <410.~00 I 1.500.000.00 $ (61!0,000 00)

40

Attachment C

41

CONTRACT AGREEMENT

PALM SPRINGS INTERNATIONAL AIRPORT FAA AlP PROJECT NO. 3-06-0181-055-2017

INVITATION FOR BIDS (IFB) 18-02

TICKETING HALL EXPANSION- ENABLING PROJECT RE-BID

THIS AGREEMENT, made and entered into this day of ___________ , 20 __ , by and between the City of Palm Springs, California, (City) and ______________ _

Contractor.

WITNESSETH:

Article 1. For and in consideration of the payments and agreements hereinafter mentioned, to be made and perfonned by the City, and under the conditions expressed in the bonds bearing even date to these presents and hereunto annexed, Contractor agrees with the City, at his or her own proper cost and expense, to do all the work and furnish all materials, except such as are mentioned in the specifications to be furnished by the City, necessary to complete in good workmanlike and substantial manner all of the work for: Improvements to Palm Springs International Airport, FAA AlP Project No. 3-06-0181-055-2017, Invitation for Bids (IFB) 18-02 in accordance with the drawings, proposal, description of work, and special provisions therefore, and also in accordance with the technical specifications for this project, at the first publication of the Invitation for Bids, and all other codes and ordinances referred to and thereby made a part hereof.

The limits and location of said work to be done is shown upon the City of Palm Springs Drawings entitled Improvements to Palm Springs International Airport, FAA AlP Project No. 3-06-0181-055-2017 Invitation for Bids (IFB) 18-{)2, consisting of numbered sheets which said sheets are hereby made a part of this Agreement.

Article 2. Contractor is responsible for furnishing all said materials and labor, furnishing and removing all plants, temporary work or structures, tools and equipment, and doing all the work contemplated and embraced in this Agreement: also, for all loss and damage arising out of the nature of the work aforesaid, or from the action of the elements or from any unforeseen difficulties which may arise or be encountered in the prosecution of the work until its acceptance by the City, and for all risks of every description connected with the work; also, for all expense incurred by or in consequence of the suspension or discontinuance of work except such as, in the said specifications, are expressly stipulated to be borne by the City, and for well and faithfully completing the work and whole thereof, in the manner shown and described in the said drawings and specifications and in accordance with the requirements of the Engineer. The City shall pay and the Contractor shall receive in full compensation therefore, the prices for the several items named in the bidding sheet of the proposal.

Article 3. The City hereby promises and agrees with the Contractor to employ and does hereby employ the Contractor to provide the materials and do the work according to the tenns and conditions herein contained and referred to for the unit prices bid, and hereby contracts to pay the same at the time, in the manner, and upon the conditions above set forth; and the said Parties for themselves, their heirs, executors, administrators, successors and assigns, do hereby agree to the full performance of the covenants herein contained.

Article 4.

A Contract Documents: The Contract Documents consist of: Notice Inviting Bids, Instructions to Bidders and the Federal Supplementary Instructions; the prevailing rate of per diem wages as determined by the Director of the Department of Industrial Relations; Federal Wage Rates of the U.S. Dept. of Labor, the accepted Bid Schedule, the Schedule of Values or cost-loaded CPM schedule on lump-sum projects, Equipment or Material Proposed (when required); Bidder's General Information; Bid Security or Bid Bond; Affirmative Action, Minority Business Enterprise, and Equal Employment Opportunity

TICKETING HALL EXPANSION-ENABLING PROJECT PALM SPRINGS INTERNATIONAL AIRPORT

V-1 CONTRACT AGREEMENT BID DOCUMENTS

MAY 15.2017

42

Certificates; this Agreement; Worker•s Compensation Certificate: Performance Bond; Payment Bond; Certificate of Non-Segregated Facilities; Notice of Award; Notice to Proceed; Notice of Completion; General Provisions; Special Provisions; Technical Specifications; Drawings listed on the Sheet Index of the Drawings; inclusive; and all Change Orders and Work Directive Changes which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto.

B. Order of Precedence of Contract Documents:

1. In resolving disputes resulting from conflicts, errors, or discrepancies in any of the Contract Documents, the order of precedence shall be as follows: a. Change Orders or Work Directive Changes b. Agreement/ Contract c. Federal Requirements d. Addenda e. Special Provisions f. Notice Inviting Bids g. Instructions to Bidders h. General Provisions i. Technical Specifications j. Referenced Standard Specifications k Contract Drawings L Referenced Standard Drawings. m. Contractor's Bid (Bid Forms)

2. With reference to the Drawings the order of precedence shall be as follows:

a Figures govern over scaled dimensions b. Detail drawings govern over general drawings c. Addenda or Change Order drawings govern over Contract Drawings d. Contract Drawings govern over standard drawings e. Contract Drawings govern over shop drawings

Article 5. Contract Clauses and Requirements for Construction Contracts.

A. General and labor Clauses for All Construction Contracts and Subcontracts.

1. Airport Improvement Program Project. The work in this contract is included in Airport Improvement Program Project No. 3-06-0181-055-2017 which is being undertaken and accomplished by the City in accordance with the terms and conditions of a grant agreement between the City and the United States under the Airport and Airway Safety, Capacity, Noise Improvement, and lntermodal Transportation Act of 1992, as amended, pursuant to which the United States has agreed to pay a certain percentage of the costs of the project that are determined to be allowable project costs under the Act. The United States is not a party to this contract and no reference in this contract to the FAA or any representative thereof, or to any rights granted to the FAA or any representative thereof, or the United States, by the contract, makes the United States a party to this contract.

2. Consent to Assignment The Contractor shall obtain the prior written consent of the City to any proposed assignment of any interest in or part of this contract.

3. Convict labor. No convict labor shall be employed under this contract.

4. Veterans• Preference. In the employment of labor (except in executive, administrative, and supervisory positions}, preference shall be given to Veterans of the Vietnam era and disabled veterans as defined in Section 515(c){1) and (2) of the Airport and Airway Improvement Act of 1982. However, this preference shall apply only where the individuals are available and


V-2 CONTRACT AGREEMENT BIO DOCUMENTS

MAY 15,2017

43

qualified to perform the work to which the employment relates.

Withholding City from Contractor. Whether or not payments or advances to the City are withheld or suspended by the FAA, the City may, pursuant to applicable law. withhold or cause to be withheld from the Contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics employed by the Contractor or any subcontractor on the work the full amount of wages required by this contract.

5. Nonpayment of Wages. If the Contractor or any subcontractor fails to pay any laborer or mechanic employed or worl<ing on the site of the work any of the wages required by this contract, the City may take such action as may be provided for under any applicable law, to cause the suspension of any further payment or advance of funds until the violations cease.

6. FAA Inspection and Review. The Contractor shall allow any authorized representative of the FAA to inspect and review any work or materials used in the performance of this contract.

7. Subcontracts. The Contractor shall insert in each of his subcontracts the provisions contained in paragraphs 1, 3, 4, 5, 6, and 7 of this section and also a clause requiring the subcontractors to include these provisions in any lower tier subcontracts which they may enter into, together with a clause requiring this insertion in any further subcontracts that may in turn be made.

8. Contract Termination. A breach of paragraphs 6, 7 and/or 8 may be grounds for termination of the contract.

9. Lobbying and Influencing Federal Employees. (1) No Federal appropriated funds shall be paid, by or on behalf of the contractor, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of any Federal grant and the amendment or modification of any Federal grant. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal grant, the contractor shall complete and submit Standard Form-LLL, "Disclosure of Lobby Activities," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients shall certify and disclose accordingly

10. Liquidated Damages- Contractor understands and agrees that if Contractor fails to complete the work required by the Contract in accordance with the Contract Documents, City will suffer damages which cannot be quantified as of the date of execution hereof. Therefore, Contractor and City have agreed to stipulate the amount payable by the Contractor in the event of its failure to meet a Completion Deadline. As such, in the event of Contractor's failure to achieve the required deadlines, Contractor agrees to pay the City Liquidated Damages in the amount of $2,500 per calendar day for each day the project is not substantially complete and accepted beyond the overall project performance period. The overall project performance period shall be set as 137 calendar days after issuance of Notice-to-Proceed (NTP). Liquidated damages cover all extra costs incurred by the Airport for additional construction management and construction engineer and inspection time while the project is still underway beyond the projected performance period of the agreement.

Liquid damages will be set at $2,500 per calendar day for each day a phased work area is not fully re-opened per the phasing limitations set forth in the Agreement.

The parties intend for the Liquidated Damages set forth herein to constitute liquidated

TICKETING HALL EXPANSION·ENABLING PROJECT PALM SPRINGS INTERNATIONAL AIRPORT


MAY 15,2017

44

damages as such term is used in California Government Code Section 53069.85 to the extent said statute may apply, and to constitute stipulated damages to the extent that said statute is not applicable. Contractor acknowledges and agrees that the Liquidated Damages are intended to compensate the City solely for Contractor's failure to meet the deadlines for completion set forth in the Contract Documents and shall not excuse Contractor from liability from any other breach of Contract requirements, including any failure of the work to conform to applicable requirements.

B. Miscellaneous Clause Requirements for All Construction Contracts and Subcontracts Unless Otherwise Indicated.

During the perfonnance of this contract, the Contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "Contractor") agrees as follows:

1. Compliance with Regulations. The Contractor shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (Trtle 49, Code of Federal Regulations, Part 21), as they may be amended from time to time, (hereinafter referred to as the Regulations), which are incorporated by reference and made a part of this contract.

2. Nondisaimination. The Contractor, with regard to the work perfonned by it during the contract, shall not discriminate on the grounds of race, sex, age, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment The Contractor shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations.

3. Solicitations for Subcontractors Including Procurements of Materials and Eauioment. In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract. including procurements of materials or leases of equipment each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, sex, age, color, or national origin.

4. Information and Reports. The Contractor shall provide all information and reports required by the Regulations or directive issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City or the FAA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any infonnation required of a Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the City or the FAA as appropriate, and shall set forth what efforts it has made to obtain the information.

5. Sanctions for Noncompliance. In the event of the Contractor's noncompliance with the, nondiscrimination provisions of this contract, the City shall impose such contract sanctions as it or the FAA may determine to be appropriate, including, but not limited to:

a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or

b. Cancellation, tennination or suspension of the contract, in whole or in part.

6. Incorporation of Provisions. The Contractor shall include the provisions of paragraphs 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the regulations or directives issued pursuant thereto. The Contractor shall take action with respect to any subcontract or procurement as the City or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that, in the event a Contractor becomes involved in, or is threatened with,



MAY 15,2017

45

litigation "With a subcontractor or supplier as a result of such direction, the Contractor may request the City to enter into such litigation to protect the interests of the City and, in addition, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

7. Breach of Contract Terms - Sanctions. Contracts/Subcontracts shall contain such contractual provisions or conditions which will allow for administrative, contractual or legal remedies in instances where Contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. A sample clause is: "Any violation or breach of the terms of this contract on the part of the Contractor/Subcontractor may result in the suspension or termination of this contract or such other action which may be necessary to enforce the rights of the parties of this agreement."

The City will provide the Contractor written notice that describes the nature of the breach and corrective actions the Contractor must undertake in order to avoid termination of the contract. The City reserves the right to withhold payments to the Contractor until such time the Contractor corrects the breach or the City elects to terminate the contract. The City's notice will identify a specific date by with the Contractor must correct the breach. The City may proceed with termination of the contract if the Contractor fails to correct the breach by deadline indicated in the City's notice.

The duties and obligations imposed by the contract Documents and the rights and remedies available thereunder are in addition to, and not a limitation of, any duties, obligations. rights and remedies otherwise imposed or available by law.

The terms and conditions of paragraph 80-09 of the General Provisions of these Contract Documents are hereby made a part of this agreement as fully as if set out at length herein.

8. Contract Termination. (For contracts in excess of 510,000.) 49 CFR Part 18.36(i)(2) a. The City may, by written notice, terminate this contract in whole or in part at any time, either for the City's convenience or because of failure to fulfill the contract obligations. Upon receipt of such notice services shall be immediately discontinued {unless the notice directs otherwise) and all materials as may have been accumulated in performing this contract, whether completed or in progress, delivered to the City.

b. If the termination is for the convenience of the City, an equitable adjustment. as determined by the City in its sole discretion, in the contract price shall be made, but no amount shall be allowed for anticipated profit on unperformed services.

c. If the tennination is due to failure to fulfill the contractor's obligations, the City may take over the work and prosecute the same to completion by contract or otherwise. In such case, the contractor shall be liable to the City for any additional cost occasioned to the City thereby.

d. If, after notice of termination for failure to fulfill contract obligations, it is determined that the contractor had not so failed, the termination shall be deemed to have been effected for the convenience of the City. In such event. adjustment in the contract price shall be made as provided in paragraph 2 of this clause.

e. The rights and remedies of the City provided in this clause are in addition to any other rights and remedies provided by law or under this contract.

9. Rights to Inventions • Materials. {For contracts or agreements involving imported products, processes, methods, etc.) All rights to inventions and materials generated under this contract are subject to regulations issued by the FAA and the recipient of the Federal grant under which this contract is executed. Information regarding these rights is available from the FAA and the City.

10. Airoort and Airway Improvement Act of 1982. Section 520- General Civil Rights Provisions.

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The contractor assures that it will comply with pertinent statutes, Executive orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision obligates the tenant/concessionaire/lessee or its transferee for the period during which Federal assistance is extended to the airport program, except where Federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures of improvements thereon. In these cases, the provision obligates the party or any transferee for the longer of the following periods: (a) the period during which the property is used by the City or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits or (b) the period during which the City or any transferee retains ownership or possession of the property. In the case of contractors, this provision binds the contractors from the bid solicitation period through the completion of the contract. This provision is in addition to that required of Title VI of the Civil Rights Act of 1964.

11. Energy Conservation - 49 CFR Part 18.36. The Contractor agrees to comply with mandatory standards and policies relating to energy efficiency that are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Public Law 94-163)

C. Access to Documents. Records. Etc.

D.

1. For All Cost Reimbursement Tvoe of Contracts.

The Contractor shall maintain an acceptable cost accounting system. The City, the Administrator of the FAA and the Comptroller General of the United States. or an authorized representative of either, shall be allowed access to the Contractor's records which are pertinent to the contract for the purpose of accounting and audit. The Contractor shall maintain all required records for three years after the City makes final payment and all other ending matters are closed.

2. For All Negotiated Contracts in Excess of $10.000.

1.

The Contractor shall maintain an acceptable cost accounting system. The City, the FAA, the Comptroller General of the United States, or any of their duly authorized representatives, shall be allowed access to any books, documents, papers and records of the Contractor which are directly pertinent to an AlP project(s) for the purpose of making audit, examination, excerpts and transcriptions. The Contractor shall maintain all required records for three years after the City makes final payment and all other pending matters are closed.

Labor Contract Clauses for All Construction Contracts and Subcontracts in Excess of $2,000.

Minimum Wages.

a. All laborers and mechanics employed or working on the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part 3)). the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section (b )(2) of the DavisBacon Act on behalf of laborers or mechanics are considered wages paid to laborers

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or mechanics, subject to the provisions of paragraph (l)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans. funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification maybe compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer's payroll records accurately set forth the time set in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (l)(ii) of this section and the Davis-Bacon poster (WH-1321) shall be posted all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers.

b. The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits, therefore, only when the following criteria have been met:

(1) The work to be performed by the classification requested is not performed by a classification in the wage determinations; and

(2) The classification is utilized in the area by the construction industry, and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

c. If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U. S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140).

d. In the event the Contractor, the laborers or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140).

e. The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (l)(c) or (d) of this paragraph, shall be paid to all workers performing



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work in the classification under this contract from the first day on which work is performed in the classification.

f. Whenever the minimum wage rate prescribed in the conb"act for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage detennination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.

g. If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis-Bacon Act have been met The Secretary of Labor may require the Contractor to set aside, in a separate account, assets for the meeting of obligations under the plan or program. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140).

2. Withholding. The Federal Aviation Administration or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with the same Contractor, or any other Federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same Contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor, the full amount of wages required by the contract In the event of failure to pay any laborer or mechanic, induding any apprentice, trainee, or helper, employed or working on the site of work, all or part of the wages required by the contract, the Federal Aviation Administration may, after 'Niitten notice to the Contractor, City, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

3. Pavroll and Basic Records.

a. Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof as described in I (b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of labor has found under 29 CFR 5.5(a)(1 )(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1 (b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or b"ainees under approved programs shall maintain vvritten evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB control Numbers 1215-0140 and 1215-0017).



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b. The Contractor shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to the applicant, City, or owner, as the case maybe, for transmission to the Federal Aviation Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under paragraph (3)(a) above. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, D.C. 20402. The Contractor is responsible for the submission of copies of payrolls by all subcontractors. (Approved by the Office of the Management and Budget under OMB Control Number 1215-0149).

c. Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:

( 1) That the payroll for the payroll period contains the information required to be maintained under paragraph (3}(a) above and that such information is correct and complete;

(2) That each laborer and mechanic (including each helper, apprentice and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the wages earned, other than permissible deductions as set forth in Regulations 29 CFR Part 3;

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

d. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 (Section VIII - Contract Forms) shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (3)(c)(2) of this section.

e. The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code. The Contractor or subcontractor shall make the records required under paragraph (3)(a) of this section available for inspection, copying or transcription by authorized representatives of the City, the Federal Aviation Administration or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the Contractor, City, applicant or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

4. Apprentices and Trainees.

a. Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually



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registered in a bona fide apprenticeship program registered with the U. S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a Contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shalf be paid fringe benefits, in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

b. Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by fonnal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate spedfied in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll as a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a



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training program: the Contractor will no longer be permitted to utilize trainees at less than the applicable predetennined rate for the work performed until an acceptable program is approved.

c. Equal Employment Opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

5. Compliance with Copeland Act Requirements. The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract.

6. Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR Part 5.5 and such other clauses as the Federal Aviation Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all contract clauses in 29 CFR Part 5.5. The Contractor agrees to abide by all requirements for Subcontractor listing and replacement, found in the California Public Contract Code.

7. Contract Termination: Debarment. A breach of the contract clauses in paragraph (1) through ( 1 0) of this section and paragraphs ( 1) through ( 5) of the next section below may be grounds for termination of the contract, and for the debarment as a contractor and subcontractor as provided in 29 CFR 5.12.

8. Compliance with Davis-Bacon and Related Act Requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1 and 5 are herein incorporated by reference in this contract.

9. Disputes Conceminq Labor Standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6 and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

10. Certification of Eligibility.

(i) By entering into this contract, the Contractor certifies that neither it (nor he or she) nor any person or finn who has an interest in the Contractor's firm is a person or finn ineligible to be awarded Government contracts by virtue of section 3(a} of the Davis-Bacon Act of 29 CFR 5.12(a)(l).

(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act of 29 CFR 5.12(a)(l).

{iii) The penalty for making false statements is prescribed in the US. Criminal Code, 18 U.S.C. 1001.

E. Contract Work Hours and Safety Standards

1. Overtime Requirements. No Contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than


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one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

2. Violation: Uabilitv for Unoaid Waaes: Liauidated Damaaes. In the event of anv violation of the dause set forth in paragraph 1 above, the Contractor or any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such Contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 above, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 above.

3. Withholding for Unpaid Wages and Liquidated Damages. The Federal Aviation Administration or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld, from any monies payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same Contractor, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 above.

4. Subcontractors. The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 and also a clause requiring the subcontractor to indude these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4.

5. Working Conditions. No contractor or subcontractor may require any laborer or mechanic employed in the performance of any contract to work in surroundings or under working conditions that are unsanitary, hazardous or dangerous to his health or safety as determined under construction safety and health standards (29 CFR Part 1926) issued by the Department of Labor.

F. Equal Employment Opportunity Clause For All Construction Contracts and Subcontracts Exceeding $10,000. During the performance of this Contract, the Contractor agrees as follows, except any contracts/subcontracts (or certifications preliminary thereto) with a state or local government or any agency, instrumentality or subdivision of such governments which does not participate in work on or under the Contract or subcontract.

1. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color religion, sex or national origin. Such action shall include, but not be limited to the following: employment. upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

2. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, age, or national origin.


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3. The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a nolice to be provided advising the said labor union or worker's representatives of the Contractors' commitments under this section. and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment. notices to be provided setting forth the provision of this nondiscrimination clause.

4. The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, as amended, and of the rules, regulations and relevant orders of the Secretary of Labor.

5. The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, as amended, and by rules, regulations and others of the Secretary of Labor, or pursuant, thereto, and will permit access to his books, records and accounts by the FAA and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders.

6. In the event of the Contractor's noncompliance with the nondiscrimination clauses of this Contract or with any of the said rules, regulations or orders, this Contract may be canceled, terminated or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or Federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24,1965, as amended, or by rule, regulation or order of the Secretary of Labor, or as otherwise provided by Law.

7. The Contractor will include the portion of the sentence immediately preceding paragraph 1 and the provisions of paragraphs 1 through 7 in every subcontract or purchase order unless

· exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, as amended, so that such provisions will be binding upon each subcontractor or Vendor. The Contractor will take such action with respect to any subcontract or purchase order, enforcing such provisions, including sanctions for noncompliance; provided, however. that in the event a Contractor becomes involved in, or is threatened with litigation with a subcontractor or Vendor as a result of such direction by the FAA the Contractor may request the United States to enter into such litigation with a subcontractor or Vendor as a result of such direction by the FAA the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

B. Notices to be Posted per Paragraphs (1) and (3) of the EEO Clause- 41 CFR Part 60-1.4(b) - (Version 1. 1/5/90). Equal Employment Opportunity is the Law - Discrimination is Prohibited by the Civil Rights Act of 1964 and by Executive Order No. 11246 Title VII of the Civil Rights Act of 1964- Administered by:

The Equal Employment Opportunity Commission

Prohibits discrimination because of Race, Color, Religion, Sex, or National Origin by Employers with 25 or more Employees, by Labor Organizations with a hiring hall of 25 or more members, by Employment Agencies, and by Joint Labor-Management Committees for Apprenticeship or Training.

Any Person who believes he or she has been discriminated against should contact:

The Office of Federal Contract Compliance Programs U.S. Department of Labor



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Washington, D.C. 20210

G. Disadvantaged Business Enterprises (DBE)

Contract Assurance (§26.13)- The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the recipient deems appropriate.

Prompt Payment (§26.29) - The contractor agrees to pay each subcontractor under this contract for satisfactory performance of its contract no later than 30 days from the receipt of each payment the contractor receives from the City. The Contractor agrees further to return retainage payments to each subcontractor within 30 days after the subcontractor's work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City. This clause applies to both DBE and non-DBE subcontractors.

1. Contractor Responsibilities: The Contractor shall agree to the below stated Department of Transportation Policy and Disadvantaged Business Enterprises Obligation and further agree to insert the following clauses a, b, and c in any subcontracts.

a. Policy. It is the policy of Palm Springs International Airport to ensure that DBEs, as defined in 49 CFR Part 26, have an equal opportunity to receive and participate in DOT- assisted contracts. It is also our policy:

1. To ensure nondiscrimination in the award and administration of DOT -FAA-AlP assisted contracts:

2. To create a level playing field on which DBE's can compete fairly for DOT-FAAAlP assisted contracts:

3. To ensure that the DBE Program is narrowly tailored in accordance with applicable law;

4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBE's;

5. To help remove barriers to the participation of DBE's in DOT-FAA-AlP assisted contracts; and

6. To assist the development of firms that can compete successfully in the market place outside the DBE Program.

b. DBE Obligation The Contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT -assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate. The Contractor or subcontractor, by submission of any offer and/or execution of a contract, agrees to include these assurances in all subcontracts. The Contractor shall report quarterly DBE participation as required.

c. Compliance. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate.

2. Documentation. The Contractor shall keep such records as are necessary to show compliance with the City's DBE Program and, on the request of the City, shall make such



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records available on a quarterly basis for review by the City and the FAA.

H. Clean Air and Water Pollution Control Requirements for All Construction Contracts and Subcontracts Exceeding $100.000.

Contractors agree:

1. That any facility to be used in the performance of the contract or to benefit from the contract is not listed on the Environmental Protection Agency (EPA) list of Violating Facilities.

2. To comply with all the requirements of Section 114 of the Clean Air Act, as amended, 42 U S.C. 1857 et seq. and Section 308 of the Federal Water Pollution Control Act, as amended, 33 U.S.C 1251 et seq. relating to inspection, monitoring, entry, reports, and information, as well as all other requirements specified in Section 114 and Section 308 of the Acts, respectively, and all other regulations and guidelines issued thereunder.

3. That as a condition for award of a contract they will notify the awarding official of the receipt of any communication from the EPA indicating that a facility to be utilized for performance of or benefit from the contract is under consideration to be fisted on the EPA List of Violating Facilities.

4. To include or cause to be included in any contract or subcontract which exceeds $100,000 the aforementioned criteria and requirements.

5. Contractor agrees to include all language in Section H. in all subcontracts.

I. Bonding Clauses for Construction Contracts and Subcontracts.

1. The Contractor agrees to fumish a performance bond in a form approved by the City for 100 percent of the contract price. This bond is one that is executed in connection with a contract to secure fulfillment of all of the Contractor's obligation under such contract.

2. The Contractor agrees to furnish a payment bond in a form approved by the City for 100 percent of the contract price. This bond is one that is executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the Contract.

J. Buy American- Steel and Manufactured Products for Construction Contracts (Jan 1991)

1. The Aviation Safety and Capacity Expansion Act of 1990 provides that preference be given to steel and manufactured products produced in the United States when funds are expended pursuant to a grant issued under the Airport Improvement Program. The following terms apply:

a. Steel and manufactured products. As used in this clause, steel and manufactured products include (1) steel produced in the United States or (2) a manufactured product produced in the United States, if the cost of its components mined, produced or manufactured in the United States exceeds 60 percent of the cost of all its components and final assembly has taken place in the United States. Components of foreign origin of the same class or kind as the products referred to in subparagraphs (b) (I) or (2) shall be treated as domestic.

b. Components. As used in this clause, components means those articles, materials, and supplies incorporated directly into steel and manufactured products.

c. Cost of Components. This means the costs for production of the components, exclusive of final assembly labor costs.



MAY 15,2017

56

2. The Contractor will be required to assure that only domestic steel and manufactured products will be used by the Contractor, subcontractors, materialmen, and suppliers in the performance of this contract, except those

a. that the U.S. Department of Transportation has determined, under the Aviation Safety and Capacity Expansion Act of 1990, are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.

b. that the U.S. Department of Transportation has determined, under the Aviation Safety and Capacity Expansion Act of 1990, that domestic preference would be inconsistent 'Nith the public interest; or

c. that inclusion of domestic material will increase the cost of the overall project contract by more than 25 percent.

Article 6. The Contractor agrees to accept as his full and only compensation for the performance of all the work required under this Contract such sum or sums of money as may be proper in accordance with the price or prices set forth in the Contractor's Proposal attached hereto and made a part hereof covering all of the items.

Article 7. To the extent allowed by law, the Contractor agrees to indemnify, defend and hold harmless the City, from any and all claims and damages to property and injury to persons which may arise both of and during operations under this Contract, whether such operations be by the Contractor or by any subcontractor or anyone directly or indirectly employed by the Contractor or any other employee or person employed or engaged on or about, of in connection with, the construction.

Article 8. City Officers and Employees: Non-Discrimination

A. Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.

B. Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement

C. Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation. gender identity, gender expression, physical or mental disability, or medical condition. Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation: and selection for training, including apprenticeship. Contractor shall otherwise fully comply with the provisions of Palm Springs Municipal Code Section 7.09.040 relating to non-discrimination in city contracting.

Article 9. Venue and jurisdiction of any action will only be brought in the Indio Superior Court, Riverside County, California.

Attorney Fees. Costs. and Expenses of Litigation - If any action at law or in equity is necessary to enforce or interpret the terms of this agreement, each party shall bear its own attorneys' fees, costs and necessary disbursements. Not withstanding the foregoing, if any action is brought against the Contractor or



MAY 15,2017

57

any subcontractor to enforce a Stop Notice or Notice to Withhold which names the City as a party to said action, the City shall be entitled to reasonable attorneys' fees, costs and necessary disbursements arising out of the defense of such action by the City. The City shall be entitled to deduct its costs for any Stop Notice filed, whether court action is involved or not.

Article 10. In the event a Stop Notice or Notice to Withhold is filed, the CITY, at its sole discretion, may, at any time, retain out of any amounts due to the CONTRACTOR. sums sufficient to cover any and all claims filed pursuant to Section 3196 ef seq., of the California Civil Code.''

Article 11. Whenever any provision of the Contract Documents requires the giving of written notice, it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the Notice.

Article 12. No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation monies that may become due and monies that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents.

The total estimated cost for AlP Project No. 3-06-0 181-055-2017 and Invitation for Bids (IFB) 18-02, thereof to be

---------------------dollars($ ________ ).

Signature Page Follows



MAY 15,2017

58

IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above.

ATTEST: CITY OF PALM SPRINGS, CALIFORNIA

By ______________________________ _ By ________________________ _

City Clerk City Manager

APPROVED f:1S TO FORM:

By ____________________________ __

City Attorney

CONTRACTOR: Check One: __ lndividuai __ Partnership __ Corporation

Corporations require two notarized signatures: One from each of the following: A. Chairman of Board, President, or any Vice President: AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.

By: _________ _

Name: __________________ __

Ti~e: _________ _

State of ________ _

County of _________ _

On before me,, ____ _ personally appeared _____ _ personally kno\NI"' 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 signature(s) on the instrument the person(s}, or entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.

Notary Signature: __________ _

Notary Seal:


By:----------

Name: ___________________ _

TiUe: -----------

State of __________________ _

County Of _________ _

On before me, ____ _ personally appeared _____ __ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their signature(s) on the instrument the person(s), or entity upon behalf of "Which the person(s) acted, executed the instrument

WITNESS my hand and official seal.

Notary Signature: ______ _

Notary Seal:


MAY 15,2017

59

Attachment 2

60

Recording Requested By And

When Recorded, Return To: City of Palm Springs -Attn: City Clerk P.O. Box 2743, Palm Springs, CA 92263-2743 (SPACEABOVE THIS LINE FOR RECORDING USE) (EXEMPT FROM RECORDING FEE PER GOV. CODE '6103)

NOTICE OF COMPLETION

NOTICE IS HEREBY given that:

1. The City of Palm Springs, California, is a municipal corporation, organized and incorporated pursuant to the laws of the State of California.

2. The City Clerk of the City of Palm Springs is authorized and directed to execute, on behalf of said City, any and all Notices of Completion.

3. The address of the City of Palm Springs is City Hall, 3200 E. Tahquitz Canyon Way, Palm Springs, California (P.O. Box2743, Palm Springs, CA92263-2743).

4. The public work of improvement on the hereinafter referred to real property within the city was COMPLETED on the 11th day of September , 2018.

5. The name oft he contractor (if named) for such work of improvement was: CAL TEC Corporation

The public work of improvement, which was completed in the City of Palm Springs, County of Riverside, State of California, is described as follows: TICKET HALL EXPANSION ENABLING PROJECT

Nature of Interest: Fee Owner

The property address or location of said property is: 3400 E. Tahquitz Canyon Way, Palm Springs, California. 92262.

INVITATIONFORBIDS{IFB)18-02,AgreementNumber: A7066 Minute Order N umber:_..N...:..:;/..._A_,_ __

CITY OF PALM SPRINGS:

REVIEWED BY: _______________ _ DATED: _______ _

BY: _____________ _ DATED: _______ _

Thomas Nolan, Executive Director of Aviation

Anthony Mejia, being duly sworn. says:

That he is the City Clerk of the aforesaid City of Palm Springs, California, the corporation that executed the foregoing notice; that he makes this verification on behalf of said corporation; that he has read the foregoing Notice of Completion, and knows the contents thereof, and that the facts stated therein are true; that as said City Clerk, he makes this verification on behalf of said municipal corporation.

City Clerk -Anthony Mejia


Vlll-10

Index No.

CONTRACT ADMINISTRATIONFORMS BID DOCUMENTS

MAY 15, 2017

61

City Council Regular Meeting 1.F. Meeting Date: 11/28/2018

SubjectPURCHASE OF NEWS RACKS FOR THE DOWNTOWN/UPTOWN BUSINESS DISTRICTAREAS:RECOMMENDATION:

In accordance with Palm Springs Municipal Code Section 7.04.020 “Sole SourceProcurement by the City,” authorize issuance of a Purchase Order in the amount of$38,228.47, to City News Stands of Indianapolis, IN, for the purchase of seven (7) newsracks.

1.


Attachments1F Purchase News Racks

Citv Council Staff Report .. Date: November 28, 2018 CONSENT CALENDAR

Subject: PURCHASE OF NEWS RACKS FOR THE DOWNTOWN/UPTOWN BUSINESS DISTRICT AREAS


Initiated by: Maintenance and Facilities Department

SUMMARY

This action will approve the purchase of 7 news racks, to replace existing news racks, located along Palm Canyon Drive, Indian Canyon Drive, and various cross-streets located within the Downtown/Uptown District.

The City Council liaison (Mayor Pro Tern Roberts) and staff coordinated with Main Street and the Downtown/Uptown merchants on the type of news racks to purchase for replacement.

RECOMMENDATION:

1) In accordance with Palm Springs Municipal Code Section 7.04.020 "Sole Source Procurement by the City," authorize issuance of a Purchase Order in the amount of $38,228.47, to City News Stands of Indianapolis, IN , for the purchase of 7 news racks; and

2) Authorize City Manager to execute all necessary documents.

BUSINESS INTEREST DISCLOSURE

A search of records on the Indian Secretary of State website identifies City Newsstands, LLC, as an Indian limited liability company, whose principal and manager is Randall Zartman.

IIEJI. NO. j_ . f= ·

City Council Staff Report November 28, 2018 - Page 2 Downtown news racks

BACKGROUND:

There are approximately 50 individual news racks permitted and placed in various locations along the City sidewalks through the Uptown/Downtown District. An example of the type of individual news racks is shown in the following photo.

Staff, in consultation with the Council liaison, reviewed various suppliers for new combination news racks , and selected a product that has within a single un it 8 news bins. In this way, by replacing nearly 50 individual news racks with 8 combination news racks, the City can eliminate 47 separate news racks and free up valuable sidewalk area. The City previously purchased 1 combination news racks for demonstration in the downtown area, and it will be necessary to purchase the remaining 7 news racks.

A photo showing the proposed new combination news rack.

2

City Council Staff Report November 28, 2018 - Page 3 Downtown news racks

This combination news rack is a proprietary item sold by City Newsstands, LLC, from Indianapolis, IN , at a price of $4,600 each plus sales tax and delivery at an estimated full cost of $5,461.21 each. As a proprietary item, the City can purchase this item in accordance with Section 7.04.020 "Sole Source Procurement by the City," of the Palm Springs Municipal Code.


The requested City Council action is not a "Project" as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a "Project" means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. According to Section 15378(b) Project does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.

FISCAL IMPACT:

The cost to purchase the news racks is estimated at $38,228.47; the final cost may change dependent upon actual freight and delivery costs. Staff recommends the Council authorize expenditure up to $40,000 to cover any contingency required with final delivery costs. Sufficient funding is budgeted and available in the Measure J Fund, Account 260-1396-42301 (Property Maintenance/Landscape) .

SUBMITTED:

-S-ta_c_i_A_.S_c_h_a-fe-r-.--------------~~ Director of Maintenance & Facilities Asst. City Manager/City Engineer

=-~~ David H. Ready, City Man

Attachment:

1: Quote

3

city I: 13'4lt'istands Modular Newsrack Quote

The Stutz Business Center 1060 N. Capitol, Suite E-160

Indianapolis, IN 46204 tel: (317) 744-0257 eel : {317) 695-2805 Randall Zartman

[email protected]

Qty Item Description

City of Palm Springs


· (760) 323-8364, ex 8513 Heather MacPherson [email protected]

7 (Mode l 4-8) 2-tower unit (1 PAID & 6 FREE compartments) I Painted RAL 7004

Cabinet shell (2-tower): $1,250 + $1,250 + $525 + $525 + $525 + $525 = $4,600.00

2-tower

I

I Model4-8 1 PAID - 6 FREE

Unit s come fully assembled and ready for Insta llation.

NOTE: For the purposes of this quote the tax rate of 9.25% would result in a tax on goods of $2,978.50. Since we have no nexus or physical presence in the State of California we are not obliged to collect this tax and instead this "use" tax would be paid by the City of Palm Springs at the local level.

CHECKS PAYABLE ro: City Newsstands LLC

Re: City of Palm Springs Newsracks Date: November 9, 2018

Price Each I Amount

$4,600.00 $32,200.00

TOTAL: $32,200.00 Less deposit (25%) - 8,050.00 Balance: $24,150.00 Freight: (est imate) + $3.050.00 Due on delivery: $27,200.00

Including freight est imate subject to adjustment at

time of shipment.

FOB Indianapolis, IN

4

Modular Newsrack Quote

The Stutz Business Center 1060 N. Capitol, Suite E-160

Indianapolis, IN 46204 tel: (317) 744-0257

City of Palm Springs 3200 E. Tahquitz Canyon Way

Re: City o f Palm Springs Newsracks Date: November 9, 2018

eel : (317 ) 695-2805 Randall Zartman

[email protected]

Qty Item Description

Palm Springs, CA 92262 (760} 323-8364, ex 8513 Heather M acPherson

Heather.M [email protected]

Unit pricing is based on f ina l sizes & ind ividual compartment configurat ions. A single tower (cabinet shell) is $1,250 with cost of paid or free inserts add itiona l.

r---- , I ((I

PAID door plus insert box add $525.00 per compartment NOTE: as newspapers cont inue to increase their Dai ly and Sunday rates it may become necessary to go with an electronic coin mechanism as opposed to mechanical which would add another ($100.00) in cost to each paid insert, but provide for greater flex ibil it y.

NOTE: W ith exception to nuts, bolts, fasteners and door handles the modular is all r ust-free aluminum, EXCEPT for the paid door assemblies which are steel. They are manufactu red by K-Jack Engineering.

Paid door compart ment s include coin mechanisms and are factory-configured before shipment to the app ropriate Daily/Sunday rates of t he individ ual papers. Price plates denoting t he same are also affixed t o each unit .

leadtimes for delivery vary as component parts for the modulars are manufactured in minimum quantity production runs to achieve optimum cost efficiencies. Typical delivery runs about 12-16 weeks from date of order.

REFER TO THE SEPARATE NEWSSTAND INSTALLATION GUIDE FOR ADDITIONAL TECHNICAL INFORMATION.

page 2

5

City Council Regular Meeting 1.G. Meeting Date: 11/28/2018

SubjectAPPROVE AMENDMENT NO. 1 IN THE AMOUNT OF $131,353 TO THE PROFESSIONALSERVICES AGREEMENT WITH RICONDO & ASSOCIATES FOR AIRLINE LEASE ANDTERMINAL CONCESSION SERVICES:RECOMMENDATION:

Approve Amendment No. 1 in the amount of $131,353 to Professional ServicesAgreement No. A6938 with Ricondo & Associates.

1.


Attachments1G Amend 1 Ricondo & Assoc. Agr.

City Council Staff Report Date: November 28, 2018 CONSENT CALENDAR

Subject: APPROVAL OF AMENDMENT NO.1 IN THE AMOUNT OF $131 ,353 TO THE PROFESSIONAL SERVICES AGREEMENT WITH RICONDO & ASSOCIATES FOR AIRLINE LEASE AND TERMINAL CONCESSION SERVICES (A6938)


Initiated by: Aviation Department

SUMMARY

This action will approve an amendment to the Professional Services Agreement with Ricondo & Associates, .to provide additional consulting services related to airline lease and terminal concession document preparation and coordination.

RECOMMENDATION:

1. Approve Amendment No. 1 in the amount of $131,353 to Professional Services Agreement with Ricondo & Associates, (A6938); and

2. Authorize the City Manager to execute all documents.

BUSINESS INTEREST DISCLOSURE

A search of records on the California Secretary of State website identifies Ricondo & Associates, Inc., as an Illinois corporation . According to a Statement of Information filed on July 9, 2018, the listed corporate officer is: Ramon Ricondo as CEO/Secretary/CFO. as well as its Owners/Board of Directors (Pete Ricondo, R. Douglas Trezise, James T. Jarvis, John C. Williams, Joseph A. Huy, Shawn M. Kinder, Geoffrey A. Wheeler, Colleen E. Quinn, and Paul D. Hanly) . In addition to Ramon Ricondo, Pete Ricondo, R. Douglas Trezise, James T. Jarvis, John C. Williams, and Joseph A. Huy each own more than five percent of the shares of the company.

BACKGROUND:

On December 7, 2016, the City Council approved a Professional Services Agreement with Ricondo & Associates to provide a variety of financial analysis related to the Airport, which included the following tasks:

II.EM NO. __1 . G .

City Council Staff Report November 28, 2018 - Page 2 Authorize Increase to POs for South Coast Emergency Vehicle Service

Task 1 -Airport financial feasibility analysis- $47,503 Task 2- Passenger Facility Charge (PFC) application preparation- $60,736 Task 3- Customer Facility Charge (CFC) program preparation- $110,466 Task 4- Financing preparations, and associated incidental costs- $90,720

The PFC application process (Tasks 1 and 2) was successfully completed using Ricondo & Associates in April 2018 to secure a key funding source for the upcoming Airport Ticketing Modernization Project. A second major airport project on the horizon that will include the financial expertise of Ricondo & Associates is the Car Rental Facilities expansion. This project will require leveraging the Airport Customer Facility Charge (CFC) to fund the project.

On the basis of their success with these services, staff recently requested a proposal from Ricondo & Associates for additional services related to the Airport.

ANALYSIS:

The additional tasks for consideration involve two major airport.tenant agreements that will be up for renewal next year. The Airline Use & Lease Agreement (AULA) new term begins in July 2019 and the Food-Beverage-Gift Concession contract term in November 2019. Staff is recommending utilization of Ricondo & Associates professional expertise on both of these leases to optimize these critical business arrangements moving forward. The full scope of services is attached and includes the following:

Task 5 - Concessions Program & Lease • Identify program goals and objectives • Review all existing documentation • Review FAA compliance parameters and coordinate their input • Data collection, analysis and benchmarking with industry standards • Concession space analysis both existing and future • Document composition assistance • Support during request for proposals • Feasibility of program

The current concession lease agreement was completed in 1999 with ·the development of the Bono Concourse, with subsequent amendments that followed. Ricondo's input will assist in the development of the Concessions Request for Proposal (RFP) and identify potential increases in revenue streams that will offset growing airport expenses in the future. The professional independent analysis includes supportable space analysis and development of comprehensive leasing strategy to create a more dynamic shopping and dining environment. Due to robust passenger growth at the airport, Ricondo will prepare updated projections and recommend a financial pro forma that will be included in the Request for Proposal so that the program's goals are addressed.

2


Task 6 -Airline Use and Lease Agreement {AULA) • Data collection and review of all existing documentation • Identify goals and objectives • Provide current industry standards • Prepare various modeling examples for consideration • Develop rates and charges calculations • Evaluate keys issues, prioritize details and finalize expectations • Recommendation for key lease events covering the next five-year term • Prepare draft documents for review and approval

The consulting work associated with Task 6 will provide an evaluation of the current Airline Use & Lease Agreement (AULA). Ricondo will evaluate costing alternatives and review the local goals and objectives to ensure the future airline lease model captures expected revenues while guaranteeing that airline rates and charges are competitive and creating an attractive market for commercial airline service growth.

Ricondo has already provided important professional assistance with the complex PFC application. This firm is nationally recognized and has extensive experience with similar projects at various airports across the country and has a proven record of projects' accomplishment. To insure the Ricondo fees for these services were reasonable, staff compared similar projects at Nashville, Indianapolis, Tampa, and Dallas, and found the scope and fees to be comparable. The following identifies the cost for each of the two additional tasks:

Task 5 -Concessions Program and Lease Analysis - $79,928.00 Task 6- Airline Use and Lease Agreement (AULA) Review- $51,425.00

On Wednesday, November 14, 2018, the Airport Commission voted in favor of recommending this item to City Council for consideration.


Section 15061 (b)(3) of the California Environmental Quality Act ('_'CEQA") Guidelines exempts activities that are covered under the general rule that CEQA applies only to projects that have the potential to cause significant effects on the environment. Where it can be seen with certainty that there is no possibility the activity in question may have a significant effect upon the environment, the activity is not subject to CEQA. The requested action itself will not result in any new direct physical impacts to the environment. Therefore, the requested action is considered exempt from CEQA.

FISCAL IMPACT:

These new leases will continue to produce essential long-term airport revenues and preserve the collaborative and business friendly environment for these key stakeholders.

3


It is likely that th is independent analysis will yield additional opportunities for new or increased revenue growth to support the increasing airport expenditure budget.

Funding of this professional services contract is available in account 415-6002-43200 for $131,353.00.

SUBMITTED:

Thomas P. Nolan, A.A.E. , Executive Director, Airport

Attachments:

1. Ricondo & Associates Amendment

Marcus L. Fuller, MPA, PE, PLS Asst. City Manager/City Engineer

4

ATTACHMENT 1

5

AMENDMENT NO. 1 TO AGREEMENT NO. A6938 RICONDO & ASSOCIATES

WITH PALM SPRINGS INTERNATIONAL AIRPORT

THIS FIRST AMENDMENT is made and entered into as of the 28TH day of November 2018 by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation rcity"), and Ricondo & Associates an Illinois corporation (herein "Consultant") is hereby effective November 28, 2018 as follows:

RECITALS

WHEREAS, the City owns and operates Palm Springs International Airport ("Airporttt) located in Palm Springs, California for the convenience of the general public.

WHEREAS, on January 2, 2017 the Professional Services Agreement No. A6938 was entered into for professional services for financial planning associated with Palm Springs International Airport Master Plan projects; and

WHEREAS, Consultant and City desire to enter into this Agreement to study and plan the Airport agreements associated with the airlines and with the restaurants and gifts shops operated at the Airport, upon the terms and conditions herein; and

In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows:

WHEREAS, the parties wish to amend the Agreement pursuant to the terms of Amendment No. 1 as follows:

NOW, THEREFORE, for providing necessary funding to provide adequate compensation for the contracted hours necessary for the profess~onal services for the additional work as assigned in Task 5 and Task 6. The parties agree as follows:

AMENDMENT NO. 1

1. Task 5 -In Terminal Concessions Consulting Services $79,928.00

2. Task 6- Airline Negotiation Consulting Services $51 ,425

3. Section 9.3 of the Agreement is hereby amended in its entirety to read as follows:

Covenant Against Discrimination. In connection with its performance under this Agreement. Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical

6

or mental disability, or medical condition (each a "prohibited basis''). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.

4. The true and correct recitals above are incorporated herein by this reference.

5. The amendment shall allow a total project sum for Task 5 and Task 6 of $131,353.00 for services relating to the professional services agreement. Amended contract amount for all Tasks is $440,778.

6. Except as previously modified herein, all other provisions of the Agreement shall remain unmodified in full force and effect.

(SIGNATURE PAGE FOLLOWS)

7

IN WITNESS WHEREOF, the City and the Consultant have caused this Agreement to be executed the

day and year first above written.

ArrEST: CONTENTS APPROVED:

CITY OF PALM SPRINGS, CA

By ____________________ _ By ______________________ __

Anthony Mejia, City Clerk David H. Ready, City Manager

Date:-------------- Date:----------------

APPROVED AS TO FORM: APPROVED BY CITY COUNCIL:

By ____________________ __ Date: ___ Agreement No. __ _

Edward Z. Kotkin, City Attorney

Date: -------------------CONSULTANT

Name: _____________________ __

Check one: _lndividuai_Partnershlp _Corporation

Corporations require two notarized signatures: One signature must be from Chairman of Board, Presi

dent, or any Vic~ President. The second signature must be from the Secretary, Assistant Secretary,

Treasurer, Assistant Treasurer, or Chief Financial Officer.

Address:

By: ______________ _ By: _______________ _

Signature (notarized) Signature (notarized)

Name:. _________________ __ Name: ____________________ _

Title:. _____________ _ Title: ________________ _

8

CALIFORNIA ALL·PURPOSE ACKNOWLEDQMENT CML CODE§ 1180

A ft01DrY public « 01her affica' ~ Ilia m~ verifiao rit 1M ldemity of the idvidaDI v.f1o aipd the cfac:ument tD which til ClltHi::ata is aiiDChed. and not 1h8 ~ 8CI:UniC1o f1l vali:ity of1hU docunant.

State of California Ccuntyat _________ _

On _______________ bd~me. __________________________________ _

D.fl8

peraonalty appsiUBd ----------------------

who pravecl to me on the bGsia of cutiafoctuty evidence to be tha penon(a) whooe ~ lalare zubecribad to the within Rstrument and ecknowiedgad to me that hafahallhay axac:uted thlt mma in hisJherl1heirauthotfzed capsdly(iea). and ttm by hf::l.ltwM1ar aignatwe(a) on the iMtrument the penson(a). ar tne entity upon behalf of-which the pet8an(e) acted. exacuted the in:strument.

I certify under PENALTY OF PERJURY andar th9 laW8 of the state af Cldifamfa that the foregoing paragruph ia true und canec:t.

wmESS my hand and official mat

~~---------------Slgn.ttur8 of Noltuy Public

--------------------------o~---------------------------'Thour1h INa HCfion Ia optimal. oornpleting fhitJ itrfonrlllfion can deter altfll'lfllon of the document 01

tlrudi/Qnt maltat::htrNm! ol thO fatm fD an unintsnded ~

Deacriptian of Attacbacf Document

liUe or Type of Document Docunart Date: ----------Nwnbar of Pagea: ___ Signer(o) other Than Named Above: -----------

Capacity(Joa) Claimed by Slgner(a)

Slgner"e Nama:--=--------0 Ootponda Oflic8r -litle(a): -----0 Partner - 0 Umitacl [] Oenerul 0 lncrnridual 0 Attorney In Fact 0 Trwtee 0 GIBrdian ar Ccln8orvatcr O~r. _______________ _

Signer Ia Rlpreeenting: ----------

Slgner·a Nama: 0~~~--~~~~~-----------0 Partner - C l..imted (J Genarul CJ W!Mdual CJAttomiJy in Fact [J Truatee [J Ga.archn or Canaarwtar COther: _______________ _

Signer Ia Repasenting: --------

xo.u . .-.:x:a:«Q.ec;e;ccec; axunncuc a cco.e ...... :z.a:rm.ec:ecec =»= CtGCQ.O.::C.:&.t

02014 National Notary Anocbltian • www.NatianaiNotlty.org • 1.aoG-US NOTARY (1-8Q0.878-a27) Ham tSG07

9

IIIIIUII RIC 0 N Doc

October 30, 2018

Mr. Mark Jucht Airport Administration Manager Palm Springs International Airport 3400 E. Tahquitz Canyon Way Palm Springs, CA 92262

TASKS

RE: Phase 1- In-terminal Concessions Consulting Services

Dear Mark:

Ricondo & Associates, Inc. (Ricondo) is pleased to submit the attached scope of work, budget and schedule to provide in-terminal concessions consulting services for the Palm Springs International Airport in accordance with Section 1.8 of its January 2, 2017, Professional Services Contract with the City of Palm Springs.

If the scope, budget, and schedule for this assignment are acceptable, it is respectfully requested that the

City Manager issue written authorization to Ricondo. We will commence work upon receipt of this written

authorization. We look forward to working with you on this assignment Sincerely,

RICONDO &ASSOCIATES, INC.

Bonnie A. Ossege Vice President

ENCLOSURES

cc: , 6070980.1170

Bryan Elliott

Rawley Vaughan

10

PALM SPRINGS INTERNAnONAL AIRPORT

312 WAlNUT STREET I SUITE 3310 I CINCINNATI, OH 452021 iEL 513·651·4700 I WWW.RICONDO.COM

OCTOBER 30, 2018

DRAFT

PALM SPRINGS INTERNATIONAL AIRPORT PHASE l-IN-TERMINAL CONCESSIONS CONSULTING SERVICES SCOPE OF WORK

The City of Palm Springs (City) has requested that Ricondo & Associates, Inc., (Ricondo) provide airport business and financial planning consulting services related to the anticipated tender process for concession agreements to operate in·terminal shops and restaurants at the Palm Springs International Airport (Airport). For this phase of work. Ricondo will assist the City with evaluating its program, develop goals for a new business and operating relationship with concessionaires, project the optimal amount and location of concessions space during a future program, and compose tender documents to communicate the opportunity to the conce~sions industry. ·

This initial phase of work will be followed by implementation of negotiations with the selected concessionaire(s) culminating with the development and execution of a new concession agreement(s). To assist the City with this Phase I project, Ricondo proposes the following scope of work:

1. LEASING STRATEGY DEVELOPMENT · In short, the purpose of a tender document is to give potential respondents great confidence in the ·opportunity

being advertised. In the context of in-terminal concessions, the City should be clear in both what it expects from its concessionaire·partner(s) and what they should expect from the City. To this end, it is critical that the City go through a planning process to define its goals O.e., what it wants), which should guide its management approach and leasing strategy (i.e., how it intends to get what it wants). The scarcity and consequence of these concessions opportunities warrants such thoughtfulness.

Ricondo would facilitate such a planning process during a period of kick-off meetings in Palm Springs to initiate this phase of work. The attendees of these meetings would be determined by Airport staff and should include a variety of key stakeholders. We would try to clarify the City's goals into a list of no more than five.

One goal that is federally·mandated pertains to the City's Airport Concession Disadvantaged Business Enterprise (ACDBE) program. Ricondo would assist the City in communicating its program to the FAA, which could include matter pertaining to offering an exclusive long·term agreement and demonstrating ACDBE program compliance. If desired, we can work with a subconsultant who specializes in ACDBE issues; however, its effort is NOT INCLUDED in the Phase I budget, and Ricondo can work with City staff to determine an acceptable scope and budget to engage such a subconsultant.

Next, we would discuss with the City the main options for its contractual approach. For example, the City could package the concessions program into one, two, or more opportunities. Also, for example, the locations could be packaged by category, perceived upside, or other criteria. The "right" approach is t_he one we determine to be the most likely to generate the result that the City wants.

Ultimately, the work performed in task 1 would be synthesized in a memorandum, to document the goals and resulting policies. Ricondo would prepare a draft memo for review with City staff before finalizing the document.

2. SITUATIONAL ASSESSMENT The situational assessment largely consists of the collection and analysis of historical financial data from the Airport's in·terminal concessions. This task would happen at the same time as task 1, Leasing Strategy Development.

Ricondo would begin by analyzing City data, such as sales, square footage, enplanements, and Airport revenue. We would calculate a variety of key performance indicators to better identify weak or strong concepts or locations. Scope of Work I 1 I Phase I -In-terminal Concessions Services

11

fJALM SPRINGS INnRNATIONAL AIRPORT OCTOBER 30, 2018

DRAFT

These performance indicators feature statistics such as sales per square foot, square feet per 1,000 enplanements and effective percentage rent, and will be used to assess the current state of the Airport's concession program. Also, the situational assessment would include the evaluation of the existing concession agreements (with exhibits and amendments), focusing on rental calculations and any records of capital investment

Ricondo will benchmark certain of the Airport's concession-related metrics against up to 20 comparative airports. Given the pronounced seasonality and time-of-day fluctuations of air traffic activity at the Airport, the benchmarking can target comparators through analyses that dig deeper than the typical, annual metrics.

Finally, Ricondo would appraise non-financial features of the concession program, such as primary passenger flows, location configuration, adjacency to other functional areas, wayfinding, signage and design. Such an appraisal would be performed in-person and occur during the same trip as mentioned for task 1.

Task 2 would be documented by a report in PowerPoint formal

3. SUPPORTABLE SPACE ANALYSIS A successful concessions program can best be achieved by building concessions spaces that are the correct size, in locations that are most convenient for passengers, and by creating profitable locations for concessionaires. Ricondo has developed a simple spreadsheet-based tool to perform a supportable space analysis-to estimate the optimal amount of concessions space in the future based on demonstrated demand in the past. In this sense, a supportable space analysis is a •bottom-up• projection, compared with the •top-down· approach of projecting space requirements based on planning-level ratios.

With a focus on historical trends, Ricondo would incorporate these various statistics with the most current passenger forecast to generate a supportable space analysis by zone and by category. A supportable space analysis can be considered a •right-sizing• exercise for the concessions program. Regardless of the existing amount of concession space at the Airport, or its current allocation, this analysis should indicate (roughly) the optimal amount of concessions space, where it should be located, and, at a high level, in what mix of concepts.

The estimation of supportable space for a Duty Free offering can create a challenge, such as for the Airport with its limited/Canadian international service. A Duty Free store need not occupy a lot of space, but an airport concession or properties manager w~uld want t~e space to be flexible, with the hope that peak-hour international departures increase in the future. Another spatial concern would be Duty Free's adjacency to complementary unitS, such as

. Specialty Retail or a bar. ·

The results of the supportable space analysis would be shared over a·Skype or GoToMeeting conference calL

If the analysis indicates that new concessions space is needed, Ricondo has facility planners who can prepare exhibits indicating where such new space could go. This work element is NOT INCLUDED in the base Phase I budget; however, if necessary, there are two incremental options: One, if scaled CADD fifes (such as as-builts) or similar electronic schematics are shared with Ricondo; and, Two, if such base files are not available.

4. TENDER DOCUMENT COMPOSITION Based on the contractual approach and the supportable space analysis, Ricondo would work with City staff to prepare a pro forma for each concessions location to be included in the opportunity. The financial assumptions of the pro forma would be based on our industry knowledge as well as any anecdotal experience at the Airport While this effort would not be included in the tender documents, it would help frame the City's thinking about the value of the opportunity on offer, and therefore what the City in tum should expect from respondents.

ScopeofWcrtc 12 I Phase 1-ln·terminal Concessions Services

12

PALM SPRINGS INTERNATIONAL AIRPORT OCTOBER 30. 2018

CRAFT

Ricondo would help the City compose the concessions RFP(s). It is our understanding that the City will begin this effort using a recent RFP by another California airport as a tempfate. We then would adjust the key provisions of the RFP to reflect the particular business opportunity at the Airport. For example, the evaluation criteria by which responses would be scored should reflect these goals established in task 1.

An important attachment to the RFP is a draft concession agreement, and Ricondo would tailor the document to reflect the particular business opportunity at the Airport

5. DOCUMENTATION FOR CITY LEADERSHIP Ricondo would prepare a presentation for an audience of various City leaders, such as City Council or the City Manager, to explain the concepts and issues addressed in tasks 1, 2 and 3. This task includes one trip to the City.

6. SCHEDULE AND BUDGET Ricondo proposes to perform the scope of work on a time and material basis in accordance with its January 2, 2017, Professional Services Agreement with the City for a fee of $79,928.00. A breakdowr'! of this budget, including hours by employee category is provided on the following page.

Regarding the options for Subtask 3, Option One would have an additional fee of $5,078.00, and Option Two a further $8,440.00.

Ricondo expects to complete this scope of work with in six (6) months from the date of the City's written authorization to initiate work on this project. While this timeframe is subject to change based upon the City's/Ricondo's availability for meetings and conference calls, it is assumed tasks 1 and 2 would be completed within six (6) weeks from the City's notice-to-proceed.

7. SUBSEQUENT EFFORTS IN PHASE II (NOT PART OF THIS SCOPE) Subtasks 1 through 4 (presented above) reflect the types of services being requested. If the City requests additional support from Ricondo to continue the implementation of new concession agreements, those efforts could include the following subtasks:

• Attending community outreach meetings, such as pre-proposal meetings

• Responding to questions or requests for clarification from potential respondents

• Reviewing or evaluating proposals

• Preparing post-issuance materials for the City, such as a presentation summarizing the evaluation process and selection recommendation

• Negotiations with selected respondent(s)

Scope of Work l3l Phase 1-ln-tennlnal Concessions Services

13

PhaN I • lft.tenalnaJ Concessions Consulting Scmces

Task1 ·1.-lfng Slrmgy Dlnlopment flaMing pnxess to detennine ptOgrBm goals FAA prtXeSSIS

ContractUal approach

Memorandum to document 1he leaslng strategy

Subtolal· Task 1

Talc Z • Sltuatloaal Ats'ISIIMnt Data ccUecdon and ana~is

Benchmarking

Rt!!View of existing CDilCI!SSion agll!ttments

Evaluation of the concessions spate

RISUrts (In MS PowerPo!nt,

SUbtot.ll ~Taste Z

TASK 3 • ~Spac.Anllysls Cafculale futunt space RqUintments for F&B and RetaD

Calculate futun! space requirements ror Duty ~

Generate plannfng-fewJ dlagrams

Subtotal· Task J

TASK 4 • Tendar Documlnt Compasltfon Prepare tinande' pro forma

Assist with the drafting of the RFP doalnent

Assist with the drafting of the dn!ft concession agreement

Subtotal· Teslc 4

TASIC S • Documentation far CJty Leadesshfp Prepara pn!SeJUtian (in MS Powe1Po1nt) Meet City leadeBhlp

Subtatal· Task 5

Total Proposal Hours .Tetat lbtit Lafuw ~l!teb ~ ~

City of Palm Springs - Palm Springs International Airport Phase I - ln-termiul Concessions Consulting Services

Rkondo & Assocfata, Inc.. Project Budget October 30, 2018

$290 $270 $250 $230 $210 $159

UntiDC

MANAGING seHIOR TECH/

.. ~ ... --· .

TOTAL TRAvn TOTAL ~ rMRrnOR mNmLTA~LTANTmNmLTANT_ 4ftMtN___ HOUH ______I_ABOil______ ~---- _CfKT

FEE

- 20 . . . - 20$ 5,400 s 1.250 $ 6,650 . 8 . . .. . 8 s 2.160 s . s 2.160

- 20 - . .. .. 20$ 5,400$ . $ 5,400

2 24 - - - 4 30$ 7,696 s - s 7.696

-2 72 - - - 4 78$ 20.656 s 1,250 $ 21,106

- 16 . - 16 - 32 s 7,680 s - s 7,AO

- 4 - . 8 - 12 s 2.760 s - s 2.760

-- 4 - - - .. 4 s 1.0SO s . s 1,080

- 8 . . - . 8 s 2.160 (1nTask 11 $ 2,160

2 16 .. . . 4 22 s 5,536 s . s 5,536

-2 .t8 - .. 24 4 71 $ 19.216 $ .. $ 19,216

2 16 - . . - 18 $ 4.900 s . s 4,900

- 12 - - .. - 12 $ 3,240 s . $ 3,2<10

- 4 - 16 . . 0 $ 4,760 s - $ 4,760

-2 32 .. 1& . - so $ 8,140 $ . $ 1.140

- 8 - - 16 .. 24 s 5,520$ - s 5,520

1 24 . - - - 25 s 6.770 s - $ 6,770

1 24 - . - - 25 s &,770 s . s 6.770

-2 56 .. . 1& - 74 s 19,060 $ . $ 19,060

.. 16 - - - 4 - $ 4.956 s - s 4,956

- 20 . - - - • s 5,400 s 1.250 s 6.650

- JG - - - " . s 1D.JH $ 1,Z50 $ 11,606

- 8 244 - 1& 40 12 260 ______H__!2fl IM_AAil__ _ ____In nao CRAM_~-- n7.AH________ _ _______l2_Mft __ t:n~gm

14

111111111 RICO N D 0"

October 18, 2018

Mr. Mark Jucht Airport Administration Manager Palm Springs International Airport 3400 E. Tahquitz Canyon Way Palm Springs, CA 92262

TASK6

RE: Phase 1- Airline Negotiation Consulting Services

Dear Mark:

Ricondo & Associates, Inc. (Ricondo) is pleased to submit the attached scope of work, budget and schedule to provide airline negotiation consulting services for the Palm Springs International Airport in accordance with Section 1.8 of its January 2, 2017 Professional Services Contract with the City of Palm Springs.

If the scope, budget, and schedule for this assignment are acceptable, it is respectfully requested that the

City Manager issue written authorization to Ricondo. We will commence work upon receipt of this written

authorization. We look forward to working with you on this assignment Sincerely,

RICONDO & ASSOCIATES, INC.

Bonnie A. Ossege Vice President

ENCLOSURES

cc: 16070980.1170 Bryan Elliott

15

PALM SPRINGS INTERNATIONAL AIRPORT

312 WALNUT STREET I SUITE 3310 I CINCINNAH OH 452021 TEL 513·651·-1700 I WWW.RICONOO.COM

PALM SPRINGS INTERNATIONAL AIRPORT

OCTOBER 18. Z018

DRAfT

PHASE I - AIRLINE NEGOTIATING STRATEGY CONSULTING SERVICES SCOPE OF WORK

The City of Palm Springs (City) has requested that Ricondo & Associates, Inc. (Ricondo) provide airport business and financial planning consulting services related to the review, evaluation, and development of a new business arrangement with the airlines serving the Palm Springs International Airport (Airport). The City's current Airport Use and Lease Agreement (Airline Agreement) expires on June 30, 2019: In addition, the City is undertaking a renovation and modernization project in the airline ticketing wing area of the Airport's terminal building which will affect the assignment and potential classification of airline leased space.·

It is typical for negotiations with the airlines to take approximately 12-18 months to complete and another 4-6 months for execution of the documents to occur. Given this time horizon, coupled with the fact that the City's current Airline Agreement wifl expire in eight (8) months and the proposed construction timing is expected to be completed within the next three (3) years, Ricondo has prepared this scope of work assuming that the City will pursue a phased approach related to the development and execution of a new Agreement

For the initial phase of work (Phase I), Ricondo will assist the City with developing an amendment to its existing Airline Agreement extending the Term to an agreed upon period aligned with completion of the ticketing wing renovation project; preparing a financial projection for the Term extension utilizing the current rate making methodology; evaluating its current Airline Agreement and airline ratemaking methodology; developing goals and objectives for a new business and operating relationship with the airlines; and establishing the framework for negotiations with the airlines to achieve the City's goals and reach an equitable agreement

Phase It services would consist of implementing the negotiating strategy developed in Phase I culminate with the · development and execution of a new airline lease and operating agreement to become effective upon completion of the Airport's airline ticketing wing renovation project.

To assist the City with this Phase I project, Ricondo proposes the following scope of work:

1. DATA COLLECTION In 2017, Ricondo developed a financial model for the City that depicts historical and projected financial outcomes for the Airport for the period fiscal year (FY) 2016~2028 based upon the City's current rates and charges methodology. This model will be used as the basis for financial analyses required in subsequent tasks. Ricondo will gather data including financial information for FY 2017- 2019 (operating and non-operating revenues, operating expenses, and debt service), funding sources for the Airport, passenger facility charge (PFC) program status, customer facility charge (CFQ program status, activity data by airline for FY 2017·2019, the Airport's future five-year capital improvement plan, and details of leases related to the Airport (concessions, cargo, aviation, parking, maintenance, rental car operations, etc.) that can assist in projecting future operating expenses and nonairline revenues. Ricondo wil.l also coordinate obtaining operating expense projections (utilities, baggage device maintenance, etc.) and space diagrams from the ticketing wing renovation design team to model the cost structure of the terminal upon completion of this project.

2. AIRPORT USE AND LEASE AGREEMENT AMENDMENT Ricondo will assist the City with drafting an amendment to its existing Airline Agreement that would provide for an extended term through completion of the Airport's airline ticketing wing renovation project. Ricondo will assist with

Scope of Wortc 11 I Phase I - Airline Negotiation Services

16

PALM SPRINGS INTERNAnONAL AIRPORT OCTOBER 18,2018

DRAFT

drafting the amendment and coordinating execution with the signatory carriers serving the Airport Rkondo will update the current financial model to develop projections for FY 2020 and FY 2021 under the current ratemaking methodology, using data for budget FY 2019 as the starting point Tables from the financial model will be presented to the airlines as part of the Airline Agreement amendment package.

3. DEVELOP BUSINESS DEAL METHODOLOGY AND ALTERNATIVES; DETERMINE COST CENTER ALLOCATIONS; FINALIZE TERMINAL SPACE MEASUREMENTS AND CATEGORIES Every airline lease and operating _agreement is different and should be structured to meet the unique needs of the airport sponsor. The rates and charges methodology will be a key component of the City's new Agreement and the City should expect to evaluate various alternatives to determine the methodology that best meets its financial goals while maintaining a level of acceptable risk. Ricondo will assist the City in developing alternative airline rates and charges methodologies to determine the approach best suited to the City. This process will also include the development of alternative approaches to revenue enhancement, preparation of cost centers, allocation of direct and indirect expenses/revenues, and a reexamination of funding sources for capital improvements. Although this task can require significant effort, it will be critical in helping to achieve many of the City's goals and objectives. Additionally, Ricondo will create various rates and charges methodologies for the City's consideration to incorporate into the future Airline Agreement

Ricondo will coordinate with the City to develop a cost center structure and allocation methodology that wirl segregate airline costs I revenues from nonairline costs I revenues. Using this cost center structure, Ricondo will prepare a first draft of a financial model for the period FY 2019- FY 2026. Ricondo will develop up to three (3) rates and charges scenarios: (1) continuation of the City's current rate methodology; (2) a full compensatory approach; and (3) _a hybrid approach that incorporates credits to the airline rate bases. Each methodology will include projections of:

• Enplanements

• Landed weight

• Operating expenditures

• Capital Improvement Program (CIP) expenditures

• Funding Sources for the proposed CIP

• Amortization of City-funded CIP expenditures

• Non-airline revenues

• Airline Rates & Charges

• Airline revenues

• Airline cost per enplanement

• Net remaining revenue

• Debt service coverage (if applicable)

• Airline by Airline Summary

The models will include calculations Qf landing fees and terminal rental rates as well as other charges such as loading bridge fees, per use fees, baggage fees, security fees, common use charges, or others as deemed appropriate by the City. Ricondo will submit an electronic version to the City and schedule a conference call to review the

Scope of Work 121 Phase 1-Alrflne Negotiation Services

17

PALM SPRINGS INT£RNAT10NAL AIRPORT OCTOBER 18, 2018

DRAFT

assumptions and outcomes of the model, including each of the three ratemaking methodologies. Once City feedback is obtained, Ricondo will update the financial model to incorporate changes discussed.

4. REVIEW CURRENT AIRLINE AGREEMENT Ricondo will review the existing airline lease and operating agreement to identify potential aspects of the current deal that may need to be updated. Ricondo will prepare a summary outline including discussion points for use by the City as it develops its new Agreement.

5. DEFINE THE CITY'S GOALS AND OBJECTIVES AND DEVELOP A NEGOTIATING STRATEGY

Upon completion of Tasks 1-4, Ricondo will meet with the City/Airport staff to assist in identifying its financial and operating goals and objectives for the new Airline Agreement This discussion will include determining the rates and charges methodology to be utilized going tor\vard, identification of provisions that may need to be added, deleted, or revised from the existing Airline Agreement; financial and operating challenges anticipated at the Airport; legal and internal financial targets; control over future capital (i.e., majority-in-interest [Mil] clauses); and operating goals (control of gates, treatment of affiliate airlines, City versus tenant responsibility for maintenance and operations, desired flexibility of facilities, etc.). In reviewing the existing Airline Agreement, Ricondo will identify and address any areas of concern, including the level of risk the City is willing to assume. Once defined, the goals and objectives should be prioritized, identifying the perceived amount of leverage the City will have in the negotiation process. Upon identification of the City's key goals, Ricondo will work with the City/Airport staff to develop a negotiating strategy that will help achieve the goals and objectives previously identified.

Following this meeting, Ricondo will prepare a summary document describing the selected airline rates and charges methodology which will define the key terms of the business deal. This summary document will serve as a guide for the initial negotiating session with the airlines and will include financial tables and a matrix that provides a summary of key business terms and conditions. Negotiation of the new Airline Agreement is not included in this scope of work.

6. SCHEDULE AND BUDGET Ricondo proposes to perform the scope of work on a time and material basis in accordance with its January 2, 2017 Professional Services Agreement with the City for a fee of $51,425.00. A breakdown of this budget, including hours by employee category is provided on the following page. ·

Ricondo expects to complete this scope of work within five (5) months from the date of the City~s written authori~ation to initiate work on this project. While this timeframe is subject to change based upon the City's/Ricondo's availability for meetings and conference calls, it is assumed the data collection and analysis phase · will be completed within two (2) weeks from the City's notice-to-pro.ceed; a draft amendment to the existing Agreement and the existing rates and charges model can be prepared within six (6) weeks from ~he City's noticetoproceed; the development of the business deal and alternatives, including both drafts of the financial model will require eight (8) weeks following the collection and analysis of data; and the review of the airline agreement, onsite meeting, preparation of the final project summary, and project closeout will be completed in four (4) weeks from the City's acceptance of Ricondo's analysis of alternative ratemaking approaches. A detailed schedule will be prepared by Ricondo and presented to the City upon its issuance of a notice-to-proceed.

Scope of Worlc 13 I Phase I - Airflne Negotiation Services

18

Oty of Palm Springs - Palm Springs lntemaUonal Airport Phase I - Afrl(ne Negotiating Strategy Consulting Services

Ricondo & Associates. Inc. Project Budget October 18, 2018

$290.00 $270.00 $250.00 $230.00 $210.00 $159.00

MANAGING SENIOR TEOt/ TOTAL tRAVEl. TOTAL

OFRSSB ell!££t!!R ~B!lTel !isaillli6al gwJIIli6ra e!!!l!l! tl21111! lABOR EXPENSES msr FEE

Phase I - Altftne Negotiating Strategy Consulting Servkes

T.a1 • Dm CDIIectfon

Prepcntlon of data request and review of infonnation 2 4 6$ 1,660 -s 1,660

Subtotal - Task 1 z .. 6 s 1,6&0 s $ 1,660 Task 2 ·Airport Use and Lease Agreement Amendment

Update Model to Current Fiscal Year 0 l 4 24 0 0 30S 7,060 s s 7,060

Prepare drah Amendment & cransrnittalletter for submission to SlgnatOf)' Alltines 6 7 s 1,910 s s 1,910

Sutltotal· Task Z B 4 24 0 0 37 s 8.970 s s 8,970

Task 3 • Develop Business Dui.Methadology/AitengtJves

Prepare Model lnpuu 4 4 16 24 s 5,760 s s 5,760

Develop Rates and Charge Calcufations and Cash Flows - 3 Alternatives 2 8 4 56 70 s 16,620 s 16.620

Confmnce (.all to Discuss Model 2 4 4 4 14 3,580 s 3.580

Subtotal -Task 3 .. 16 12 76 0 0 108 $ 25,960 $ s 25,960 Talc 4 • Review Current AhUne Agreement

Reo.riew lhe Agreement 1 4 s s 1.370 s s 1,310

Evaluate key issues 2 6 8 s 2.200 s s 2,200

Subtot•1· Taslc • 3 10 13 $ 3,570 $ s 3.570 T.ak 5 ·Define City's Goals & Objecdves and Negotiating Stnategy

Prepare for and meet with Aitpoft Mlnegement to identifr golfs and objectives 8 12 20 $ 5.560 s 2,42S s 7.985

Evaluate and prioritize lcey goats and objectives 2 10 12 s 3,280 s s 3,280

SUbtotal • T.ak 5 10 22 32 s 8.840 $ 2.425 s 11.265 Total Proposal Houn 20 60 16 100 196

TotAl Base Labor Costs & bpenses $5,800 $1&,200 $4,000 $23,000 so so $.49,000 s 2.425 s 51,425

SOURCE: Riccndo & ~a. Inc. Occober, 2018. 1 of1 11111812018

19

City Council Regular Meeting 1.H. Meeting Date: 11/28/2018

SubjectRECEIVE AND FILE REPORT RE: “FRIEND OF THE COURT” BRIEF FILED IN THE NINTHCIRCUIT COURT OF APPEALS, IN SUPPORT OF THE STATE OF CALIFORNIA, INUNITED STATES v. CALIFORNIA, A FEDERAL GOVERNMENT CHALLENGE AGAINST

RECENT STATE LAWS RELATED TO IMMIGRATION POLICY:RECOMMENDATION: Receive and file this report along with a true and correct copy of the brief filed.

Attachments1H Friend of the Court Brief Re Immigration Policy



SUBJECT: RECEIVE AND FILE REPORT RE: "FRIEND OF THE COURT" BRIEF FILED IN THE NINTH CIRCUIT COURT OF APPEALS, IN SUPPORT OF THE STATE OF CALIFORNIA, IN UNITED STATES v. CALIFORNIA , A FEDERAL GOVERNMENT CHALLENGE AGAINST RECENT STATE LAWS RELATED TO IMMIGRATION POLICY


BY: Edward Z. Kotkin , City Attorney

SUMMARY

On October 17, 2018, City Council approved a request by the County of Santa Clara to sign a "Friend of the Court" Brief filed in the Ninth Circuit Court of Appeals in support of the state's position in the United States v. California case, a federal government challenge against recent State laws related to immigration policy. At the request City Council th is report is provided to the Council and public with a copy of the Amicus Brief filed November 9, 2018 for the community of Palm Springs.

RECOMMENDATION :

Receive and file this report along with a true and correct copy of the brief filed.

STAFF ANALYSIS:

Councilmembers Kors and Holstege initially brought this litigation to the City Council agenda for action on May 16, 2018. The City previously signed a brief in the United States v. State of California case, opposing a motion by the United States for a preliminary injunction to block California legislation, primarily SB 54, as well as AB 450 and AB 103, from going into effect. These laws promote public safety, and foster trust between immigrant communities in California and local police. SB 54, known as the "California Values Act," signed by Governor Brown on October 5, 2017, limits state and local entanglement with federal immigration enforcement as implemented by the current administration.

The United States District Court for the Eastern District of Cal ifornia agreed with the position taken in the brief signed by the City, and denied the motion of the United States. The federal government appealed the District Court denial of its motion for an injunction to the Ninth Circuit Court of Appeals. On October 17, 2018 City Council gave direction to the City Attorney to sign

11·EM No ._ :l_ . H_. _

City Council Staff Report November 28, 2018 -- Page 2 Friend of the Court Brief in US v. California

the brief prepared by the County of Santa Clara, the County of Los Angeles and the City of Oakland in opposition of their appeal. The brief was filed with the Ninth Circuit Court of Appeals in the United States v. California case on November 9, 2018, see ATTACHMENT A.

The California Values Act (Senate Bill 54) offers California the opportunity to advance important privacy protections that curtail the flow of sensitive personal information about immigrants that fuels deportation. The California Values Act broadly prohibits local law enforcement from assisting in federal immigration enforcement. Among its provisions, the Attorney General's office is required to issue guidelines that ensure that personal information held in law enforcement databases is not used for immigration enforcement purposes. As outlined in the attached brief, it is the duty of local counties and cities to promote public safety and ensure its diverse communities can participate equally in civic life and access city services designed to ensure public safety for all community members without fear.

David H. Ready, Esq., Ph.D City Manager

Attachments:


A. Filed copy of United States Court of Appeals for the Ninth Circuit Brief of Amici Curiae, United States v. California, Case No. 2:18-CV-00490-JAM-KJN

2

ATTACHMENT A

3

Case: 18-16496, 11/09/2018, ID: 11083502, DktEntry: 54, Page 1 of 47

Appeal No. 18-16496

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

United States of America, Plaintiff-Appellant,

v.

State of California, eta/., Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

THE HONORABLE JOHN A. MENDEZ, JUDGE

CASE No. 2:18-cv-00490-JAM-KJN

BRIEF OF AMICI CURIAE 29 CALIFORNIA COUNTIES, CITIES, AND LOCAL

OFFICIALS IN SUPPORT OF DEFENDANTS-APPELLEES AND FOR AFFIRMANCE

MARGARET L. CARTER

DANIEL R. SUVOR

O'MELVENY & MYERS LLP

400 SOUTH HOPE STREET, 18th FLOOR

LOS ANGELES, CALIFORNIA 90071-2899

TELEPHONE: 213.430.6000

FACSIMILE: 213.430.6407

Attorneys for Amicus Curiae County of Los Angeles

BARBARA J. PARKER, CITY ATTORNEY

MARIA BEE

ERIN BERNSTEIN MALIA McPHERSON ONE FRANK H. 0GA WA PLAZA, 6TH FLOOR

OAKLAND, CALIFORNIA

TELEPHONE: 510.238.3601

FACSIMILE: 510.23 8.6500

Attorneys for Amicus Curiae City of Oakland

JAMES R. WILLIAMS, COUNTY COUNSEL

GRETA S. HANSEN

KA VITA NARAYAN

JAVIER SERRANO

70 WEST HEDDING STREET, E. WING,

9TH FLOOR

SAN JOSE, CA 95110 TELEPHONE: 408.299.5900

FACSIMILE: 408.292.7240

Attorneys for Amicus Curiae County of Santa Clara

4


CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae all are

political subdivisions or local officials, for whom no corporate disclosure is

required.

5

Case: 18-164961 11/09/20181 ID: 110835021 DktEntry: 541 Page 3 of 47

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATElVIENT ......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iv

INTEREST OF AMICI CURIAE .............................................................................. 1

ARGUMENT ............................................................................................................. 6

I. SB 54 REFLECTS CALIFORNIA'S CONSIDERED EXERCISE OF ITS HISTORIC POWER TO PROMOTE PUBLIC SAFETY, HEALTH, AND WELFARE ........................................................................... 6

II. THE FEDERAL GOVERNMENT'S ATTEMPTED COERCION OF LOCAL IMMIGRATION ENFORCElVIENT UNDERMINES PUBLIC SAFETY BY DISCOURAGING CO:Mlv1UNITY ORIENTED POLICING AND CIVIC PARTICIPATION BY IMMIGRANTS ................................................................................................ &

A. State and Local Control of Law Enforcement Is Integral to Promoting Public Safety and Fostering Trust Between Immigrant Communities and Police ...................................................... 9

1. Research confirms sanctuary policies' positive effect on public safety .............................................................................. 11

2. Courts recognize that entanglement between local law enforcement and federal immigration enforcement does not lead to safer communities ................................................... 20

B. State and Local Sanctuary Policies Promote the Health and Welfare of California Residents .......................................................... 23

1. Sanctuary policies support improved public health .................. 24

2. Jurisdictions adopting sanctuary policies promote stronger economies ................................................................... 2 7

11

6


CONCLUSION ........................................................................................................ 28

iii

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TABLE OF AUTHORITIES

Page(s)

Cases

City & Cty. of San Francisco v. Sessions, No. 17-04642-WHO, 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018) ....... 10, 20, 22

City of Chicago v. Sessions (City of Chicago II), No. 18-2885 (7th Cir. Aug. 28, 2018) .................................................................. 21

City of Chicago v. Sessions, 2018 WL 4268814 (7th Cir. Aug. 10, 20 18) ....................................................... 21

City of Chicago v. Sessions, 2018 WL 4268817 (7th Cir. June 4, 20 18) .......................................................... 21

City of Chicago v. Sessions, 321 F. Supp. 3d 85 5 (N.D. Ill. 20 18) ................................................................... 21

City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), vacated in part by, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 20 18) ................................................................... 20, 21

City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E. D. Pa. 20 17) ................................................................... 22

City of Philadelphia v. Sessions, 309 F. Supp. 3d. 289 (E.D. Pa. 20 18) ........................................................... 20, 22

Gonzales v. Oregon, 546 u.s. 243 (2006) ............................................................................................. 23

Nat'/ Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ............................................................................................... 6

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ............................................................................................... 6

Terrace v. Thompson, 263 u.s. 197 (1923) ............................................................................................... 6

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TABLE OF AUTHORITIES (continued)

Page(s)

United States v. California, 314 F. Supp. 3d 1077 (E.D. Cal. 2018) ............................................... 5, 10, 11, 20

United States v. Lopez, 514 U.S. 549 (1995) ............................................................................................. 28

United States v. Morrison, 529 u.s. 598 (2000) ............................................................................................... 6

Constitutional Provisions

Cal. Const. Art. XI, § 7 .............................................................................................. 7

Statutes

Cal. Gov't Code § 7284 ............................................................................................. 5

Cal. Gov't Code§ 7284.2(a)-(e) ............................................................................... 7

Cal. Gov't Code § 7284.2(b )-( d) .............................................................................. 23

Cal. Gov't Code § 7284.2(f) ...................................................................................... 7

Other Authorities

About Us, County of Alameda, CA, available at https://www.acgov.org/about/ (last visited Nov. 7, 20 18) ...................................................................................... 2

Advanced Search: Place of Birth By Nativity and Citizenship Status- 2017 American Community Survey 1-Year Estimates, U.S. Census Bureau, available at https:/ /factfinder .census.gov /faces/tableservices/j sf/pages/productview .xhtml ?pi d=ACS_17 _1 YR_B05002&prodType=table (last visited Nov. 7, 2018) .............. 2

Advanced Search: Annual Estimates of the Resident Population: April 1, 201 0 to July 1, 2017 2017, U.S. Census Bureau, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pi d=PEP _2017 _PEP ANNRES&prodType=table (last visited Nov. 7, 2018) .......... 4

Angela S. Garcia, The Sanctuary Cities Debate, University of Chicago, 23 SSA Magazine 1 (20 16), available at https:/ /goo.gl/tnZU2f ....................................... 13

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Page(s)

Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Police Foundation (Apr. 2009), available at https://goo.gl/DoKdWs ........................................................................................ 16

Bernice Yeung, Police: Immigration Policies Making It Harder to Catch Criminals, RevealNews.Org (Feb. 5, 2018), available at https://goo.gllhNMaBW ....................................................................................... 17

Brianna Ehley et al., Fearing Deportation, Immigrants Forgo Medical Care, Politico (July 17, 20 17), available at https://www.politico.com/story/20 17/07/17 /deportation-fears-under-trump-have-immigrants-forgoing-medical-care-2406 3 5 ......................................................... 2 5

Christopher Lyons et al., Neighborhood immigration, violence, and city-level immigrant political opportunities, 78 Am. Sociological Rev. 604 (2013) ... 12, 14

Chuck Wexler, Police chiefs across the country support sanctuary cities because they keep crime down, L.A. Times (Mar. 6, 20 17), available at https://goo.gl/Fut52T ............................................................................................ 14

Community Policing Dispatch, Office of Community Oriented Policing Services (Feb. 20 13), available at https://goo.gl/RfdtXC .................................................. 18

Craig E. Farrell, Jr. et al., M C. C. Immigration Committee Recommendations For Enforcement of Immigration Laws by Local Policy Agencies, Major Cities Chiefs Ass 'n 5-6 (2006) ........................................................................................ 9

Declaration of Tom K. Wong, California v. Sessions, No. 17-04701, ECF 116-4 (N.D. Cal. July 7, 2018) ........................................... .13

Elina Treyger et al., Immigration Enforcement, Policing, and Crime, 13 Criminology 285 (20 14 ) ....................................................................................... 12

Elisa Jacome, The Effect of Immigration Enforcement on Crime Reporting: Evidence from the Priority Enforcement Program (Princeton U. Indus. Rei. Sec. Working Paper No. 624, 20 18), https://dataspace.princeton.edu/jspui/handle/88435/dsp018p58pg70r ......... 15, 16

Estimates of unauthorized immigrant population, by metro area, 2014, Pew Research Center (Feb. 3, 2017), available at https://goo.gl/ZwBgda ................... 2

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Page(s)

Facts About Los Angeles, Discover Los Angeles, 2017 L.A. Tourism & Convention Board (Dec. 15, 2017), available at https://goo.gl/KtVZWn ........... .3

Final Report of the President's Task Force on 21st Century Policing, President's Task Force on 21st Century Policing at 18, Office of Community Oriented Policing Services (May 20 15), available at https:/ /goo.gl/SJXSaL .................... 18

Helen B. Marrow, The power of local autonomy: expanding health care to unauthorized immigrants in San Francisco, 35 Ethnic & Racial Stud. 72 (2012) ....................................................................................................................... 24, 25

Int'l Ass'n of Chiefs of Police, IACP National Policy Summit on CommunityPolice Relations, (Jan. 20 15), https://www.theiacp.org/sites/default/files/20 18-09/CommunityPoliceRelationsSummitReport_ web.pdf ........................................ 9

Jacqueline Fox, Zika and the Failure to Act Under the Police Power, 49 Conn. L. Rev. 1211 (May 20 17) ......................................................................................... 26

Jan Hoffman, Sick and Afraid, Some Immigrants Forgo Medical Care, N.Y. Times (June 26, 2017), available at https:/ /www.nytimes.com/20 17 /06/26/health/undocumented-immigrants-health-care.html ............................................................................................................... 25

Joseph Hayes and Laura Hill, Undocumented Immigrants in California, Public Policy Institute of California (March 20 17), available at https://goo.gl/41 CVyK8

Judith Walzer Leavitt, Chinatown, N.Y. Times (Apr. 27, 2003), available at https:/ /goo.gl/s 1 Ce4s ............................................................................................ 26

Karen Hacker et al., The impact of Immigration and Customs Enforcement on immigrant health: Perceptions of immigrants in Everett, Massachusetts, USA, 73 Soc. Sci. & Me d. 5 86 (20 11) ........................................................................ 24, 26

Kathleen M. Roche et al., Impacts of Immigration Actions and News and the Psychological Distress of U.S. Latino Parents Raising Adolescents, 62 J. Adolescent Health 525 (20 18), available at https:/ /www.jahonline.org/article/S 1 054-139X(18)30054-5/pdf ........................ 18

L.A. Police Dep't., Decline in Reporting of Crime Among Hispanic Population, (Mar 21, 201 7) available at http:/ /www.lapdonline.org/home/news _ view/61998# ......................................... 17

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Page(s)

L.A. Police Dep't., Statement on Sexual Assault and Domestic Violence Reporting in Immigrant Communities, (Apr. 27, 20 18), available at http://www.lapdonline.org/newsroom/news _ view/63831 ................................... 17

Letter from Law Enforcement Immigration Task Force to Congress (June 28, 20 17), available at https://goo.gl/Pn94ai ............................................................. 19

Los Angeles, Center for the Study of Immigration Integration, USC Dornsife College Of Letters, Arts and Sciences, available at https://goo.gl/wzroXy (last visited Nov. 7, 2018) .............................................................................................. 3

Memorandum for Heads of Department Components and United States Attorneys: Supporting Federal, State, Local, and Tribal Law Enforcement, Off. of Att'y Gen. (Mar. 31, 2017), available at https://www.justice.gov/opa/press-release/file/954916/download ................................................................................ 7

Michael L. Light et al., Undocumented Immigration, Drug Problems, and Driving Under the Influence in the United States, 1990-2014, Am. J. Public Health (July 20, 20 17) .............................................................................................................. 26

Michael Light and Ty Miller, Does Undocumented Immigration Increase Violent Crime?, 56 Criminology 370 (2018), available at https://goo.gl/YJbs2V .......... 11

Michelangelo Landgrave and Alex Nowrasteh, Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin, CA TO Institute, Immigration Research and Policy Brief No. 1 (Mar. 15, 20 17), available at https://goo.gl/PqQtmR ......................................................................................... 13

Motion by Supervisor Hilda L. Solis, Protecting Los Angeles County Residents Regardless of Immigration Status (Dec. 6, 20 16), available at https:/ /goo.gl/oNczH5 ............................................................................................ 3

Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, Univ. of Ill. Chicago (May 2013), available at https :/ /www. policylink.org/sites/ default/files/INSECURE_ COMMUNITIES_ RE PORT FINAL.PDF ............................................................................................. 15

Oakland Resolution No. 63950, adopted July 8, 1986 .............................................. 2

Oakland Resolution No. 86498, adopted November 29, 2016 .................................. 2

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Page(s)

Oakland Resolution No. 87036, adopted January 16, 2018 ...................................... 2

Pradine Saint-Fort et al., Engaging Police in Immigrant Communities (Oct. 2012), available at https://storage.googleapis.com/vera-webassets/downloads/Publications/engaging-police-in-immigrant-communitiespromising-practices-from-the-field/legacy_ downloads/engaging-police-in-immigrant-communities.pdf ................................................................................. 19

Proposed "Public Charge" Rule, County of Santa Clara, available at https:/ /www.sccgov .org/sites/ cco/public-charge/pages/home.aspx (last visited Nov. 7, 2018) .......................................................................................................... 4

Randy Capps et al., Delegation and Divergence: A Study of287(g) State and Local Immigration Enforcement, Migration Policy Institute 43 (Jan. 2011) ...... 15

Robert Sampson et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, Science Magazine (Aug. 15, 1997), available at https:/ /goo.gl/BgMim4 ......................................................................................... 14

Russell B. Toomey et al., Impact of Arizona's SB 1070 Immigration Law on Utilization of Health Care and Public Assistance Among Mexican-Origin Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S28 (2014) ................................................................................................................... 24

Ruth D. Peterson and Lauren J. Krivo, National Neighborhood Crime Study (NNCS), Inter-university Consortium for Political and Social Research (2000), available at https:/ /www.icpsr. umich.edu/icpsrweb/RCMD/studies/2750 1/summary ........... 12

Salvador Rizzo, Trump's Claim that Immigrants Bring (Tremendous Crime' Is Still Wrong, Wash. Post (Jan. 18, 2018), available at https :/ /www. washingtonpost.com/news/fact-checker/wp/20 18/0 1 /18/trumpsclaim-that-immigrants-bring -tremendous-crime-is-still-wrong/?utm _ term=.a4992907a1 ee ....................................................................... 12

Sarah Stillman, When Deportation Is a Death Sentence, The New Yorker (Jan. 15, 2018), available at https://goo.gl/4s1P6N ........................................................... 17

Scott H. Decker, et al., Immigration and Local Policing: Results from a National Survey of Law Enforcement Executive, Police Foundation (June 2015), available at https://goo.gl/WsPwsh ..................................................................................... 16

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Page(s)

Sheyda M. Aboii, Undocumented Immigrants and the Inclusive Health Policies of Sanctuary Cities, Harvard Pub. Health Rev. (2014) ............................................ 24

State of Cal. Assembly Comm. on Judiciary, Employment Regulation: Immigration Worksite Enforcement Issues, A.B. 450 (Apr. 25, 2017) ............... 10

Tara Watson, Inside the Refrigerator: Immigration Enforcement and Chilling Effects in Medicaid Participation, 6 Am. Econ. J.: Econ. Pol'y 313 (2014) ...... 24

Tom Wong, Sanctuary Cities don't 'breed crime. ' They encourage people to report crime, Wash. Post (Apr. 24, 20 18), available at https://www. washingtonpost.com/news/monkey-cage/wp/20 18/04/24/sanctuarycities-dont-breed-crime-they-encourage-people-to-report-crime/?noredirect=on&utm term=.9a22bfea81 c 1 ............................................... 14

Tom Wong, The effect of sanctuary policies on crime and the economy, Center for American Progress (Jan. 26, 2017), available at https://goo.gl/UFUtnk ............ 11

X

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INTEREST OF AMICI CURIAE!

State and local jurisdictions bear primary responsibility for ensuring the

safety and well-being of their communities. This principle is neither novel nor

controversial; it is at the core of our federalist system of government. In exercising

their sovereign duty to promote public safety, states and local governments

throughout the United States-including Amici, 2 29 counties, cities, and local

officials throughout California, representing 18,500,000 residents-have adopted

local laws and policies reflecting their careful judgment of what policies and

practices best serve their communities. Amici hail from all comers of the state,

including counties of more than 10 million people and cities of less than 3,500.

1 All parties have consented to the filing of this brief. Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), the undersigned counsel certifies that: this brief was authored in full by Amici and their counsel, no party or counsel for a party authored or contributed monetarily to this brief in any respect; and no other person or entity-other than Amici and their counsel-contributed monetarily to this briefs preparation or submission.

2 Amici California Localities represent local jurisdictions and officials that have taken steps to improve public health and safety in their communities by encouraging immigrant communities to interact with local government employees. While some Amici identify as "cities of refuge," "sanctuary cities," or "sanctuary jurisdictions," many do not use a specific term to describe their local policies. All Amici California Localities have taken certain efforts to allocate their local law enforcement resources to community safety and crime prevention, rather than enforcement of federal civil immigration law, or have otherwise adopted policies that support community safety by engaging with immigrant communities. For the purposes of this brief, the term "Amici" will be used to collectively refer to this diverse array of localities, which are listed at the end of this brief.

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• The City of Oakland is the largest city in Alameda County. 3 Roughly 28.1%

of the City's approximately 425,000 residents are foreign bom,4 and the

greater Oakland metropolitan area is home to approximately 240,000

undocumented immigrants. 5 Oakland seeks to ensure that its diverse

communities can participate equally in civic life and access city services

designed to ensure the public's safety and health without fear that coming

into contact with local government will result in deportation. In furtherance

of these goals, the City of Oakland has been a City of Refuge since July 8,

1986, and has repeatedly reaffirmed that status and its commitment to its

immigrant communities. 6

3 About Us, County of Alameda, CA, available at https://www.acgov.org/about/ (last visited Nov. 7, 2018).

4 See Advanced Search: Place of Birth By Nativity and Citizenship Status- 2017 American Community Survey 1-Year Estimates, U.S. Census Bureau, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid= ACS_17 _1 YR_B05002&prodType=table (last visited Nov. 7, 2018).

5 Estimates of unauthorized immigrant population, by metro area, 2014, Pew Research Center (Feb. 3, 2017), available at https://goo.gl/ZwBgda.

6 Oakland Resolution No. 63950, adopted July 8, 1986; Oakland Resolution No. 86498, adopted November 29, 2016; Oakland Resolution No. 87036, adopted January 16, 2018.

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• The County of Los Angeles is the largest county in the nation, with more

than 10.2 million residents. 7 Nearly 3.5 million immigrants, comprising

35% of the County's total population, call Los Angeles County home. 8

Additionally, 57% of children in Los Angeles have a noncitizen parent. 9 As

in Oakland, immigrants are an integral part of Los Angeles County's

economic and cultural life, interwoven into the County's social fabric as

neighbors, family, and friends. Whether at school, on the job, in church, or

at home, immigrants are indistinguishable from their native-born family

members and neighbors who have been granted citizenship or legal

permanent residence. By creating its Office of Immigrant Affairs and

pursuing immigration-focused programs and policies, Los Angeles County

has made engagement, integration, and cooperation with its immigrant

communities a top priority.

7 Facts About Los Angeles, Discover Los Angeles, 2017 L.A. Tourism & Convention Board (Dec. 15, 2017), available at https://goo.gl/KtVZWn.

8 Los Angeles, Center for the Study of Immigration Integration, USC Dornsife College Of Letters, Arts and Sciences, available at https://goo.gl/wzroXy (last visited Nov. 7, 2018).

9 Motion by Supervisor Hilda L. Solis, Protecting Los Angeles County Residents Regardless of Immigration Status (Dec. 6, 20 16), at 1, available at https://goo.gl/oNczH5.

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• Home to a multi-cultural population of 1.9 million residents, the County of

Santa Clara is the most populous county in Northern Califomia. 10 In recent

years, the County of Santa Clara's immigrant population has grown

significantly and now comprises approximately 38% of the region's total

population, the highest share since the late 1800s. 11 The County of Santa

Clara is responsible for providing essential services and safety-net programs,

including health care, law enforcement, emergency planning and response

services, care for the youth and elderly, and many other critical social

services to all residents, regardless of immigration status. The County of

Santa Clara has adopted policies and practices that reflect the judgment of its

elected officials and law enforcement agencies that assistance with federal

civil immigration enforcement would undermine the County's ability to fight

crime and make the entire community less safe.

10 See Advanced Search: Annual Estimates of the Resident Population: April1, 2010 to July 1, 2017 2017, U.S. Census Bureau, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid= PEP _2017 _PEP ANNRES&prodType=table (last visited Nov. 7, 20 18).

11 Proposed "Public Charge" Rule, County of Santa Clara, available at https:/ /www.sccgov .org/sites/cco/public-charge/pages/home.aspx (last visited Nov. 7, 2018).

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This litigation involves the federal government's challenge to three

California laws, including SB 54, 12 which aim to promote public safety by limiting

state and local entanglement with federal immigration enforcement. SB 54, also

known as the California Values Act, manifests a commitment to integrating

immigrants into communities and promoting public safety, public health, and a

robust economy throughout the State. Amici share the State's goals of protecting

the well-being of all Californians and offer a critical perspective on how state and

local jurisdictions are best equipped to address the unique needs of their

communities, and thus have a strong interest in the resolution of this appeal in

favor of California.

In the proceedings below, the district court properly found that SB 54

protects the State's residents in a manner consistent with federal law and denied the

federal government's motion to preliminarily enjoin SB 54. 13 The careful

delineation of state and federal powers is precisely what the Constitution requires,

and what Amici's considered judgment respects. And, as extensive research

studies show, jurisdictions adopting policies similar to those of the State and

Amici-in which scarce local law enforcement resources are allocated to

12 Cal. Gov't Code§ 7284 et seq. (hereinafter "SB 54").

13 United States v. California, 314 F. Supp. 3d 1077, 1108-12 (E.D. Cal. 2018).

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Case: 18-16496, 11/09/2018, 10: 11083502, DktEntry: 54, Page 17 of 47

investigation of crimes, rather than enforcement of federal civil immigration

laws-have safer, healthier, and more economically resilient communities.

ARGUMENT

I. SB 54 REFLECTS CALIFORNIA'S CONSIDERED EXERCISE OF ITS HISTORIC POWER TO PROMOTE PUBLIC SAFETY, HEALTH, AND WELFARE

The United States Supreme Court has long emphasized that local control

over the health and safety of residents ensures that matters "'concern[ing] the lives,

liberties, and properties of the people"' are determined "by governments more

local and more accountable than a distant federal bureaucracy." 14 Enshrined in the

Constitution and a core part of American democracy ever since, local control

respects the "historic police powers of the States."15 Local governments and

officials have "wide discretion in determining [their] own public policy and what

measures are necessary for [their] own protection and properly to promote the

safety, peace and good order of [their] people." 16 California counties and cities

likewise possess the power to enforce "all local, police, sanitary, and other

14 Nat'! Fed'n oflndep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012) (quoting The Federalist No. 45, at 293 (J. Madison)).

15 Rice v. Santa Fe Elevator Corp., 331 U.S. 218,230 (1947); see also United States v. Morrison, 529 U.S. 598, 618 (2000) (noting there is "no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims").

16 Terrace v. Thompson, 263 U.S. 197,217 (1923).

6

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ordinances and regulations not in conflict with general laws." 17 SB 54 fits well

within these established constitutional principles, aiming to "ensure effective

policing, to protect the safety, well-being, and constitutional rights of the people of

California, and to direct the state's limited resources to matters of greatest concern

to state and local governments." 18 Exercising its police powers over public safety,

the State determined that indiscriminately devoting local resources to federal civil

immigration enforcement is detrimental to trust between law enforcement and

communities it serves and, therefore, to public safety. 19 California's laws reflect

17 Cal. Const. Art. XI, § 7.

18 Cal. Gov't Code§ 7284.2(±). The federal government is fully aware that effective local policing requires local control over law enforcement policy decisions. The federal government supports state and local governments' exercise of such discretion when it proves politically expedient. Indeed, just last year, in an attempt to justify his decision to rescind consent decrees between the Justice Department's Civil Rights Division and local police departments-a decision Amici in no way condone-then Attorney General Sessions touted the importance of local control over law enforcement decisions, writing that addressing rising crime rates and securing public safety "are, first and foremost, tasks for state, local, and tribal enforcement," and that "[l]ocal control and local accountability are necessary for effective local policing. It is not the responsibility of the federal government to manage non-federal law enforcement agencies." Memorandum for Heads of Department Components and United States Attorneys: Supporting Federal, State, Local, and Tribal Law Enforcement, Off. of Att'y Gen. (Mar. 31, 2017), available at https://www.justice.gov/opa/pressrelease/file/954916/download. This lawsuit turns that position on its head.

19 See generally Cal. Gov't Code§ 7284.2(a)-(e) (detailing legislative findings that building trust with immigrant communities furthers law enforcement objectives, that "entangling" state agencies with federal immigration enforcement diverts local

7

21


sound public policy: here, the State concluded, as had many California localities

prior to the passage of SB 54 (including Amici), that local involvement in federal

immigration enforcement would be harmful to the safety and well-being of its

residents, including-but, as the next Part details, not limited to-the nearly 2.6

million undocumented immigrants who reside and participate in communities

throughout California. 20

Sound public policy and longstanding Supreme Court precedent protects-

and indeed endorses-state and local governments' exercise of discretion to direct

their own law enforcement resources when it comes to the health and safety of

their residents.

II. THE FEDERAL GOVERNMENT'S ATTEMPTED COERCION OF LOCAL IMMIGRATION ENFORCEMENT UNDERMINES PUBLIC SAFETY BY DISCOURAGING COMMUNITY ORIENTED POLICING AND CIVIC PARTICIPATION BY IMMIGRANTS

The federal government's attempt to coerce California-and its localities-

to comply with its preferred immigration enforcement agenda harms Amici in two

distinct ways: First, it erodes community trust in law enforcement, thereby

reducing community cooperation and making it more difficult for local sheriffs,

resources and blurs lines of accountability, and that state and local participation would create constitutional concerns).

20 See Joseph Hayes and Laura Hill, Undocumented Immigrants in California, Public Policy Institute of California (March 20 17), available at https:/ /goo.gl/41 CVyK.

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police officers, and prosecutors to effectively protect the public from crime; and

second, it discourages immigrant communities from fully participating in our

economies and communities, thus resulting in worse public health outcomes for all.

A. State and Local Control of Law Enforcement Is Integral to Promoting Public Safety and Fostering Trust Between Immigrant Communities and Police

Law enforcement officials throughout California and the nation agree that

building community trust is integral to promoting public safety. 21 California, like

many Amici, has acted on that principle, enacting laws-particularly SB 54-

aimed at encouraging community cooperation and participation in the criminal

justice system to hold criminals accountable and promote justice for all.

Amici recognize the importance of building and maintaining trust between

police and immigrants. If immigrants fear that interaction with law enforcement

may lead to deportation for themselves or a loved one, they are less likely to assist

law enforcement as witnesses and/or victims, and public safety will suffer.22 These

21 See, e.g., Int'l Ass'n of Chiefs of Police, IACP National Policy Summit on Community-Police Relations, (Jan. 2015), 11, https:/ /www.theiacp.org/sites/default/files/20 18-09/CommunityPoliceRelationsSummitReport _ web.pdf

22 See, e.g., Craig E. Farrell, Jr. et al., M C. C. Immigration Committee Recommendations For Enforcement of Immigration Laws by Local Policy Agencies, Major Cities Chiefs Ass'n 5-6 (2006) ("Immigration enforcement by local police would likely negatively affect and undermine the level of trust and cooperation between local police and immigrant communities .... ").

9

23


concerns are not theoretical, as both legislators and courts have recognized. 23

Regardless of immigration status, all community residents serve an important role

in assisting local law enforcement and the justice system-state and local

governments should not be forced to participate in a federal immigration

enforcement agenda that ignores community safety and well-being. Amici's

collective experience makes clear that trust between law enforcement and the

communities they are sworn to protect is weakened when local law enforcement

officers are viewed as de facto immigration enforcers.

The district court recognized as much in its order denying a preliminary

injunction, explaining that the mere perception of cooperation with federal

immigration enforcement threatens to eviscerate the trust that enables law

enforcement to protect the community. 24 For this reason, the court ruled that it was

"entirely reasonable" for California to determine that "assisting immigration

23 For example, a federal judge in the Northern District of California recently found that "[t]he harm that entanglement with immigration enforcement does to community trust is more than theoretical. ... " City & Cty. of San Francisco v. Sessions, No. 17-04642-WHO, 2018 WL 4859528, at *15 (N.D. Cal. Oct. 5, 2018). In a similar vein, maintaining trust between employers and employees is critical to ensuring that immigrants' rights are protected in the workplace. As members of the Legislature recognized in analyzing AB 450, the threat of immigration raids in the workplace "decreases the likelihood that workers will report labor violations or exercise workplace rights." See State of Cal. Assembly Comm. on Judiciary, Employment Regulation: Immigration Worksite Enforcement Issues, A.B. 450 (Apr. 25, 2017), at 5.

24 United States v. California, 314 F. Supp. 3d at 1108.

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enforcement in any way" was a detrimental use of its limited law enforcement

resources. 25

1. Research confirms sanctuary policies' positive effect on public safety

Sanctuary policies26 like SB 54 do more than reinforce community trust;

they make communities safer. Studies confirm that jurisdictions with policies

limiting their participation in immigration enforcement have comparatively lower

crime rates than those without such policies. The Center for American Progress

found that counties with sanctuary policies had statistically significant lower crime

than other counties-on average 35.5 fewer crimes committed per 10,000 people.27

A recent longitudinal analysis published in the interdisciplinary journal

Criminology analyzed the effect of unauthorized immigration on violence between

1990 and 20 14 and concluded that undocumented immigration is generally

associated with decreasing violent crime. 28 Another study found that higher

25 !d.

26 As used herein, "sanctuary laws" or "sanctuary policies" encompasses the broad range of policies, laws, or regulations that state or local governments may implement, consistent with the police powers reserved to them under the Constitution, aimed at limiting local entanglement with federal civil immigration enforcement efforts and serving to promote public health, safety, and well-being throughout their communities.

27 Tom Wong, The effect of sanctuary policies on crime and the economy, Center for American Progress (Jan. 26, 2017), available at https://goo.gl!UFUtnk.

28 Michael Light and Ty Miller, Does Undocumented Immigration Increase Violent Crime?, 56 Criminology 370, 370 (2018), available at https://goo.gl/YJbs2V.

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immigrant concentrations were associated with reduced homicide rates and

reduced robbery rates. 29 In cities that limited local enforcement of federal

immigration laws, this correlation was even stronger. 30 Other studies have found

that certain cities with the lowest levels of targeted immigration enforcement have

statistically significant reductions in larceny (by 2-3%) and motor vehicle theft (by

5-6%).31 Indeed, contrary to the federal government's rhetoric, 32 immigrants are in

fact less likely to commit crimes and be incarcerated than American-born

29 Christopher Lyons et al., Neighborhood immigration, violence, and city-level immigrant political opportunities, 78 Am. Sociological Rev. 604, 615-17, 620 (2013). The National Neighborhood Crime Study (NNCS) compiled crime and sociodemographic data for census tracts in a representative sample of large United States cities for 2000 and was funded by the National Science Foundation. See Ruth D. Peterson and Lauren J. Krivo, National Neighborhood Crime Study (NNCS), Inter-university Consortium for Political and Social Research (2000), available at https://www.icpsr.umich.edu/icpsrweb/RCMD/studies/27501/summary.

30 Lyons supra n.29, at 617.

31 Elina Treyger et al., Immigration Enforcement, Policing, and Crime, 13 Criminology 285, 305-06 (2014) (for the list of335 included cities, see Appendix 1 ).

32 See, e.g., Salvador Rizzo, Trump 's Claim that Immigrants Bring (Tremendous Crime' Is Still Wrong, Wash. Post (Jan. 18, 2018), available at https:/ /www. washingtonpost.com/news/fact-checker/wp/20 18/0 1 I 18/trumps-claimthat-immigrants-bring-tremendous-crime-is-still-wrong/?utm _term= .a4992907 a 1 ee.

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individuals; specifically, undocumented immigrants are 44% less likely to be

incarcerated compared with native-born citizens. 33

These studies are not flukes, nor are their results accidental. When large

populations of undocumented immigrants "fear[] that interaction with police leads

to arrest and deportation, they will be reluctant to report crimes, make statements,

or testify in court. This chilling effect leaves cities less safe for everyone. " 34 For

example, in an ongoing 2018 survey of undocumented individuals in San Diego,

26.6% of undocumented immigrants reported being "a great deal" or "a lot" less

likely to trust that police officers and sheriffs would keep them and their families

safe "if local law enforcement officials 'were working together with ICE. "'35 And

22.9% were "a great deal" or "a lot" less likely to trust that police officers would

keep their communities safe "if local law enforcement officials 'were working

together with ICE. "'36 By contrast, sanctuary policies allow local governments to

create a virtuous upward "spiral of trust" that fosters communications between

33 Michelangelo Landgrave and Alex Nowrasteh, Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin, CA TO Institute, Immigration Research and Policy Brief No. I (Mar. 15, 20 17), at 2, available at https :/I goo.gl/Pq QtmR.

34 Angela S. Garcia, The Sanctuary Cities Debate, University of Chicago, 23 SSA Magazine 1 (20 16), available at https://goo.gl/tnZU2f.

35 Declaration of Tom K. Wong at~~ 41-44, California v. Sessions, No. 17-04701, ECF 116-4 (N.D. Cal. July 7, 2018).

36 !d.

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government officials and immigrants, reduces social isolation and cynicism toward

government, and increases neighborhood attachment. 37 This social cohesion and

"collective efficacy" has been associated with reduced violence and greater

stability, which makes communities generally safer for all. 38

It is well-documented that as immigration enforcement and the threat of

deportation increase, the likelihood of undocumented immigrants reporting crimes

decreases significantly. 39 For example, a 2017 survey of Mexican nationals in

San Diego, revealed that 60.8% of undocumented immigrants are less likely to

report a crime they witness to police if local law enforcement officials "were

working together with ICE."40 Similarly, in a 2013 survey, 67% of undocumented

37 Lyons, supra n.29, at 609-10.

38 Robert Sampson et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, Science Magazine (Aug. 15, 1997}, available at https:/ /goo.gl/BgMim4.

39 See, e.g., Chuck Wexler, Police chiefs across the country support sanctuary cities because they keep crime down, L.A. Times (Mar. 6, 20 1 7), available at https:/ /goo.gl/Fut52T.

40 Tom Wong, Sanctuary Cities don't 'breed crime. ' They encourage people to report crime, Wash. Post (Apr. 24, 20 18}, available at https://www.washingtonpost.com/news/monkey-cage/wp/20 18/04/24/sanctuarycities-dont-breed-crime-they-encourage-people-to-reportcrime/?noredirect=on&utm_term=.9a22bfea81c1; see also Declaration of Tom K. Wong, supra n. 35 at~ 35. In the same survey, approximately 70% of undocumented immigrants stated they were more likely to report when they are the victim of a crime or witness a crime if law enforcement officials say they will NOT work with ICE. Declaration ofT om K. Wong, supra n. 35 at~ 36.

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individuals reported that they were less likely to offer information to law

enforcement as a witness if they feared officers would inquire about their or others'

immigration status. 41 Seventy percent reported being less likely to contact law

enforcement authorities even if they were victims of a crime. 42 A recent report

from Princeton demonstrates immigration policy's tangible effect on crime

reporting data. The report analyzed crime data from the Dallas Police Department

and found that during the Priority Enforcement Program, which limited ICE's

enforcement priorities to individuals who threatened public safety, there was

roughly a 1 Oo/o increase in police reports filed by Hispanic individuals. 43 These

41 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, Univ. of Ill. Chicago (May 2013), at 5-6, available at https:/ /www. policylink.org/sites/ default/files/INSECURE_ COMMUNITIES_ REP ORT FINAL.PDF.

42 !d.; see also Randy Capps et al., Delegation and Divergence: A Study of287(g) State and Local Immigration Enforcement, Migration Policy Institute 43 (Jan. 2011) (study that looked at the impact of287(g) of the Immigration and Nationality Act on seven counties and found that in four of the counties that were involved in traffic operations, "community respondents were especially likely to report that immigrants were venturing into public places with less frequency, failing to report crimes or interact with police, interacting less with schools and other institutions, patronizing local businesses less often, and changing their driving patterns.").

43 Elisa Jacome, The Effect of Immigration Enforcement on Crime Reporting: Evidence from the Priority Enforcement Program, at 13 (Princeton U. Indus. Rel. Sec. Working Paper No. 624, 2018), https://dataspace.princeton.edu/jspui/handle/88435/dspO 18p58pg70r

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results suggest that when individuals' fears of immigration enforcement are

reduced, trust between immigrant communities and law enforcement increases. 44

Law enforcement officials have also been clear about the detrimental effects

that immigration entanglement causes in their communities. In a survey conducted

by the Police Foundation, responding law enforcement personnel and public

officials widely reported that aggressive enforcement of immigration law would

decrease community trust of police (74% of respondents), trust between

community residents (70%), and reporting of crime victimization (85%) and

criminal activity (83%).45 Another recent Police Foundation survey showed that

more than 70% of police chiefs reported that immigrants in their communities are

somewhat or much less likely to contact law enforcement when they are victims of

or witnesses to crime. 46 Finally, a 2018 study conducted by the National

Immigrant Women's Advocacy Project found that approximately 40% of the 232

law enforcement officials who responded confirmed that "federal immigration

policies have affected their relationships with immigrant communities in 2017

44 !d. at 24.

45 Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Police Foundation (Apr. 2009), at 24, available at https://goo.gl/DoKdWs.

46 Scott H. Decker et al., Immigration and Local Policing: Results from a National Survey of Law Enforcement Executive, Police Foundation (June 2015), at 174, available at https://goo.gl/WsPwsh.

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compared with 20 16, and 71% said that because immigrants face barriers to

engaging with law enforcement, officers were less able to hold criminals

accountable."47

The current federal Administration's immigration enforcement priorities

have had stark effects on public safety in California. In the first three months of

2017, reports of sexual assault among the Latino population in the City of Los

Angeles declined 25%, and domestic-violence reports dropped I 0%.48 At the same

time, reporting among non-Latino victims was virtually unchanged.49 The City of

Los Angeles Police Department attributes this troubling drop in reporting to

deportation fears in the Latino community. 50 Empirical evidence supports the

47 Bernice Yeung, Police: Immigration Policies Making It Harder to Catch Criminals, RevealNews.Org (Feb. 5, 2018), available at https://goo.gl/hNMaBW.

48 See Sarah Stillman, When Deportation Is a Death Sentence, The New Yorker (Jan. 15, 2018), available at https://goo.gl/4slP6N.

49 Id.

50 L.A. Police Dep 't., Decline in Reporting of Crime Among Hispanic Population, (Mar 21, 2017) available at http://www.lapdonline.org/home/news_view/61998#. Conversely, the diligent efforts by the Department to communicate its commitment to the undocumented community had a positive effect on community trust. This year, the Department issued a new press release describing its intentional outreach to immigrant communities following the 2016 presidential election. The Department made clear its position to not question residents for the sole purpose of determining immigration status (Special Order 40). Since then, the gap between the Latino community and citywide reporting of sexual assaults decreased to under 4% and the gap for domestic violence reporting decreased to 0.4%. L.A. Police Dep't., Statement on Sexual Assault and Domestic Violence Reporting in

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Department's conclusion. For example, a 2017 survey of Latino immigrant

populations in the mid-Atlantic found that, due to the recent immigration climate,

almost 30% of participants "very often" or "always" avoid contact with police;

39.4% avoided medical care, police, and services; and 47.6% warned their children

to stay away from authorities. 51

The United States Department of Justice ("DOJ") itself has previously

recognized what these studies make clear-that federal immigration entanglement

in state and local law enforcement negatively affects community safety. In 2015, a

DOJ Task Force released a report that recommended"[ d]ecoupl[ing] federal

immigration enforcement from routine local policing" in an effort to build

relationships of trust with immigrant communities. 52 DOJ has further described

how "[ c ]ultural and language barriers, immigrants' fear of deportation or detention,

Immigrant Communities, (Apr. 27, 2018), available at http://www .lapdonline.org/newsroom/news _ view/63 831.

51 Kathleen M. Roche et al., Impacts of Immigration Actions and News and the Psychological Distress of U.S. Latino Parents Raising Adolescents, 62 J. Adolescent Health 525, 528-29 (20 18), available at https://www.jahonline.org/article/S1054-139X(18)30054-5/pdf.

52 Final Report of the President's Task Force on 21st Century Policing, President's Task Force on 21st Century Policing at 18, Office of Community Oriented Policing Services (May 20 15), available at https:/ /goo.gl/SJXSaL.

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and immigrants' mistrust of law enforcement are some of the factors that can

challenge police-immigrant relations" to the detriment of public safety. 53

In reaching these conclusions, the DOJ-sponsored study drew directly from

state and local experiences that show fear of deportation leads to underreporting of

crime, failure to access needed government services, and refusal to cooperate with

criminal prosecutions. 54 Even for some immigrant victims who had the courage to

report crime, the fear of deportation ultimately interfered with their cooperation in

prosecutions. 55 As a result of this reality, the Law Enforcement Immigration Task

Force, comprised of many state and local law enforcement officials from across the

country, determined in a 2017 letter to Congress that state and local law

enforcement "can best serve [their] communities by leaving the enforcement of

immigration laws to the federal government."56

53 Community Policing Dispatch, Office of Community Oriented Policing Services (Feb. 2013), available at https://goo.gl/RfdtXC.

54 See generally Pradine Saint-Fort et al., Engaging Police in Immigrant Communities (Oct. 20 12), available at https://storage.googleapis.com/vera-webassets/downloads/Publications/engaging-police-in-immigrant-communitiespromising-practices-from-the-field/legacy_ downloads/engaging-police-inimmigrant-communities.pdf (a study funded by the Office of Community Oriented Policing Services).

55 !d. at 40.

56 See Letter from Law Enforcement Immigration Task Force to Congress (June 28, 2017), available at https://goo.gl/Pn94ai.

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2. Courts recognize that entanglement between local law enforcement and federal immigration enforcement does not lead to safer communities

Based on the policies and evidence before them, courts in California and

across the country agree that when local law enforcement are perceived to be

entangled with federal immigration enforcement, it can irreparably damage a

community's trust in local law enforcement and jeopardize public safety. 57

Analyzing the evidence, these courts have rejected the federal government's

rhetoric that sanctuary policies lead to more crime. In fact, the opposite is true.

The district court here considered the arguments, experience, and studies

proffered by the parties and amici. On this record, the court found that cooperation

with federal immigration enforcement negatively affects local law enforcement's

relationship with immigrant communities and hampers officers' ability to respond

to emergencies and prevent crime. 58 The district court agreed with California and

supporting amici that even the perception that California is cooperating with

immigration authorities threatens to upend the "delicate" relationship between law

enforcement and the community. 59

57 See City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), vacated in part by, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018); City & Cty. of San Francisco, 2018 WL 4859528, at *15; City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 20 18).

58 United States v. California, 314 F. Supp. 3d at 1108.

59 !d. (emphasis added).

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Other courts have reached similar conclusions. As the current federal

Administration seeks to defend its position that states should assist with federal

immigration objectives, courts have repeatedly refused to credit DOJ's arguments.

For example, in City of Chicago v. Sessions, the Seventh Circuit considered the

propriety of a preliminary injunction on new conditions on Byrne JAG law

enforcement grants that require grant recipients to cooperate with federal

immigration enforcement. 60 The Seventh Circuit upheld the injunction, explaining

that the purported "choice" between assisting federal immigration officers or

receiving critical funding left Chicago in an unwinnable position that put its

relationship with immigrant communities at risk. 61 In a similar case, a district

6° City of Chicago, 888 F.3d at 276. After a complicated procedural history, the majority of this opinion remains in effect. Although the court vacated Part IV of its opinion, which upheld the nationwide scope of the preliminary injunction, the remainder of its opinion was not vacated. 2018 WL 4268817 (7th Cir. June 4, 2018); 2018 WL 4268814 (7th Cir. Aug. 10, 2018). Indeed, the Seventh Circuit denied DOJ's motion to vacate Parts I through III of the opinion as moot. See Order Den. Mot. to Vacate, City of Chicago v. Sessions, No. 17-2991 (7th Cir. Aug. 29, 2018). However, on July 27, 2018, the district court entered a permanent injunction, which DOJ has appealed-presenting the Seventh Circuit with a new opportunity to consider these arguments. See City of Chicago v. Sessions (City of Chicago II), No. 18-2885 (7th Cir. Aug. 28, 2018).

61 City of Chicago, 888 F.3d at 281. Although the preliminary injunction was vacated, see n.60 supra, the Northern District of Illinois relied on similar arguments to instate a permanent injunction. City of Chicago v. Sessions, 321 F. Supp. 3d 855, 877-78 (N.D. Ill. 2018) ("[T]his Court finds that Chicago's compliance with the Conditions would damage local law enforcement's relationship with immigrant communities and decrease the cooperation essential to prevent and solve crimes both within those communities and Chicago at large.

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court in the Northern District of California found that DOJ failed to show "any

demonstrable linkage" between "allowing local government to maintain

immigration confidentiality" and any purported decline in community safety. 62

By contrast, states and localities have established evidence, backed by

independent research and practical experience, that promoting community trust

furthers important safety objectives. As a federal judge in the Northern District of

California recently recognized, "in contrast to DOJ's unsubstantiated view,"

California has established that cooperation with immigration enforcement has a

concrete, negative impact on its law enforcement efforts. 63 In City of Philadelphia

v. Sessions, the court explained that Philadelphia's sanctuary policies benefit all

residents in the community, noting that ''the policies [the city] has implemented

encourage immigrants to seek medical services that prevent the spread of

communicable diseases, report crime, and apprehend criminal suspects who may

recidivate and harm other residents."64

Trust once lost is not easily restored, and as such, this is an irreparable harm for which there is no adequate remedy at law.").

62 City & Cty. of San Francisco, 2018 WL 4859528, at *25.

63 Id. at *26 (citing studies that show Latinos (including U.S. born Latinos) and undocumented immigrants are less likely to contact police when police are perceived to be cooperating with immigration enforcement).

64 City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 623 (E.D. Pa. 2017). The court later granted a permanent injunction and specifically affirmed the analysis in

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In short, several courts facing similar legal issues and factual records have

concluded that communities are safer when local governments avoid entanglement

with federal immigration enforcement-a conclusion borne out by empirical

evidence.

B. State and Local Sanctuary Policies Promote the Health and Welfare of California Residents

In addition to promoting public safety, states and localities have relied upon

their broad police powers to implement policies, which, in lawmakers' considered

judgment, advance public health and improve the public welfare. 65 Indeed, like the

State itself, 66 numerous counties, cities, and towns in California have adopted

"sanctuary" laws or policies to promote public health, safety, and well-being in

their respective jurisdictions. Research confirms that these sanctuary policies

support the public health and economic welfare of California cities and counties.

its preliminary injunction order. City of Philadelphia v. Sessions, 309 F. Supp. 3d at 323.

65 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 300 (2006) (Thomas, J., dissenting) (protection of public health and safety is generally enforced through state and local police powers).

66 For example, the legislative findings of SB 54 explain that a "relationship of trust" between immigrants and state and local agencies is central to the "public safety of the people of California" and is threatened by entanglement with immigration enforcement, with the result that "immigrant community members fear approaching police when they are victims of, and witnesses to, crimes, seeking basic health services, or attending school." Cal. Gov't Code § 7284.2(b )-(d).

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1. Sanctuary policies support improved public health

Sanctuary policies support public health and safety goals by ensuring access

to and encouraging utilization of basic health care services, which improve public

health outcomes for entire communities. The disparities in access to care and care

utilization based on lawful immigration status are well documented. 67

Undocumented immigrants and their family members are less likely to use

government services, including health care, due in large part to fear that their

interactions with healthcare providers, insurers, or government entities will lead to

deportation. 68 Increased immigration enforcement and community perception

about the heightened risk of enforcement only serves to further reduce use of these

services. 69 In fact, under the current federal Administration's enhanced

67 Helen B. Marrow, The power of local autonomy: expanding health care to unauthorized immigrants in San Francisco, 35 Ethnic & Racial Stud. 72, 73 (2012); see also Sheyda M. Aboii, Undocumented Immigrants and the Inclusive Health Policies of Sanctuary Cities, Harvard Pub. Health Rev. (2014) (noting that undocumented immigrants are less likely to be insured and that few undocumented immigrants have a primary care physician or first point-of-contact in the healthcare system aside from the emergency room).

68 See, e.g., Aboii, supra n. 67.

69 See, e.g., Tara Watson, Inside the Refrigerator: Immigration Enforcement and Chilling Effects in Medicaid Participation, 6 Am. Econ. J.: Econ. Pol 'y 313 (20 14) (finding heightened immigration enforcement reduces Medicaid participation by eligible children of noncitizens); Karen Hacker et al., The impact of Immigration and Customs Enforcement on immigrant health: Perceptions of immigrants in Everett, Massachusetts, USA, 73 Soc. Sci. & Med. 586, 591-92 (2011); Russell B. Toomey et al., Impact of Arizona's SB 1070 Immigration Law on Utilization of

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immigration enforcement regime, hospitals and clinics that serve immigrant

communities around the country have noted downturns in appointments and

increased cancellations. 70

Sanctuary policies allow localities, like Amici, that provide health care and

other social services through public health departments and safety-net hospitals

(i.e., hospitals that treat patients in need regardless of ability to pay), to address

these disparities in public health. 71 For example, to combat the fears that often

keep undocumented immigrants from seeking health care, providers in localities

with sanctuary policies use "buffering" strategies, such as (i) advertising "safe"

spaces where information regarding immigration status will not be collected in a

manner inconsistent with state or federal law, or (ii) having individual

conversations to reassure applicants that they will not be asked about their status

except as required by state or federallaw. 72 Such strategies allow healthcare

Health Care and Public Assistance Among Mexican-Origin Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S28 (2014).

70 Jan Hoffman, Sick and Afraid, Some Immigrants Forgo Medical Care, N.Y. Times (June 26, 20 17), available at https://www.nytimes.com/20 17 /06/26/health/undocumented-immigrants-healthcare.html; Brianna Ehley et al., Fearing Deportation, Immigrants Forgo Medical Care, Politico (July 17, 2017), available at https://www.politico.com/story/20 17/07/17 /deportation-fears-under-trump-haveimmigrants-forgoing-medical-care-240635.

71 Marrow, supra n.67, at 74, 84.

72 !d. at 79.

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providers to foster trust with their patients and provide much needed medical care

to a traditionally underserved segment of the community.

Public health strategies, by their nature, are only successful when they

address the needs of entire communities. As history demonstrates, the exclusion of

any segment of the community from screening services related to sexual health,

disease prevention, or prenatal care can have significant consequences on the

greater community. 73 Mistrust of community institutions leads immigrant groups

to avoid health care for communicable diseases and makes it "difficult to maintain

the public's health."74 By improving access to and utilization ofhealthcare

services to undocumented immigrants and their families, sanctuary policies have

salutary effects on the health and well-being of the community as a whole. 75

73 One example includes the plague outbreaks that swept through San Francisco at the beginning of the twentieth century. Public health officials discriminated against residents of San Francisco's Chinatown district during the epidemic abatement, which led to a larger health crisis than had healthcare officials adopted a public health strategy addressing the needs of all communities. See generally Jacqueline Fox, Zika and the Failure to Act Under the Police Power, 49 Conn. L. Rev. 1211, 1222 n.51, 1224 (May 2017); Judith Walzer Leavitt, Chinatown, N.Y. Times (Apr. 27, 2003), available at https://goo.gl/s1Ce4s.

74 Hacker et al., supra n. 69, at 592.

75 Recent research suggests that undocumented immigration may be associated directly with reductions in public health concerns. For example, one study found that increased undocumented immigration was associated with statistically significant decreases in drug arrests, drug overdose deaths, and DUI arrests. Michael L. Light et al., Undocumented Immigration, Drug Problems, and Driving

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2. Jurisdictions adopting sanctuary policies promote stronger economies

Research strongly suggests that "when local law enforcement focuses on

keeping communities safe, rather than becoming entangled in federal immigration

enforcement efforts, communities are safer and community members stay more

engaged in the local economy. This in tum brings benefits to individual

households, communities, counties, and the economy as a whole. "76 A notable

study by the Center for American Progress found that "economies are stronger in

sanctuary counties-from higher median household income, less poverty, and less

reliance on public assistance to higher labor force participation, higher

employment-to-population ratios, and lower unemployment."77 On average,

median household income is $4,353 higher in counties with sanctuary policies or

laws than in counties without such policies. 78

State and local governments' attempts to improve the economic status of

their residents through limited immigration enforcement is a guiding principle of

the general police power-the power for jurisdictions to decide which policies and

Under the Influence in the United States, 1990-2014, Am. J. Public Health (July 20, 2017).

76 Wong, supra n. 27.

77 !d.

78 !d.

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practices will improve the lives of their residents and the safety of their

communities.

CONCLUSION

State and local governments are duty-bound to promote the safety and

welfare of all residents in their communities, regardless of immigration status. As

the Supreme Court has recognized, state and local governments are uniquely suited

for the task given their intimate knowledge of and close connection to their diverse

communities. Here, California exercised its sovereign duty to promote public

safety and well-being. This Court should affirm the denial of the preliminary

injunction and reject the federal government's attempt to prevent the State from

"exercising [its] own judgment in an area to which States lay claim by right of

history and expertise."79 Consistent with long-standing precedent and

constitutional principles, state and local governments are best able and most

accountable to determine the policies that will best protect their communities, not

the federal government. Law enforcement officials and prosecutors, independent

social science experts, and courts around the nation that have considered this issue

have all concluded that sanctuary policies like those at issue on this appeal will

protect, serve, and advance the interests of the entire community better than

79 United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring).

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coercing local public health and safety officials to act as federal immigration

policy enforcers.

For all these reasons and the reasons set forth in Defendants-Appellees'

brief, Amici respectfully request this Court affirm the district court's denial of the

federal government's motion for preliminary injunction.

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Dated: November 9, 2018

MARGARET L. CARTER DANIEL R. SUVOR O'Melveny & Myers LLP

By: Is/ Margaret L. Carter Margaret L. Carter

Attorneys for Amicus Curiae County of Los Angeles

BARBARA J. PARKER Oakland City Attorney MARIA BEE ERIN BERNSTEIN MALIA MCPHERSON

By: Is/ Erin Bernstein Erin Bernstein

Attorneys for Amicus Curiae City of Oakland

JAMES R. WILLIAMS Santa Clara County Counsel GRETA S. HANSEN KA VITA NARAYAN JAVIER SERRANO

By: Is/ Javier Serrano Javier Serrano

Attorneys for Amicus Curiae County of Santa Clara

30

44


LIST OF AMICI CURIAE

County of Alameda, California

City of Albany, California

City of Berkeley, California

City of Chula Vista, California

County of Contra Costa, California

City of Culver City, California

City of Cupertino, California

City of Davis, California

City of East Palo Alto, California

City of Los Altos, California

County of Los Angeles, California

County of Marin, California

City of Milpitas, California

City of Monte Sereno, California

County of Monterey, California

31

City of Morgan Hill, California

City of Mountain View, California

City of Oakland, California

City of Palm Springs, California

City of Pomona, California

City of Richmond, California

City of Sacramento, California

City of San Diego, California

City of San Jose, California

County of Santa Clara, California

County of Santa Cruz, California

City of Santa Monica, California

Mayor Michael Tubbs, City of

Stockton, California

City of West Hollywood, California

45


ADDITIONAL COUNSEL FOR AMICI CURIAE

Donna R. Ziegler County Counsel, County of Alameda

1221 Oak Street, Suite 450 Oakland, CA 94612

Attorney for the County of Alameda, California

Craig Labadie City Attorney, City of Albany

1 000 San Pablo A venue Albany, CA 94 706

Attorney for the City of Albany, California

Farimah Faiz Brown City Attorney, City of Berkeley

2180 Milvia Street, 4th Floor Berkeley, CA 94074

Attorney for the City of Berkeley, California

Glen Googins City Attorney, City of Chula Vista

276 Fourth Avenue Chula Vista, CA 9191 0

Attorney for the City of Chula Vista, California

32

Charles J. McKee County Counsel, County of Monterey

168 West Ali sal St, 3 rd Fl Salinas, CA 93 901

Attorney for the County of Monterey, California

Donald A. Larkin City Attorney, City of Morgan Hill

17575 Peak Avenue Morgan Hill, CA 95037

Attorney for the City of Morgan Hill, California

Jannie L. Quinn City Attorney, City of Mountain View

500 Castro St., 3rd Floor Mountain View, CA 94041

Attorney for the City of Mountain View, California

Edward Z. Kotkin City Attorney, City of Palm Springs


Attorney for the City of Palm Springs, California

46


Sharon L. Anderson County Counsel, Contra Costa County

651 Pine Street, 9th Floor Martinez, CA 94553

Attorney for the County of Contra Costa, California

Carol Schwab City Attorney, City of Culver City

9770 Culver Boulevard Culver City, CA 90232

Attorney for the City of Culver City, California

Rocio Fierro Acting City Attorney, City of Cupertino

10300 Torre Avenue Cupertino, CA 95014-3202

Attorney for the City of Cupertino, California

Harriet Steiner City Attorney, City of Davis

Best Best & Krieger LLP 500 Capitol Mall, Suite 1700

Sacramento, CA 95814

Attorney for the City of Davis, California

33

Arnold Alvarez-Glasman City Attorney, City of Pomona

Alvarez-Glasman & Colvin 13181 Crossroads Parkway

North Suite 400 City of Industry, CA 91746

Attorney for the City of Pomona, California

Bruce Reed Goodmiller City Attorney, City of Richmond

450 Civic Center Plaza Richmond, CA 94804

Attorney for the City of Richmond, California

Susana Alcala Wood City Attorney, City of Sacramento

915 I Street, Fourth Floor Sacramento, CA 95814

Attorney for the City of Sacramento, California

Mara W. Elliot City Attorney, City of San Diego

1200 Third Ave., Suite 1620 San Diego, CA 921 0 1

Attorney for the City of San Diego, California

47

Case: 18-164961 11/09/2018, ID: 110835021 DktEntry: 54, Page 45 of 47

Rafael E. Alvarado Jr. City Attorney, City of East Palo Alto

2415 University Ave. East Palo Alto, CA 94303

Attorney for the City of East Palo Alto, California

Christopher Diaz City Attorney, Cities of Los Altos and Milpitas

Best Best & Krieger LLP 2001 North Main St., Suite 390

Walnut Creek, CA 94596

Attorney for the City of Los Altos, California

and the City of Milpitas, California

Brian Washington County Counsel, County of Marin 3501 Civic Center Drive, Rm 275

San Rafael, CA 94903

Attorney for the County of Marin, California

Kirsten Powell City Attorney, City of Monte Sereno

LOGAN & POWELL, LLP 15466 Los Gatos Blvd., Suite 109

Los Gatos, CA 95032

Richard Doyle City Attorney, City of San Jose

200 East Santa Clara St., 16th Floor San Jose, CA 95113

Attorney for the City of San Jose, California

Dana McRae County Counsel, County of Santa Cruz

701 Ocean Street, Room 505 Santa Cruz, CA 95060

Attorney for the County of Santa Cruz, California

Lane Dilg City Attorney, City of Santa Monica

1685 Main Street, Third Floor Santa Monica, CA 90401

Attorney for the City of Santa Monica, California

Michael Jenkins City Attorney, City of West Hollywood

Best Best & Krieger LLP 1230 Rosecrans Ave., Suite 110

Manhattan Beach, CA 90266

Attorney for the City of Monte Sereno, Attorney for the City of West Hollywood, California California

34

48


CERTIFICATE OF COMPLIANCE

I certify that this document complies with the type-volume limitation set

forth in Federal Rules of Appellate Procedure 29(a)(5) & 32(a)(7)(B) and Circuit

Rule 32-1 because it contains 6,599 words, exclusive of the portions of the brief

that are exempted by Federal Rule of Appellate Procedure 32(f). I certify that this

document complies with the typeface requirements ofF ederal Rule of Appellate

Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate

Procedure 32(a)(6).


MARGARET L. CARTER O'Melveny & Myers LLP


Attorney for Amicus Curiae County of Los Angeles

35

49


CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of BRIEF OF ANIICI CURIAE 29

CALIFORNIA COUNTIES, CITIES, AND LOCAL OFFICIALS was served on

November 9, 2018 via this Court's ECF filing system, whereupon all counsel of

record were served.


MARGARET L. CARTER O'Melveny & Myers LLP


Attorney for Amicus Curiae County of Los Angeles

36

50


SubjectAN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, TOEXTEND A TEMPORARY MORATORIUM ON CONVERSIONS OF GOLF COURSES TOOTHER USES FOR AN ADDITIONAL FOUR (4) MONTHS TO ALLOW FORCONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN ORMUNICIPAL CODE IN ACCORDANCE WITH GOVERNMENT CODE SECTION 65858:RECOMMENDATION:

Open the Public Hearing and receive public testimony.1.Waive the reading of the ordinance text in its entirety, read by title only, and adopt anOrdinance entitled "AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALMSPRINGS, CALIFORNIA, TO EXTEND INTERIM URGENCY ORDINANCE NO. 1967FOR AN ADDITIONAL FOUR (4) MONTHS AND CONTINUE FOR THIS PERIOD ATEMPORARY MORATORIUM ON THE CONVERSION OF GOLF COURSES TOOTHER USES TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTSTO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE WITHGOVERNMENT CODE SECTION 65858 (4/5ths Vote Required)."

2.

Attachments2A Interim Urg Ord Re Moratorium on Golf Course Conv.


DATE: November 28, 2018 PUBLIC HEARING

SUBJECT: AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, TO EXTEND A TEMPORARY MORATORIUM ON CONVERSION S OF GOLF COURSES TO OTHER USES FOR AN ADDITIONAL FOUR MONTHS TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE WITH GOVERNMENT CODE SECTION 65858 (4f5THS Vote Required).


BY: Department of Planning Services

SUMMARY

The City Council is requested to extend Interim Urgency Ordinance No. 1967, a temporary moratorium on conversions of golf courses to other uses, for an addition four (4) months so as to allow the City time to study and prepare amendments to the General Plan or Municipal Code. The extension ordinance requires a fourth-fifths vote of the City Council to pass .

RECOMMENDATION:

1. Open the Public Hearing, take evidence and public testimony, and close the public hearing.

2. Waive the reading of the text in its entirety, read by tit le only, and adopt Ordinance No. __ , "AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, TO EXTEND INTERIM URGENCY ORDINANCE NO. 1967 FOR AN ADDITIONAL FOUR MONTHS AND CONTINUE FOR THIS PERIOD A TEMPORARY MORATORIUM ON THE CONVERSION OF GOLF COURSES TO OTHER USES TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE W ITH GOVERNMENT CODE SECTION 65858." (4/51hs

vote required)

STAFF ANALYSIS:

On October 17, 2018, the City Counci l adopted Interim Urgency Ordinance No. 1967

JIEM NO. __ ~_. _A_._

City Council Staff Report November 28, 2018 -- Page 2 First Extension of Moratorium on Conversions of Golf Courses

which temporarily prohibits the conversion of golf courses for other uses. The City has received an application, and may receive additional applications, to convert existing golf course properties to other uses that are inconsistent with an "Open Space" General Plan land use designation. The ordinance is intended to address the concern that, without any development standards in place to address the conversion of golf course facilities, open space may be lost and development standards are not yet in place to mitigate impacts to adjacent developed properties. For more details, a copy of the October 17, 2018 staff report is attached as Exhibit "A" for reference. A copy of Ordinance No. 1967 is also attached hereto as Exhibit "B." Ordinance No. 1967 is effective for 45 days and is set to expire on December 1, 2018.

The moratorium was established to allow the City the opportunity to review its General Plan and Municipal Code to address the issue of golf course conversions. The City has a substantial interest in ensuring that golf course conversions occur with the appropriate level of review, and that development standards protect the City's interest in open space, recreation, and views, while also protecting the rights of property owners.

Since the adoption of the moratorium, the Planning Department and the City Attorney's Office have been diligently working on alleviating the conditions which led to the adoption of the moratorium. These include: (i) meeting with the Planning Commission subcommittee and stakeholders to discuss necessary standards for golf course conversions; (ii) drafting an ordinance to establish development standards for the conversion of golf courses to other uses; and (iii) receiving a recommendation for approval of the draft golf course conversion ordinance by a full vote of the Planning Commission at a public hearing in October 2018.

Although Staff has taken the measures outlined above to address these issues, they have not yet finished their work in this regard. As such, Staff is requesting the Council to extend the moratorium for an additional period of four (4) months. While State law would allow the moratorium to be extended for an additional ten (1 0) months and fifteen (15) days, Staff believes that this extension will give them the opportunity to fully analyze these issues and to draft appropriate amendments to the General Plan or Municipal Code for Council consideration.

The moratorium may be extended for four (4) months by adopting the attached Interim Urgency Ordinance No. __ (Exhibit "C"). As with the original Interim Urgency Ordinance No. 1967, this also requires a four-fifths (4/5) vote of the Council to approve. The moratorium, if extended, will remain in effect until March 28, 2019. It can then be extended for one (1) additional year by adoption of another interim urgency ordinance after conducting a noticed public hearing in accordance with State law.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION:

This ordinance is not subject to the California Environmental Quality Act under California Code of Regulations, Title 14, Section 15060, subdivision (c)(2), because the activity will

2

City Council Staff Report November 28, 2018 -- Page 3 First Extension of Moratorium on Conversions of Golf Courses

not result in a direct or reasonably foreseeable indirect physical change in the environment nor under subdivision (c)(3) because the activity has no potential for resulting in physical change to the environment, directly or indirectly and so is not a project. The ordinance temporarily ensures that the status quo is maintained.

FISCAL IMPACT:

No anticipated fiscal impacts.

Director of Planning Services

~~~~ David Ready, Esq., Ph.O: City Manager

Attachments: A. Staff Report- October 17, 2018 B. Ordinance No. 1967 C. Draft Interim Urgency Ordinance

Edward Z. Kotk in City Attorney

3

Exhibit A Staff Report 1 0/17/1 8

4


DATE: October 17, 2018 LEGISLATIVE

SUBJECT: AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADOPTING A TEMPORARY MORATORIUM ON CONVERSIONS OF GOLF COURSES TO OTHER USES TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE WITH GOVERNMENT CODE SECTIONS 65858 (4/5ths Vote Required).

BY: EDWARD KOTKIN, CITY ATTORNEY

FROM: DAVID READY, CITY MANAGER

SUMMARY:

The City Council will consider an interim urgency ordinance placing a 45-day moratorium, effective immediately, on conversions of golf courses to other uses, to allow the City to study General Plan, Municipal Code, and other amendments to local regulations. The moratorium requires a four-fifths vote of the City Council to pass.

RECOMMENDATION:

Waive the reading of the text in its entirety, read by title only, and adopt Ordinance No. , "AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADOPTING A TEMPORARY MORATORIUM ON CONVERSIONS OF GOLF COURSES TO OTHER USES TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE WITH GOVERNMENT CODE SECTIONS 65858 (4/Sths Vote Required)."

STAFF ANALYSIS:

There are several golf courses in the City. Since 2007, and in some cases earlier, golf courses within the City have been assigned a General Plan land use designation of "Open Space," in order to maintain this land for active and passive recreation, preservation of open space, maintenance of views, and tourist attraction. The City has received an application, and may receive additional applications to convert existing golf courses to other uses that are currently inconsistent with an "Open Space" General Plan land use designation, such as residential and commercial uses. At the present time, the City's development regulations are under review and the City is currently considering more detailed regulations to govern this special case. The City has a substantial interest in ensuring that golf course conversions occur with the appropriate

ITEM NO.~.~.

5

City Council Staff Report October 17, 2108- Page 2 Golf Course Conversion Moratorium

level of review, and that development standards protect the City's interests in open space, recreation, and views, while also protecting the rights of property owners.

Pursuant to Government Code, section 65858, this Interim Urgency Ordinance places a moratorium on conversions of golf courses to other uses. If adopted, this moratorium will pause golf course conversions to allow the City time to study and consider potential amendments to the General Plan, Municipal Code and other governing City planning document(s) or policy(ies) ("Potential Amendments") to address the standards, process, and potential impacts of such golf course conversion activity.

For purposes of this moratorium, "conversion" is defined as: a change in the land use designation in the General Plan to any designation other than "Open Space", and any new or amended specific plan, zoning, Municipal Code ordinance, or any other governing City planning document, or policy that authorizes uses which are inconsistent with an "Open Space" General Plan land use designation.

"Golf course" is defined as a lot or portion of a lot used for the playing of golf, including pitchand-putt courses, whether in use as such, or is vacant, but shall not include driving ranges, miniature golf courses or other similar commercial enterprises, unless expressly permitted in the Zoning Code.

During the moratorium:

1. Conversion of any golf course is prohibited; and

2. The City will not authorize approval, issuance, or transfer of any use permit, variance, building permit, business license, or other applicable entitlement or approach for conversion of any golf course.

It is specifically noted that the alteration or proposed alteration of a current golf course to another use that is consistent with the General Plan "Open Space" land use designation would not be prohibited by this moratorium. This may include an alteration or proposed alteration of a Golf Course to land to be used for other outdoor sports or recreational amenities.

The moratorium requires a four-fifths vote of the City Council to pass. The moratorium will take effect immediately and remain in effect for 45 days. The City may extend this moratorium by adoption of an extension ordinance, which requires a public hearing noticed in accordance with Government Code section 65090, and a four-fifths vote of the City Council to pass. The City may adopt no more than two extension ordinances, the first for up to 10 months and 15 days and the second for up to another 12 months.

During the forty-five (45) days of the moratorium, the Planning Department will study all Potential Amendments related the conversion of golf courses. The results of that study will be reflected in a statutorily required report issued by the City Council no less than ten (1 0) days prior to the expiration of the term of this interim urgency ordinance on December 1, 2018 (on or before November 21, 2018).

2 6

City Council Staff Report October 17, 2108-- Page 3 Golf Course Conversion Moratorium

The Agua Caliente Band of Cahuilla Indians (the "Tribe") holds an interest in the Indian Canyons Golf Resort ("Indian Canyons"). City staff always consults with the Tribe's staff regarding potential City land use decisions that impact or may impact on the "Reservation" or any portion thereof, ~~Allotted Trust Land," "Tribal Trust Land," or "On-Reservation Fee Land," as each of those terms is defined in the "CITY OF PALM SPRINGS I AGUA CALIENTE BAND OF CAHUILLA INDIANS, LAND USE CONTRACT, Amended and Restated," approved by the City Council on September 20, 2018 (the "Land Use Contract"). Indian Canyons is located on Allotted Trust Lands. The City Attorney has conferred with the Tribe's legal counsel regarding the proposed moratorium, and the Potential Amendments related to golf course conversion. Legal counsel for the Tribe reviewed this report and the proposed moratorium prior to their publication, and expressed strong reservations about this moratorium, and any Potential Amendments insofar as the City may deem them applicable to any potential conversion of Indian Canyons, or any portion thereof.

The City has an understanding and agreement with the Tribe, incorporated in the Land Use Contract and dating back to the "Supplemental Agreement No. 1" to the 1977 Land Use Agreement between the Tribe and City, dated March 20, 1978, with respect to any appeal by any person aggrieved by City planning and zoning actions. Under the Land Use Contract, an aggrieved person may appeal a final City land use decision impacting Allotted Trust Lands to the Tribal Council for relief per Tribal Ordinance No.5, the "Tribal Land Use Appeal Ordinance." In any eventual final approval of a Potential Amendment, the City must be mindful of this right of aggrieved persons or parties to seek relief from the Tribal Council as to the Potential Amendment's applicability to Indian Canyons or any portion thereof.

ENVIRONMENTAL:

Staff recommends that the City Council find that this ordinance is not subject to the California Environmental Quality Act under California Code of Regulations, Title 14, Section 15060, subdivision (c)(2), because the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment nor under subdivision (c)(3) because the activity has no potential for resulting in physical change to the environment, directly or indirectly and so is not a project. The ordinance temporarily ensures that the status quo is maintained.

FISCAL IMPACT:

No anticipated fiscal impacts.

~~. E INN FA;,G=?:i: ~ng

EDWARD Z. KOTKIN City Attorney

Attachments: A. Proposed Moratorium Ordinance

3 7

ATTACHMENT A

4 8

ORDINANCE NO. __

AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADOPTING A TEMPORARY MORATORIUM ON CONVERSIONS OF GOLF COURSES TO OTHER USES TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE WITH GOVERNMENT CODE SECTIONS 65858 (4/5ths Vote Required).

Citv Attorney's Summary

Pursuant to California Government Code section 65858, this Interim Urgency Ordinance places a moratorium on conversions of golf courses to other uses inconsistent with the current General Plan land use designation of "Open Space.'' If adopted, this moratorium will pause golf course conversions to allow the City time to study and consider potential amendments to the General Plan or Municipal Code to address the standards, process, and potential impacts of such activities. The moratorium requires a four-fifths ( 415) vote of the City Council to pass. The moratorium will take effect immediately for forty-five (45) days. The City may extend the moratorium by adoption of an extension ordinance, which requires a public hearing noticed in accordance with Government Code section 65090, approved by a four-fifths ( 415) vote of the City Council. The City may adopt no more than two (2) extension ordinances, the first for up to ten (10) months and fifteen (15) days and the second for up to another twelve (12) months.


Section 1. Findings.

A. Golf Course Conversions. There are several golf courses located in the City. Since 2007, and in some cases earlier, golf courses within the City have been assigned a General Plan land use designation of "Open Space", in order to maintain this land for active and passive recreation, preservation of open space, maintenance of views and tourist attraction. The City has received an application and may receive additional applications to convert existing golf courses to other uses that are currently inconsistent with an "Open Space" General Plan land use designation, such as residential and commercial uses. At the present time, the City's development regulations are under review and the City is currently considering more detailed regulations to govern this special case. The City has a substantial interest in ensuring that golf course conversions occur with the

5 9

Ordinance No. Page2

appropriate level of review, and that development standards protect the City's interests in open space, recreation, and views, while also protecting the rights of property owners.

B. Public Health, Safety, and Welfare. Given the present and anticipated applications for golf course conversions, and the City's interest in protecting recreation, open space, and views, there is a current and immediate threat to the public health, safety, and welfare if permits, entitlements, or other approvals for golf course conversions are issued.

C. Purpose. The purpose of this moratorium is to pause golf course conversions to allow for the City to study and consider potential amendments to the General Plan or Municipal Code to set standards for, process, and review golf course conversions.

Section 2. Moratorium.

Now, therefore, in accordance with California Government Code section 65858, the City Council adopts a moratorium on golf course conversions as follows:

A. Definitions. For the purposes of this ordinance, the following terms and definitions are used:

1. "Conversion" means a change in the land use designation in the General Plan to any designation other than "Open Space", and any new or amended specific plan, zoning, Municipal Code ordinance, or any other governing City planning document, or policy that authorizes uses which are inconsistent with an "Open Space" General Plan land use designation;

2. "Golf Course" means the same as "golf course" defined in Palm Springs Municipal Code, section 91.00.1 0, whether the "golf course" in question is in use as such, or is vacant. This definition is recited here for reference purposes: II 'Golf course' means a lot or portion of a lot used for the playing of golf, including pitch-and-putt courses, but shall not include driving ranges, miniature golf courses or other similar commercial enterprises, unless expressly permitted in the Zoning Code;" and

3. "Moratorium" means a temporary prohibition of an activity.

B. Moratorium. Notwithstanding anything to the contrary in existing City law, including, but not limited to, the General Plan, any specific plan, zoning, the Palm Springs Municipal Code, and other governing City planning document(s) or policy(ies), a moratorium is hereby placed on:

6 10

Ordinance No. Page3

1. The Conversion of any Golf Course; and

2. The approval, issuance, or transfer of any use permit, variance, building permit, business license, or other applicable entitlement or approach for the Conversion of any Golf Course.

C. Exception. Notwithstanding the above, this Moratorium shall not apply to any alteration or proposed alteration of a current Golf Course to another use that is consistent with the General Plan "Open Space" land use designation, as determined by the Director of Planning in an exercise of his/her discretion. Such exceptional alterations include, but are not limited to, the conversion of a Golf Course to land to be used for other outdoor sports or recreational amenities.

D. Duration. The moratorium shall be in effect for forty-five (45) days from the adoption of this ordinance. The moratorium may be extended as provided in Government Code, section 65858.

E. Applications. The City may continue to accept and process applications for uses prohibited by this moratorium if so required by State law. Any application received and processed during the moratorium shall be processed at the applicant's sole cost and risk with the understanding that no permit for Conversion of a Golf Course may issue while this moratorium or any extension of it is in effect.

Section 3. Study. The City Council hereby directs the Department of Planning Services to study and develop potential amendments to the General Plan, any specific plan, zoning, the Palm Springs Municipal Code, and/or any other governing City planning document(s) or policy(ies) related to the Conversion of any Golf Course.

Section 4. CEQA. The City Council finds that this ordinance is not subject to the California Environmental Quality Act under California Code of Regulations, Title 14, Section 15060, subdivision (c){2), because the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment nor under subdivision (c)(3) because the activity has no potential for resulting in physical change to the environment, directly or indirectly and so is not a project. The ordinance temporarily ensures that the status quo is maintained.

Section 5. Severability. If any section or provision of this ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, the remaining sections and/or provisions of this ordinance shall remain valid. The City Council hereby declares that it would have adopted this Ordinance, and each section or provision thereof, regardless of the fact that any one or more section(s) or provision(s) may be declared invalid or unconstitutional or contravened via legislation.

Section 6. Effectiveness. This ordinance is declared an urgency measure necessary for the immediate protection and preservation of the public peace, health, safety, and welfare for the reasons stated above, and it takes effect immediately on adoption by the City Council by at least a four-fifths vote and signing by the City Clerk.

7 11

Ordinance No. Page4

Section 7. Report. Ten (10) days before this interim urgency ordinance or an extension of it expires, the City Council shall issue a written report describing the measures that the City has taken to address the conditions that led to the adoption of this ordinance.

PASSED AND ADOPTED THIS 17th DAY OF OCTOBER 2018.


Robert Moon, Mayor

ATTEST:

Anthony J. Mejia, City Clerk

APPROVED AS TO FORM:


8 12

Exhibit B Ordinance No. 1 967

13

ORDINANCE NO. 1967

AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADOPTING A TEMPORARY MORATORIUM ON CONVERSIONS OF GOLF COURSES TO OTHER USES TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE WITH GOVERNMENT CODE SECTIONS 65858 (4/5ths Vote Required).

Citv Attornev's Summarv

Pursuant to California Government Code section 65858, this Interim Urgency Ordinance places a moratorium on conversions of golf courses to other uses inconsistent with the current General Plan land use designation of "Open Space." If adopted, this moratorium will pause golf course conversions to allow the City time to study and consider potential amendments to the General Plan or Municipal Code to address the standards, process, and potential impacts of such activities. The moratorium requires a four-fifths (4/5) vote of the City Council to pass. The moratorium will take effect immediately for forty-five (45) days. The City may extend the moratorium by adoption of an extension ordinance, which requires a public hearing noticed in accordance with Government Code section 65090, approved by a four-fifths (4/5) vote of the City Council. The City may adopt no more than two (2) extension ordinances, the first for up to ten (10) months and fifteen (15) days and the second for up to another twelve (12) months.

THE CITY COUNCIL OF THE CITY OF PALM SPRINGS ORDAINS:

SECTION 1. Findings.

A. Golf Course Conversions. There are several golf courses located in the City. Since 2007, and in some cases earlier, golf courses within the City have been assigned a General Plan land use designation of "Open Space", in order to maintain this land for active and passive recreation, preservation of open space, maintenance of views and tourist attraction. The City has received an application and may receive additional applications to convert existing golf courses to other uses that are currently inconsistent with an "Open Space" General Plan land use designation, such as residential and commercial uses. At the present time, the City's development regulations are under review and the City is currently considering more detailed regulations to govern this special case. The City has a substantial interest in ensuring that golf course conversions occur with the

14

Ordinance No. 1967 Page2

appropriate level of review, and that development standards protect the City's interests in open space, recreation, and views, while also protecting the rights of property owners.

B. Public Health, Safety, and Welfare. Given the present and anticipated applications for golf course conversions, and the City's interest in protecting recreation, open space, and views, there is a current and immediate threat to the public health, safety, and welfare if permits, entitlements, or other approvals for golf course conversions are issued.

C. Purpose. The purpose of this moratorium is to pause golf course conversions to allow for the City to study and consider potential amendments to the General Plan or Municipal Code to set standards for, process, and review golf course conversions.

SECTION 2. Moratorium.

Now, therefore, in accordance with California Government Code section 65858, the City Council adopts a moratorium on golf course conversions as follows:

A. Definitions. For the purposes of this ordinance, the following terms and definitions are used:

1. "Conversion" means a change in the land use designation in the General Plan to any designation other than "Open Space", and any new or amended specific plan, zoning, Municipal Code ordinance, or any other governing City planning document, or policy that authorizes uses which are inconsistent with an "Open Space" General Plan land use designation;

2. "Golf Course" means the same as "golf course" defined in Palm Springs Municipal Code, section 91.00.1 0, as modified herein, whether the "golf course" in question is in use as such, is vacant, or lays fallow. This definition is recited here for reference purposes: " 'Golf course' means a lot or portion of a lot identified in the General Plan as being "Open SpaceParks/Recreation," that is used for the playing of golf, including pitch-andputt courses, but shall not include driving ranges, miniature golf courses or other similar commercial enterprises, unless expressly permitted in the Zoning Code;" and

3. "Moratorium" means a temporary prohibition of an activity.

B. Moratorium. Notwithstanding anything to the contrary in existing City law, including, but not limited to, the General Plan, any specific plan, zoning, the Palm Springs Municipal Code, and other governing City planning document(s) or policy(ies), a moratorium is hereby placed on:

15

Ordinance No. 1967 Page3

1. The Conversion of any Golf Course; and

2. The approval, issuance, or transfer of any use permit, variance, building permit, business license, or other applicable entitlement or approach for the Conversion of any Golf Course.

C. Exception. Notwithstanding the above, this Moratorium shall not apply to any alteration or proposed alteration of a current Golf Course to another use that is consistent with the General Plan "Open Space" land use designation, as determined by the Director of Planning in an exercise of his/her discretion. Such exceptional alterations include, but are not limited to, the conversion of a Golf Course to land to be used for other outdoor sports or recreational amenities.

D. Duration. The moratorium shall be in effect for forty-five (45) days from the adoption of this ordinance. The moratorium may be extended as provided in Government Code, section 65858.

E. Applications. The City may continue to accept and process applications for uses prohibited by this moratorium if so required by State law. Any application received and processed during the moratorium shall be processed at the applicant's sole cost and risk with the understanding that no permit for Conversion of a Golf Course may issue while this moratorium or any extension of it is in effect.

SECTION 3. Study. The City Council hereby directs the Department of Planning Services to study and develop potential amendments to the General Plan, any specific plan, zoning, the Palm Springs Municipal Code, and/or any other governing City planning document(s) or policy(ies) related to the Conversion of any Golf Course.

SECTION 4. CEQA. The City Council finds that this ordinance is not subject to the California Environmental Quality Act under California Code of Regulations, Title 14, Section 15060, subdivision (c)(2), because the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment nor under subdivision (c)(3) because the activity has no potential for resulting in physical change to the environment, directly or indirectly and so is not a project. The ordinance temporarily ensures that the status quo is maintained.

SECTION 5. Severability. If any section or provision of this ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, the remaining sections and/or provisions of this ordinance shall remain valid. The City Council hereby declares that it would have adopted this Ordinance, and each section or provision thereof, regardless of the fact that any one or more section(s) or provision(s) may be declared invalid or unconstitutional or contravened via legislation.

SECTION 6. Effectiveness. This ordinance is declared an urgency measure necessary for the immediate protection and preservation of the public peace, health,

16

Ordinance No. 1967 Page 4

safety, and welfare for the reasons stated above, and it takes effect immediately on adoption by the City Council by at least a four-fifths vote and signing by the City Clerk.

SECTION 7. Report. Ten (1 0) days before this interim urgency ordinance or an extension of it expires, the City Council shall issue a written report describing the measures that the City has taken to address the conditions that led to the adoption of this ordinance.

PASSED, APPROVED AND ADOR D ALM SPRINGS CITY COUNCIL THIS 171h DAY OF OCTOBER 20 8.

'\

ROBERT MOON, MAYOR ATTEST:

CERTIFICATION

STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS)

I, ANTHONY J. MEJIA, City Clerk of the City of Palm Springs, California, do hereby certify that Interim Urgency Ordinance No. 1 967 is a full, true, and correct copy, and adopted by the City Council at a regular meeting held on Wednesday the 17th day of October, 2018 by the following vote:

AYES:

NOES: ABSENT: ABSTAIN:

Councilmembers Holstege, Kors, Middleton, Mayor Pro Tern Roberts, and Mayor Moon None None None

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this 2 Y~ day of C'k ~ \Q.-"../ , 'b · ~>

17

Exhibit C Draft Interim Urgency

Ordinance

18

ORDINANCE NO.

AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, TO EXTEND INTERIM URGENCY ORDINANCE NO. 1967 FOR AN ADDITIONAL FOUR MONTHS AND CONTINUE FOR THIS PERIOD A TEMPORARY MORATORIUM ON THE CONVERSION OF GOLF COURSES FOR OTHER USES TO ALLOW FOR CONSIDERATION OF APPROPRIATE AMENDMENTS TO THE GENERAL PLAN OR MUNICIPAL CODE IN ACCORDANCE WITH GOVERNMENT CODE SECTION 65858.

Citv Attorney's Summarv

Pursuant to Government Code Section 65858, this Interim Urgency Ordinance extends a temporary moratorium for an additional four (4) months on the conversion of existing golf courses for other uses. If adopted, this moratorium will continue to pause such conversions to allow the City time to study and consider potential amendments to the General Plan or Municipal Code to address the standards, process, and potential impacts of such activities. This moratorium extension ordinance requires a four-fifths ( 415) vote of the City Council to pass. The City may extend this moratorium one additional time by twelve (12) months by adoption of a second extension ordinance, which requires notice in accordance with Government Code Section 65090, a public hearing, and a four-fifths ( 415) vote of the City Council to pass.

THE CITY COUNCIL OF THE CITY OF PALM SPRINGS ORDAINS:

SECTION 1. Findings.

A. On October 17, 2018, pursuant to Section 65858 of the California Government Code, the City Council of the City of Palm Springs adopted Ordinance No. 1967, an interim urgency ordinance, which temporarily prohibits the conversion of golf courses for other uses.

B. Section 65858 of the California Government Code provides that Ordinance No. 1967 shall expire and be of no further force and effect forty-five (45) days from its date of adoption (October 17, 2018).

C. Section 65858 of the California Government Code provides that prior to the expiration of Ordinance No. 1967, the City may extend Ordinance No. 1967 for an additional ten (1 0) months and fifteen (15) days after giving notice

19

Ordinance No. Page 2

--

pursuant to Section 65090 of the California Government Code and conducting a public hearing.

D. On November 14, 2018, the City Council issued a written report describing the measures and actions taken by the City to alleviate the circumstances and conditions which led to the adoption of Ordinance No. 1967 since its adoption on October 17, 2018 as required by Government Code Section 65858 ("Council Report").

E. Based on the Council Report, the City Council has determined that the circumstances and conditions that led to the adoption of Ordinance No. 1967 and which are set forth in that Ordinance have not been alleviated as of the date of this Ordinance and continue to create the concerns described therein.

F. The Council intends to extend the temporary prohibition on the conversion of golf courses for other uses, as currently authorized under Ordinance No. 1967, to continue studying possible amendments to the City's General Plan and Municipal Code to help ensure that this activity is regulated in a way that protects the community and complies with applicable law.

G. The purpose of extending Ordinance No. 1967 is to avoid the potentially significant adverse impacts to the public's health, safety, and welfare described in that Ordinance.

H. The City Council has determined that there is a need to extend Ordinance No. 1967 for an additional period of four (4) months in order to complete its work on regulations to govern the conversion of golf courses to other uses, and will not request to extend the moratorium for an additional period of ten (1 0) months and fifteen (15) days as allowed under Section 65858 of the California Government Code.

I. The notice and public hearing required by Section 65858 of the California Government Code for the extension of Ordinance No. 1967 have been provided as required.

SECTION 2. Extension of Moratorium. Now, therefore, in accordance with Government Code Section 65858, the City Council adopts this Ordinance, extending Ordinance No. 1967 for a period of four (4) months.

SECTION 3. Effect of Moratorium. During the time this Ordinance is in effect, the City of Palm Springs shall not issue or approve any license, permit or land use entitlement to convert any existing golf course for other uses which is in violation of the moratorium established by Ordinance No. 1967.

SECTION 4. Applications. The City may continue to accept and process

20

Ordinance No. --Page 3

applications for uses prohibited by this moratorium if so required by State law. Any application received and processed during the moratorium shall be processed at the applicant's sole cost and risk with the understanding that no permit for the conversion of a golf course for other uses may issue while this moratorium or any extension of it is in effect.

SECTION 5. Urgency. The City Council hereby finds and determines that adoption of this Ordinance and the extension of Ordinance No. 1967 is necessary for the current and immediate protection of the public health, safety, and welfare of the City and its residents for all the reasons set forth in the Findings above and in Ordinance No. 1967, which are hereby expressly incorporated as though fully set forth herein.

SECTION 6. Study. The City Council hereby directs the Department of Planning Services to study and develop potential amendments to the General Plan, any specific plan, Municipal Code, or any other governing City planning document or policy related to the conversion of golf courses for other uses.

SECTION 7. CEQA. The City Council finds that this Ordinance is not subject to the California Environmental Quality Act under California Code of Regulations, Title 14, Section 15060, subdivision (c)(2), because the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment nor under subdivision (c)(3) because the activity has no potential for resulting in physical change to the environment, directly or indirectly and so is not a project. The ordinance temporarily ensures that the status quo is maintained.

SECTION 8. Severability. If any section or provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, the remaining sections and/or provisions of this ordinance shall remain valid. The City Council hereby declares that it would have adopted this Ordinance, and each section or provision thereof, regardless of the fact that any one or more section(s) or provision(s) may be declared invalid or unconstitutional or contravened via legislation.

SECTION 9. Effectiveness. This Ordinance is declared an urgency measure necessary for the immediate protection and preservation of the public peace, health, safety, and welfare for the reasons stated above, and it takes effect immediately on adoption by the City Council by at least four-fifths (4/5) vote and signing by the City Clerk.

SECTION 10. Report. Ten (1 0) days before this interim urgency ordinance or an extension of it expires, the City Council shall issue a written report describing the measures that the City has taken to address the conditions that led to the adoption of this Ordinance.

21

Ordinance No. --Page4

PASSED AND ADOPTED THIS 28TH DAY OF NOVEMBER, 2018.

ATTEST:

ANTHONY J. MEJIA, MMC CITY CLERK

STATE OF CALIFORNIA )

ROBERT MOON MAYOR

CERTIFICATION

COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS)

I, ANTHONY J. MEJIA, City Clerk of the City of Palm Springs, California, do hereby certify that Ordinance No. __ is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Springs City Council on ___ _ and adopted at a regular meeting of the City Council held on by the following vote:


IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this day of _____ _

ANTHONY J. MEJIA, MMC CITY CLERK

22

NOTICE OF PUBLIC HEARING CITY COUNCIL


AN EXTENSION OF INTERIM URGENCY ORDINANCE NO. 1967: A TEMPORARY MORATORIUM ON CONVERSIONS OF GOLF COURSES TO OTHER USES

NOTICE IS HEREBY GIVEN that the City Council of the City of Palm Springs, California, will hold a public hearing at its meeting of November 28, 2018. The City Council meeting begins at 6:00p.m., in the Council Chamber at City Hall, 3200 East Tahquitz Canyon Way, Palm Springs.

The purpose of this hearing is to consider an extension of Ordinance No. 1967, a temporary moratorium on conversions of golf courses to other uses. The extension of the moratorium is requested for an additional four (4) months, which will allow the City to study any necessary amendments to the General Plan and Municipal Code.

ENVIRONMENTAL DETERMINATION: The proposed ordinance is exempt from environmental review requirements of the California Environmental Quality Act ("CEQA") pursuant to Section 15061 (b)(3) of Title 14 of the California Code of Regulations, as there is no possibility that the adoption of the ordinance will have a significant effect on the environment.

REVIEW OF PROJECT INFORMATION: The proposed ordinance and related documents are available for public review at City Hall between the hours of 8:00a.m. and 6:00p.m., Monday through Thursday. Please contact the Office of the City Clerk at (760) 323-8204 if you would like to schedule an appointment to review these documents.

COMMENT ON THIS APPLICATION: Response to this notice may be made verbally at the Public Hearing and/or in writing before the hearing. Written comments can be made to the City Council by email at [email protected] or letter (for mail or hand delivery) to:

Anthony J. Mejia, MMC, City Clerk 3200 E. Tahquitz Canyon Way

Palm Springs, CA 92262

Any challenge of the proposed case in court may be limited to raising only those issues raised at the public hearing described in this notice, or in written correspondence delivered to the City Clerk at, or prior, to the public hearing. (Government Code Section 65009[b][2]).

An opportunity will be given at said hearing for all interested persons to be heard. Questions regarding this case may be directed to Flinn Fagg, Director of Planning Services, at (760) 323-8245.

Si necesita ayuda con esta carta, porfavor llame a Ia Ciudad de Palm Springs y puede hablar con Jackie Linares, telefono (760) 323-8245.

23


SubjectPROPOSED ORDINANCE TO ALLOW ANY AIRPORT COMMISSION MEMBER TO SERVEAS CHAIRPERSON:RECOMMENDATION:Waive the reading of the ordinance text in its entirety, read by title only, and introduce for firstreading an Ordinance entitled “AN ORDINANCE OF THE CITY OF PALM SPRINGS,CALIFORNIA, AMENDING SECTION 2.16.040 RELATING TO THE SELECTION OFCHAIRPERSON FOR THE PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION.”

Attachments3A Proposed Ord. Re Airport Comm. Chairperson Appt.


DATE: November 28, 2018 LEGISLATIVE

SUBJECT: PROPOSED ORDINANCE TO ALLOW ANY AIRPORT COMMISSION MEMBER TO SERVE AS CHAIRPERSON

FROM: David H. Ready

BY: Office of the City Clerk Department of Aviation

SUMMARY

The City Council will consider the introduction of an ordinance to allow any of the nineteen members, not just a member from the city of Palm Springs, to serve as chairperson as well as clean-up of outdated language contained in the same section.

RECOMMENDATION :

Waive the reading of the Ordinance text in its entirety, read by title only, and introduce for first reading an Ordinance entitled "AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 2.16.040 RELATING TO THE SELECTION OF CHAIRPERSON FOR THE PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION."

STAFF ANALYSIS:

The Airport Commission is comprised of nineteen members, all appointed by the Palm Springs City Council. Ten (1 0) who are City of Palm Springs residents, eight (8) representatives nominated by each of their respective Coachella Valley cities, and one (1 ) representative nominated by the Riverside County Board of Supervisors.

At its meeting of November 14, 2018, the Palm Springs International Airport Commission voted in favor of recommending to the City Council an amendment to the Palm Springs Municipal Code allowing any Commissioner to serve as chairperson on the Commission.

Currently, the Code states the chairperson shall be a member from the city of Palm Springs and the proposed ordinance would allow any Commissioner to serve in that capacity.

ITEM No.2· A.

City Council Staff Report November 28, 2018 -- Page 2 Amend Municipal Code Regarding Appointment of Airport Commission Chairperson

Additionally, the ordinance removes outdated language which was effective through June 30, 1995.

FISCAL IMPACT:

None.

City Clerk

':=;2~~ David H. Ready, Esq., Ph .~ City Manager

Attachment: Proposed Ordinance

Thomas Nolan Executive Director, Airport

2

ORDINANCE NO.

AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTIONS 2.16.040 OF THE PALM SPRINGS MUNICIPAL CODE, RELATING TO THE SELECTION OF CHAIRPERSON FOR THE PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION.


SECTION 1. Section 2.16.040 of the Palm Springs Municipal Code is amended to read:

2.16.040 Officers-Committees.

Designation of the chairperson and vice-chairperson for the commission shall be governed by Section 2.06.020 of this code.:., e>Eoept that from the effeotive date of the ordinanoe oodified in this ohapter through June 30, 1995, the ohair and vise ohair shall remain as in effeot at the time of adoption of the ordinanoe oodified in this ohapter. The chairperson shall be a member from the oity of Palm Springs. The chairperson shall have the authority to appoint and affix the membership of such number of standing and temporary committees as he or she may find expedient for the performance of its duties.

SECTION 2. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30) days after passage.

PASSED, APPROVED, AND ADOPTED THIS_ day of ____ , 201_.

Robert Moon, Mayor ATTEST:

Anthony J. Mejia, City Clerk

CERTIFICATION

3

Ordinance No. Page2

STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS )

I, ANTHONY J. MEJIA, City Clerk of the City of Palm Springs, California, do hereby certify that Ordinance No. __ is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Springs City Council on November 28, 2018, and adopted at a regular meeting of the City Council held on the_ day of , 201_by the following vote:


Anthony J. Mejia, City Clerk City of Palm Springs, California

4

Mayor Robert Moon Councilmember Geoff Kors Mayor pro tern J.R. Roberts Councilmember Lisa Middleton Councilmember Christy Holstege City of Palm Springs 3200 E Tahquitz Canyon Way Palm Springs, California 92262

JEFFREY L. CLARKSON

333 North Farrell Drive

Palm Springs, California 92262

November 20, 2018

Re: Amendment to Section 2.16.040 of Palm Springs Municipal Code Chairperson of Palm Springs International Airport Commission

Dear Mayor, Mayor pro tern, and Councilmembers:

I am writing to you as a Palm Springs resident and as a commissioner representing the city of Palm Springs on the Palm Springs International Airport Commission (the "Airport Commission").

This letter is in opposition to the ordinance amendment you are scheduled to consider regarding the chairperson of the Airport Commission. The current law requires the chairperson to be a commissioner from Palm Springs. The amendment you will be considering would eliminate this requirement, allowing non-residents to chair an important Palm Springs commission. This change is unnecessary and inappropriate.

As you may know, there are 19 commissioners on the Airport Commission- an unwieldy number, but there is a reason behind the large number. Eight regional cities besides Palm Springs have representatives on the Airport Commission, and Riverside County has one representative, for a total of nine. To maintain a majority of Palm Springs residents, there are ten commissioner positions- a majority- from Palm Springs.

This Palm Springs majority makes sense because the Palm Springs International Airport ("PSP") is a physical asset of the city of Palm Springs, not other desert cities and not Riverside County. These other jurisdictions certainly have an interest in the health of PSP, but they are not financially and otherwise invested in PSP like the city of Palm Springs.

5

As an example, when there was a recent need for increased security at PSP, the personnel to cover that need came from the Palm Springs Police Department, which of course cost money. When it was suggested at an Airport Commission meeting that the other jurisdictions benefitting from PSP might contribute funds, that suggestion was met with chuckles from the assembled commissioners. That reaction underscores the point that while these other jurisdictions may have an interest in PSP, it is not the vested interest that the city of Palm Springs has.

When all is said and done, PSP is an enterprise of the city of Palm Springs. In their wisdom, the drafters of the existing ordinance recognized this fact and gave Palm Springs commissioners the majority on the Airport Commission. They also mandated that the chairperson of the Airport Commission be from Palm Springs. This formulation makes sense, and there is no reason to change it.

You may be informed that the Airport Commission as a whole recommended the amendment you are considering. That is true, but you should note two important factors regarding that vote:

1) There are two vacancies on the Airport Commission, both Palm Springs representatives. These unfilled vacancies give the non-Palm Springs representatives a current majority on the Airport Commission.

2) Of the eight Palm Springs residents on the Airport Commission, five of us- a majority of your constituent commissioners representing Palm Springs- voted against recommending the amendment.

The Palm Springs City Council now has the final decision. The chairperson of the Palm Springs International Airport Commission should be a Palm Springs resident like the chairpersons of all the other Palm Springs boards and commissions.

Very truly yours,

Jeffrey L. Clarkson

6


SubjectAPPROVAL OF A FINAL RELEASE OF THE PERFORMANCE TRUST DEED RELATED TOTHE DOWNTOWN PALM SPRINGS PROJECT:RECOMMENDATION:Authorize the City Manager to execute a Substitution of Trustee and Deed of FullReconveyance by and between the City of Palm Springs (Beneficiary) and Palm SpringsPromenade, LLC, (Trustor) for the Downtown Palm Springs Project in accordance with Section2(b)(10) of that certain Project Financing Agreement dated September 29, 2011, approved onSeptember 7, 2011. A6144.

Attachments4A Appv Release of Performance Trust Deed

Citv Council Staff Report .. DATE: November 28, 2018 UNFINISHED BUSINESS

SUBJECT: APPROVAL OF A FINAL RELEASE OF THE PERFORMANCE TRUST DEED RELATED TO THE DOWNTOWN PALM SPRINGS PROJECT

FROM : David H. R_eady, City Manager

BY: Marcus L. Fuller, Assistant City Manager

SUMMARY

This action recommends that the City Council authorize the City Manager to execute a Substitution of Trustee and Deed of Full Reconveyance document to release the Performance Trust Deed used as security to ensure completion of "Private Improvements" (the commercial I retail I hotel development on Blocks A, B and C) and the "Public Improvements" of the Downtown Palm Springs Project. Release of the Trust Deed reflects the Developer's compliance with the obligations secured by it.

RECOMMENDATION:

Authorize the City Manager to execute a Substitution of Trustee and Deed of Full Reconveyance by and between the City of Palm Springs (Beneficiary) and Palm Springs Promenade, LLC, (Trustor) for the Downtown Palm Springs Project in accordance with Section 2(b)(1 0) of that certain Project Financing Agreement dated September 29, 2011, approved on September 7, 2011; (A6144)


Palm Springs Promenade, LLC

A search of records available through the Secretary of State of California shows that Articles of Organization were filed on February 25, 2002, for Palm Springs Promenade, LLC, a single member California limited liability company, (hereafter "PSP"); at that time, John Wessman was the single manager or member of PSP. An Amendment to Articles of Organization for PSP was filed on January 4, 2016, identifying that PSP would be managed by more than one manager. A Statement of Information for PSP, filed March 3, 2016, identified John Wessman and Michael Braun as managers of PSP. Most recently, on May 23, 2017, a State of Information for PSP listed only one manager -Michael Braun.

ITEM NO. t.( . A .

2

City Council Staff Report November 28, 2018 -- Page 2 Release of Deed of Trust- Downtown Palm Springs Project

The ownership interests of PSP consists of the following: 91 °/o interest by Grit Development, LLC, a California limited liability interest; 8°/o interest by Michael Braun, individually; and 1 °/o interest by PS Promenade, Inc., a California corporation.

With regard to Grit Development, LLC, a search of records available through the Secretary of State of California shows that as of May 2, 2017, Grit Development, LLC, was a company managed by a single manager, Michael Braun. The company name is new, with the prior name having been "Wessman Holdings, LLC." Mr. Braun was a manager or member of Wessman Holdings as reflected in a Statement of Information filed with the Secretary of State on April 28, 2017. As of November 3, 2016, Wessman Holdings, LLC had more than one manager, and Mr. Braun was engaged as such at that time. Previously, as of October 25, 2015, Mr. Braun and John Wessman were both managers of Wessman Holdings, LLC. John Wessman filed the articles of organization of Wessman Holdings, LLC on January 24, 2002. According to a statement from Grit Development, LLC, it is owned by a family trust for the benefit of Sandra Wessman and John Wessman, with Sandra Wessman and Michael Braun serving as the co-trustees.

With regard to PS Promenade, Inc., a California corporation, a search of records available through the Secretary of State of California shows that as of May 23, 2017, PS Promenade, Inc., was a corporation with the following listed officers: Michael Braun (CEO/CFO) and Octavia Fernandez (Secretary), with Michael Braun as the only listed Director. Previously, per a Statement of Information filed May 2, 2012, the listed officers were John Wessman (CEO/Secretary) and Michael Braun (CFO), with John Wessman and Sandra Wessman listed as the Directors. Articles of Incorporation for PS Promenade, Inc., were filed on April 10, 2002. According to a statement from Grit Development, LLC, PS Promenade, Inc., is owned by the Wessman Family Trust with Sandra Wessman and Michael Braun serving as co-trustees.

According to a written statement in November 2017, John Wessman confirmed that in February 2017 he has formally retired and withdrew from management of Grit Development, LLC, and all other related Wessman owned entities, including Palm Springs Promenade, LLC.

BACKGROUND:

On December 2, 2009, the City Council adopted Ordinance No. 1764, adopting the Museum Market Plaza Specific Plan, Case No. 5.1204, (the "Specific Plan").

On September 7, 2011, the City Council adopted Resolution No. 23018, authorizing the City and Palm Springs Promenade, LLC, (the "Developer") to enter into a Project Financing Agreement ("PFA" - Agreement No. 6144) applicable to the financing, development, redevelopment, creation and refurbishment of public and private improvements within the Specific Plan area. A copy of the PFA, as amended, is included as Attachment 1.

3

City Council Staff Report November 28, 2018 -- Page 3 Release of Deed of Trust - Downtown Palm Springs Project

The PFA included, among other things, a Site Plan and Project Description depicting the proposed improvements, including new public streets described as Main Street, Andreas Road, and the Belardo Road extension as shown below.

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The PFA describes the "Public Assets," "Public Improvements," and "Private Improvements as follows:


(Recital E): City will provide: 1) $32 million dollars rcity Payment") for the City to acquire certain property and interests It( Public Assets'? as referenced in this Agreement, and fund project incentives for the completion of the Project; and 2) $11 million dollars rPublic Improvement Payment'} to create and refurbish (with respect to the Public Assets) public improvements as depicted on the Project Site Plan and described in the Project Description rPrivate Improvements'}. As used herein, with respect to Public Improvements, ttrefurbishment" means rehabilitation of the Parking Facilities ... to be acquired by the City to a top quality, clean, safe, and operable condition; and, with respect to Private Improvements, ~~creation" means demolition and construction work sufficient to install and complete top quality new buildings ... In view of the fact that private vertical development of Blocks D, E, and G will be deferred for future ~~phases'~ completion of Private Improvements as and to the extent referenced in Section 2 of the Project Description could be, and sometimes is, referred to as ~~Phase 1" of the Revitalization Plan. Nothing in this Agreement obligates the City to fund or contribute to any future ~phases" of Private Improvements, or obligates Developer to construct any future ~phases" of Private Improvements.

"Public Improvements" were described as: (a) New public streets will be constructed as follows: (i) a new public street will be created from Palm Canyon Drive to Museum Drive; (ii) Belardo Road will be extended from Tahquitz Canyon Way to the easterly terminus of Museum Drive; and (iii) West Andreas Road will be created from Palm Canyon Drive to the Belardo Road extension; and {b) Refurbished Public Parking -Existing parking improvements within the [Desert Fashion Plaza] Area will be purchased and refurbished ...

"Private Improvements" were generally described as new commercial and retail buildings on Blocks A, B and C, with demolition of existing improvements on Blocks D, E, F and G for future development.

Section 2(b)(1 0) of the PFA. required that the Developer provide to the City a Performance Trust Deed to encumber the Specific Plan area, which was recorded concurrently with the close of escrow with the City's acquisition of the Public Assets from the Developer. The Performance Trust Deed was used to secure the Developer's performance required under the PFA, with respect to completion of the Private Improvements and Public Improvements identified in the PFA. The Performance Trust Deed was recorded as Document No. 2012-0298857 on June 27, 2012, encumbering the various parcels of land located within the Specific Plan area, with the City as Beneficiary.

A copy of the Performance Trust Deed is included as Attachment 2.

4


STAFF ANALYSIS:

The Performance Trust Deed was security to ensure Developer's compliance with its obligation to complete the Private Improvements (commercial development on Blocks A, B and C) and Public Improvements identified in the PFA. Section 2(b)(1 0) of the PFA which requires the Deed of Trust, further required its release as follows:

Therefore, and based upon the understanding and agreement of the parties that ·the purpose of said Performance Deed of Trust is to secure completion of the Private Improvements and the Public Improvements, once the Private Improvements and the Public Improvements have been substantially completed, the Performance Trust Deed shall be released and reconveyed in full, regardless of the amount of additional private funds actually deposited by Developer, or the amount of the outstanding balance then shown as due and/or owing under the Performance Trust Deed.

The Developer has satisfied this obligation, and staff recommends Council authorize a full release of the Performance Trust Deed in accordance with Section 2(b)(1 0) of the PFA. A copy of the Substitution of Trustee and Deed of Full Reconveyance is included as Attachment 3.


The requested City Council action is not a "Project" as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a "Project" means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to authorize execution of partial releases of the Performance Deed of Trust, and is exempt from CEQA pursuant to Section 15378(b), in that a "Project" does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.

FISCAL IMPACT:

The Deed of Trust was security to ensure completion of Private and Public Improvements to be constructed by Developer under the terms of the PFA. These Private and Public Improvements have been completed, and the financial security provided to the City in the form of the Deed of Trust is no longer necessary. There is no fiscal impact resulting from its release.

5

City Council Staff Report November 28, 2018 -- Page 6 Release of Deed of Trust - Downtown Palm Springs Project

Edward Z. Kotkin City Attorney

":;2~ David H. Ready, E7c(., P:: City Manager

Attachments:

1. Project Financing Agreement 2. Performance Trust Deed

Marcus L. Fuller, rvlPA, P.E., P.L.S. Assistant City Manager/City Engineer

3 . Substitution of Trustee and Deed of Full Reconveyance

6

ATTACHMENT 1

7

• •

AGREEMENT NO. A6144 Project Financing Agreement

CITY OF PALM SPRINGS AND

PALM SPRING PROMENADE, LLC

8

,. ..••. ~ •• _...~ ... p. ····-~·~·· ........ .

PROJECT FINANCING AGREEMENT

THIS PROJECT FINANCING AGREEMENT ("Agreement"), dated this Zlt "'tiay of September, 2011, is entered into by and between the City of Palm Springs, a California municipal corporation and charter city f'City .. }, and Palm Springs Promenade, LLC, a California limited liability company ("Developer''), with reference to the following:

RECITALS

A. Specific Plan and DFP Area. On December 2, 2009, the City adopted, by unanimous vote of the City Council, Ordinance 1764, which approved the Museum Market Plaza Specific Plan ("Specific Plan"). The Specific Plan covered two existing downtown commercial areas, i.e., the area commonly known as Desert Fashion Plaza e'DFP Area"), and the area ·commonly known as the Town and Country Center ("The Center"). This Agreement relates only to the DFP Area, which is (or within fifteen (15) days of fuU execution of this Agreement) owned by PSP LLC, and does not include The Center, including without limitation Parcels K~1 and K-2 as identified in the Specific Plan.

B. · Redevelopment. The Parties have long recognized that redevelopment of the DFP Area is critical to restoring economic vitality to downtown Palm Springs, and that successful redevelopment will, as is almost always the case with downtown areas, require public-private participation and funding.

C. Revitalization Plan. In early 2011, the Mayor and City Council commenced a series of "visioning'' sessions with community leaders and concerned citizens. As a result of that effort, concepts evolved and subsequent to the "visioning" sessions have been refined and finalized into a plan for the DFP Area ("Revitalization Plan1

'), which is depicted on the "Project Site Plan" attached hereto as Exhibit "A" and described in the "Project Description" attached hereto as Exhibit "B" (the "Project'').

D. Public Participation. In order to evaluate economic feasibility of the Revitalization Plan, and determine the extent of required public participation, the City engaged Keyser Marston Associates, Inc. ("KMA"), a qualified and reputable public financial consultant that has worked with City on many prior occasions. At the request of City, KMA proceeded to analyze projected redevelopment costs and post redevelopment rental revenues in order to determine the extent to which public participation would be required for the Project. KMA projected that the total redevelopment project costs would be at least $100 million dollars. Using conservative. but reasonable assumptions with respect to construction costs and rental revenues, KMA determined that $40 to $45 million dollars in public participation would be necessary to fund the Project.

1

9

• • E. Public Assets and Improvements and Private Improvements. Based on

the foregoing, but subject to the City identifying sources of funding as provided in Section 1.A.(1)(a) below, the parties have agreed to proceed with the Revitalization Plan. City will provide: 1) $32 million dollars ("City Payment") for the City to acquire certain property and interests ("Public Assets") as referenced in this Agreement1 and fund project incentives for the completion of the Project; and 2) $11 million dollars ("Public Improvement Payment'') to create and refurbish (with respect to the Public Assets) public improvements as depicted on the Project Site Plan and described in the Project Description (11Public Improvements"). The Developer will create and refurbish private improvements as depicted on the Project Site Plan and described in the Project Description ("Private Improvements"). As used herein, with respect to Public Improvements, "creation" means demolition and construction work sufficient to install and complete the new public streets referenced in the Project Description, and "refurbishment" means rehabilitation of the Parking Facilities (defined in Section F.2 below) to be acquired by the City to a top quality, clean, safe, and operable condition; and, with respect to Private Improvements, "creation" means demolition and construction work sufficient to install and complete top quality new buildings in Blocks A·2, C, and F, and finished pads for future vertical development in Blocks D, E, and G, as referenced in the Project Description, and "refurbishment" means upgrading the existing building in Block A-1 with top quality new facades, as referenced in the Project Description. In view of the fact that private vertical development of Blocks D, E, and G will be deferred for future "phases", completion of Private Improvements as and to the extent referenced in Section 2 of the Project Description could be, and sometimes is, referred to as "Phase 1" of the Revitalization P~an. Nothing in this Agreement obligates the City to fund or contribute to any future "phases" of Private Improvements, or obligates Developer to construct any future "phases" of Private Improvements.

F. Citv Acquisition of Public Assets. The Revitalization Plan calls for the City to acquire Public Assets as follows:

1. Land. Land to be acquired by the Oty ("Land") includes (a) land located under proposed new public streets as depicted on the Project Site Plan and described in the Project Description; (b) land located below the three level parking structure at the northwest corner of the DFP Area; (c) land located below the two level parking structure at the southwest comer of the DFP Area; (d) land located below the underground parking.garage that connects said three level parking structure and said two level parking structure; (e) land shown as Blocks H-1 and H-2 on the Project Site Plan; and (f) easements for sidewalks and pedestrian rights-of-way and restroom facilities. Legal descriptions covering the land, and each portion thereof, shall be separately verified and signed by both of the Parties prior to or concurrently with final execution. The Parties acknowledge that the california Subdivision Map Act allows conveyances to public agencies such as the City without the necessity of subdivision or parcel map recordation and, therefore, the parties agree that conveyances to the City per this Agreement may be made without such map recordation.

2

10

• • 2. Parking Facilities. Existing parking facilities to be acquired and

refurbished by the City and then used for free public parking ("Parking Facilities'') include: the three level parking structure located at the northwest corner of the DFP Area; the two level parking structure located at the southwest corner of the DFP Area; the underground parking garage that connects said three level parking structure and said two level parking structure; parking below developed portions of the DFP Area, and all associated ramps, driveways, connection tunnel, approaches, elevators and escalators. legal descriptions covering the Parking Facilities, and each portion thereof, shall be separately verified and signed by both of the Parties prior to or concurrently with final execution. Such legal descriptions may include three dimensional airspaces to be acquired by the City.

AGREEMENT

1. Acquisition of Public Assets and Funding of Public Improvements. Upon and subject to the terms and provisions of this Agreement, City shall acquire the Public Assets and provide funding for the Public Improvements.

A. Acquisition Escrow. At least ten (10} days prior to the Effective Date of this Agreement, an escrow ("Acquisition Escrow'') shall be opened by the Parties with a mutually agreeable and reputable escrow holder ("Escrow Holder"), and City and Developer shall each execute and deliver escrow instructions consistent with this Agreement and as reasonably requested or required by the Escrow Holder. The parties agree that escrow fees and costs of the Acquisition Escrow (and the Private Improvement Escrow referenced in Section 2.A. below, and the Public Improvement Escrow referenced in Section 2.A.(b)(7) below) shall be shared equally by the parties. Prior to the close of escrow and subject to the terms of this Agreement, City shall deposit the City Payment and the Public Improvement Payment into the Acquisition Escrow.

(1) Contingencies to Close of Acquisition Escrow. Close of the Acquisition Escrow is subject to satisfaction of each of the following contingencies:

(a) Citv Funding. A first contingency to close of the Acquisition Escrow shall be the City identifying funding sources for its obligations under this Agreement. City is currently exploring potential sources of funding for this and other desired public projects. In any event, if, by December 21, 2011, City has not (i) identified funds sufficient to cover its obligations under this Agreement, or (ii) been placed in a position of being reasonably certain that such funds will promptly (within 180 days) be identified and/or reserved, then, in that event, City shall have the right, by delivery of written notice to Developer by no later than December 22, 2011 (the "Effective Date"), to terminate this Agreement and cancel the Acquisition Escrow, without penalty or any damages for breach of any term of this Agreement.

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• • (b) Condition of Title. A second contingency to close

of the Acquisition Escrow shall be the conveyance by Developer to City of good and marketable title to the Public Assets, without encumbrances (except as approved by City), as evidenced by a CLTA title insurance policy with coverage in the sum of $32,000,000 (with such title endorsements as City may reasonably request or require) issued by a mutually agreeable and reputable title insurance company ("Title Company"). In this regard, the parties acknowledge that prior to the Effective Date, City will receive and review a preliminary title report ("Preliminary Report'') covering the entire DFP Area, which shall set forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings relating to the entire DFP Area. Concurrently therewith, City shall receive (i) copies of all recorded documents listed as exceptions to title on the Preliminary Report, and (ii) an easement plat prepared by the Title Company which shows the locations of all recorded easements affecting the entire DFP Area. By reviewing the foregoing documents, the City will be able to determine which exceptions to title affect the Land (or portions thereof) and/or the Parking Facilities (or portions thereof), which are being acquired by City. It is understood that legal descriptions for each portion of the Land (and Parking Facilities thereon) will be called out by two dimensional area references, and that legal descriptions for portions of the Parking Facilities not located over the Land will be called out by three dimensional airspace references. City shall, with respect to Land and Parking Facilities to be acquired by City, approve or disapprove each exception shown on the Preliminary Report and each encroachment, overlap, or boundary line dispute, or any other matter that materially and adversely affects title or that violates any law, rule, or regulation (each an "Exception") within twenty (20) days after City receives the Preliminary Report, whichever is later. City's failure to object within the twenty (20) day period shall be deemed to be approval of the Exceptions. If any Exception is disapproved (each a "Disapproved Exceptionn), Developer shall, within thirty (30) days following expiration of the twenty (20) day period provided under this Section, use its best efforts to cause each Disapproved Exception to be discharged, satisfied, released, or terminated, as the case may be, of record, and in a form that is reasonably satisfactory to City and Escrow Agent, all at Developer's sole cost and expense. Developer authorizes Escrow Agent to disburse from proceeds otherwise disbursable to Developer upon Closing a sum sufficient to discharge any Disapproved Exception that may be discharged only by the payment of money. If Developer is unable to obtain a discharge, satisfaction, release, or termination within the period specified above, City shall have the right to waive the Disapproved Exception and proceed with Closing, accepting title to the Property subject to the Disapproved Exception, or to terminate this Agreement and cancel the Acquisition Escrow, without penalty or any damages for breach of any term of this Agreement.

(c) Physical Condition. A third contingency to close of the Acquisition Escrow shall be the conveyance to City of the Public Assets, in substantially the same physical condition that exists as of the Effective Date of this

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• • Agreement. In this regard, the Developer, prior to September 22, 2011, shall provide the City with full disclosure of the physical condition of the Public Assets, including without limitation all maintenance records and all studies and reports prepared on its behalf or otherwise in its possession. The parties acknowledge that prior to October 31, 2011, City and its independent consultants will perform thorough examinations of such Public Assets, and approve the existing physical condition thereof, with the understanding that such assets shall be conveyed "as is" and "with all faults'' so long as the City reasonably determines that such physical condition is materially consistent with estimates of costs of creating and refurbishing Public Improvements as identified in a report by Developer's consultant, PENTA, submitted to the City prior to execution of this Agreement ("Developer's Disclosure"). As of the date of execution of this Agreement, Developer's Disclosure shows total costs of creating and refurbishing Public Improvements (as described in Section E above and Section 2 below) at $11,000,000. In the event the City reasonably determines that the physical condition of the Public Assets, or any portion thereof, is materially inconsistent with the Developer's Disclosure, City shall have the right, by delivery of written notice to Developer by no later than October 31, 2011, to terminate this Agreement and cancel the Acquisition Escrow, without penalty or any damages for breach of any term of this Agreement.

The foregoing notwithstanding, the parties agree as follows: Using the funds in the Public Improvement Escrow (as referenced in Sections l.A.(2)(b) and 2.8.(7) below), Developer shall be responsible for paying all costs and expenses incurred in connection with obtaining entitlements for and constructing (creating and refurbishing) Public Improvements. In the event such creation and refurbishment work exceeds the sum of $11,000,000, Developer shall promptly pay any and all costs in excess of $11,000,000; in the event such creation and refurbishment work is accomplished for less than $11,000,000, any savings (in the form of amounts remaining In the Public Improvement Escrow after completion of the Public Improvements and City issuance of a written certificate or acknowledgment of completion as provided in Section 2 below) shall be transferred from the Public Improvement Escrow into the Private Improvement Escrow (as referenced in Sections 1.A.(2)(b) and 2.A below), and be used to help complete the Private Improvements. Based on Developer's agreement to pay any costs of creation and refurbishment of Public Improvements in excess of $11,000,000, City shall waive its rights to terminate the Agreement and cancel the Acquisition Escrow under the provisions of this Section.

(2) Close of Acquisition Escrow. Promptly upon satisfaction of each and all of the above contingencies or upon the Effective Date, whichever event occurs last .. the Acquisition Escrow shall be closed and conveyances and transfers shall occur as follows:

(a} Public Assets to City. Upon close of the Acquisition Escrow, good and marketable title without encumbrance (except as approved by City) to the Public Assets shall be conveyed to City, and City shall receive title insurance as

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• • referenced above. The form of the Grant Deed shall be as reasonably requested or required by Title Company to issue title insurance consistent wi~ ~he provisions of this~ Section A.1(2)(a), and certificates of compliance shall be issued .fTthe City as necessary and/or appropriate for the parcels and the airspace to be conveyed to the City and the parcels to be retained by the Developer.

(b) City Payment. Upon close of the Acquisition Escrow, the City Payment shall be transferred by Escrow Holder directly into the Private Improvement Escrow referenced in Section 2.A. below, from which releases will occur in increments based on periodic written authorizations from the IFC Agent referenced in Section 2.8.(2) below, solely for the creation and refurbishment of the Private Improvements. Upon close of the Acquisition Escrow, the Public Improvement Payment shall be transferred by Escrow Holder directly into the Public Improvement Escrow referenced in Section 2.8.(7) below, from which releases will similarly occur in increments based on periodic written authorizations from the IFC Agent, solely for the creation and refurbishment of the Public Improvements.

2. Creation and Refurbishment of Public and Private Improvements. Once the Acquisition Escrow has been closed, the parties shall continue with implementation of the Revitalization Plan, and creation and refurbishment of Public Improvements and Private Improvements, in accordance with the provisions of this Agreement. As indicated in Section l.A.(l)(c) above, Developer shall be responsible for creation and refurbishment of Public Improvements, and, as indicated in several sections in this Agreement, Developer shall be responsible for creation and refurbishment of the Private Improvements. The parties agree to work cooperatively together and exert commercially reasonable efforts to cause the Public Improvements and Private Improvements to be constructed and completed concurrently. Upon completion of the Public Improvements, City shall execute and deliver to Developer a written certificate or acknowledgment of completion, in form and substance reasonably satisfactory to Developer, and, upon completion of the Private Improvements, City shall execute and deliver to Developer a written certificate or acknowledgment of completion, in form and substance reasonably satisfactory to Developer. In ·connection with Public Improvements, any and all development mitigation fees of the City shall be waived by City. In connection with Private Improvements, City agrees that Developer shall be entitled to credits against (or waivers of) any and all development mitigation fees of the City to the extent of (and that would otherwise have been covered by) existing and prior improvements and facilities (approximately 358,000 square feet of space) previously developed within the DFP Area. Further, with respect to development mitigation fees that would normally be collected by City for remission to another public agency or entity, City will cooperate with Developer in efforts to mitigate and reduce such fees to the extent reasonable and legally feasible. For the purpose of this Agreement, the term "development mitigation fees" means fees or payments in lieu of dedication of land and/or construction of improvements as provided under law, including without limitation, public art, parks (or Quimby Act requirements), MSHCP, and TUMF.

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• • A. Open Private Improvement Escrow. Concurrently with close of

the Acquisition Escrow, a separate escrow ("Private Improvement Escrow'') shall be opened with Escrow Holder and the City Payment shall be transferred by Escrow Holder directly into the Private Improvement Escrow, and then be released, in increments, based on periodic written authorizations from the IFC Agent referenced in Section 2.8.(2) below, solely for the creation and refurbishment of the Private Improvements. The Private Improvement Escrow shall be administered pursuant to the terms of the "Private Improvement Escrow Agreement" attached hereto as Exhibit "Cl".

B. Schedule of Performance. With respect to the creation and refurbishment of Private Improvements and Public Improvements, Developer and City have approved and agreed to the "Schedule of Performance'' attached hereto as Exhibit 11D". As provided above, Developer shall be responsible for both Private Improvements and Public Improvements. In this regard, the parties contemplate and have agreed to actions and procedures as follows:

(1) Demolition of Bank of America Building. Once the City funding contingency, as referenced in Section l.A.(l}(a) above, has been satisfied, then Developer shall, at Developer's sole cost and expense, within sixty days thereafter, commence and complete demolition of the existing Bank of America building in the DFP Area. Developer shall clear the site, remove construction fencing installed in conjunction with its demolition and clearing operations, install landscaping and related fixtures, and allow public access thereon on this site pending vertical construction and/or demolition of other structures or improvements within the DFP Area. During such period of allowed public access, City shalf be solely responsible for operation, maintenance and repair, and shall indemnify Developer from and against all claims and/or costs incurred in connection therewith.

(2) Selection of IFC Agent. Once the City has advised Developer that the City funding contingency has been satisfied, City and Developer shall promptly select and enter into a written contract, under terms acceptable to Developer and City, with a mutually acceptable and reputable independent fund control agent

. (111FC Agent"), with general construction experience, that shall be responsible for

authorizing periodic releases, in increments, of funds from. the Private Improvement Escrow to go solely towards creation and refurbishment of the Private Improvements, and from the Public Improvement Escrow to go solely towards creation and refurbishment of the Public Improvements.

(3) Consultant Agreements for Private and Public Improvements. Once the IFC Agent has been engaged, Developer shall select and enter into contracts ("Consultant Agreements") with planners~ architects and/or engineers ("Project Consultants") as necessary to prepare plans and designs necessary to obtain architectural and engineering approvals for the Private Improvements and Public

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• • Improvements from appropriate City departments. All costs and expenses in this regard shall be paid, upon release authorizations by the IFC Agent, from funds in the Private Improvement Escrow for Private Improvements and from funds in the Public Improvement Escrow for Public Improvements.

(4) Building Permits for Private Improvements. Once architectural and engineering approvals for Private Improvements and Public Improvements have been received, Developer shall select and enter into Consultant Agreements with Project Consultants as necessary to prepare final plans and working drawings necessary obtain permits from appropriate City departments to construct the Private Improvements and Public Improvements. All costs and expenses in this regard shall be paid, upon release authorizations by the IFC Agent, from funds in the Private Improvement Escrow for the Private Improvements and from funds in the Public Improvement Escrow for the Public Improvements.

(5) Commencement of Private and Public Improvements. Once permits have been issued, Developer shall select and enter into contracts {"Construction Contracts") with construction contractors and material suppliers ("Construction Contractors") as necessary to commence creation and refurbishment of the Private Improvements and Public Improvements. All costs and expenses in this regard shall be paid, upon release authorizations by the IFC Agent, from funds in the Private Improvement Escrow for the Private Improvements and from funds in the Public Improvement Escrow for the Public Improvements.

(6) Completion of Private Improvements. Developer shall be responsible for completion of the Private Improvements, and shall commence depositing additional private funds· into the Private Improvement Escrow, from time to time as and when needed, to be used to complete creation and refurbishment of the Private Improvements. Prior to drawing building permits for construction of any vertical improvements, Developer shall make an initial deposit of at least $2,000,000 into the Private Improvement Escrow. All costs and expenses for the completion of the Private Improvements, including fees and taxes, shall be paid, upon release authorizations by the IFC Agent, from funds in the Private Improvement Escrow. Developer shaH be solely responsible for depositing additional private funds into the Private Improvement Escrow as necessary to complete the Private Improvements.

(7) Public Improvements. As noted in Section 1.A.(2)(b) above, upon close of the Acquisition Escrow, the Public Improvement Payment shall be transferred by Escrow Holder directly into a separate escrow ("Public Improvement Escrow'') to be opened with Escrow Holder. The Public Improvement Escrow shall be administered pursuant to the terms of the "Public Improvement Escrow Agreement'' attached hereto as Exhibit 1'C2", and releases will occur in increments based on periodic written authorizations from the IFC Agent for the creation and refurbishment of the Public Improvements. As indicated in Section l.A.(l)(c) above, Developer shall be

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• • responsible for completion of the Public Improvements, and shall commence depositing additional private funds into the Public Improvement escrow, from time to time as and when needed, to be used to complete creation and refurbishment of Public Improvements. In this regard, Developer shall (1) submit all plans and designs of the Public Improvements to the City for review and approval, (2) submit all proposed change orders, if any, to the City for review and approval, and. (2) construct and install the Public Improvements in strict conformance with the plans and designs as approved by the City. All costs and expenses for the completion of the Public Improvements, including fees and taxes, if any, shall be paid upon rele~se authorizations by the IFC Agent, from funds in the Public Improvement Escrow. Developer shall be solely responsible for depositing additional private funds into the Public Improvement Escrow as necessary to complete the Public Improvements.

(8) Blocks D. E. and G. As part of completion of the Private Improvements, Developer shall (a) within Block 0 leave the surface area as existing parking, (b) within Block E install temporary grass landscaping, and (c) within Block G leave the surface area as existing parking and/or install temporarily grass landscaping thereon. Thereafter, with respect to the surface area of each such Block, and until construction of vertical improvements is ready to commence thereon, City shall be solely responsible for operation, maintenance and repair of same, and shall indemnify Developer from and against all claims and/or costs incurred in connection therewith. In this regard, Developer will provide City with a temporary license or easement, in form and substance reasonably acceptable to City and Developer, as necessary for City to operate, maintain, and repair each such Block, and allow public access thereon.

(9) Blocks H .. 1 and H-2. With respect to Block H-1 (northerly parcel east of Art Museum), the following shall apply: (i) Developer shall, at its cost and as part of its creation and refurbishment work, fill in and grade same to a reasonably level condition (and City shall provide to Developer a temporary license to go upon Block H-1 to do so); (ii) the Parties acknowledge that the easterly property line of Block H-1 should be adjacent to the westerly side of the multi-plex theater and the Developer shall apply for and secure a lot line adjustment to adjust easterly the eastern property line of Block H-1 to affect and implement this intent of the Parties, in the event the multi-plex theater is not built at the current property line between Block H-1 and the multi-plex theater site. With respect to Block H-2 (southerly parcel east of ·Art Museum), the parties agree that it shall remain in its current condition pending future development desired by the City.

(10) Performance Trust Deed. To secure performance of Developer's obligations under this Agreement to complete the Private Improvements and the Public Improvements, Developer shall provide to City a deed of trust ("Performance Trust Deed") in the form of Exhibit "E" attached hereto. The Performance Trust Deed shall encumber the DFP Area, and be recorded by Escrow Holder concurrently with close of the Acquisition Escrow, as referenced in Section

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• • 1.A.(2) above. The Performance Trust Deed shall be in the initial amount of $28,000,000 ("Security Amount"); however, the Security Amount (and the balance thereof) shall not bear interest and shall be reduced, from time to time, as, when, and to the extent Developer makes deposits (including the $2,000,000 deposit referenced above) into the Private Improvement Escrow to complete the Private Improvements or the Public Improvement Escrow to complete the Public Improvements. The parties acknowledge and agree that the Security Amount is likely to be in excess of the amount of additional private funds that Developer may be required to deposit into the Private Improvement Escrow to complete the Private Improvements and the Public Improvement Escrow to complete the Public Improvements. Therefore, and based upon the understanding and agreement of the parties that the purpose of said Performance Trust Deed is to secure completion of the Private Improvements and the Public Improvements, once the Private Improvements and the public Improvements have been substantially completed, the Performance Trust Deed shall be released and reconveyed in full, regardless of the amount of additional private funds actually deposited by Developer, or the amount of the outstanding balance then shown as due and/or owing under the Performance Trust Deed. In the event of any inconsistency between the terms of this Agreement and the terms of the Performance Trust Deed, the terms of this Agreement shall prevail. There shall be no other monetary encumbrance or security interest of any kind on the DFP Area as of the Effective Date (other than real property taxes and assessments which are a lien not yet due and payable and Developer shall promptly pay such property taxes and.assessments when made due and payable), nor shall any monetary encumbrance or security interest of any kind (other than mechanics lien claims as authorized by California law during the construction process, and Developer shall promptly resolve or defend such liens) be placed on the DFP Area after the Effective Date and prior to the City's issuance of a written certificate or acknowledgment of completion of the Private Improvements as provided in Section 2 above. As used in this Agreement, "Private Improvements" do not include tenant improvements, except with respect to the multiplex theater which will have tenant improvements and be ready to receive the theater operator's furniture, fixtures and equipment (projectors, sound equipment, seating, screens, etc.) and thus become fully operable as part of the Revitalization Plan. As noted above, at such time as the Private Improvements and the Public Improvements have been substantially completed by Developer, the Performance Trust Deed shall be released and reconveyed in full, regardless of the amount of the outstanding balance then shown as due and/or owing thereunder.

C. Close Private Improvement Escrow. Upon substantial completion of all Private Improvements, the Private Improvement Escrow shall be closed and Developer shall be released, except for "punchlist" items, from any and all further obligations, under this Agreement or otherwise, to create and/or refurbish Private Improvements, or any other improvements.

D. Close Public lmorovement Escrow. Upon substantial completion of all Public Improvements, the Public Improvement Escrow shall, subject to Section

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• • l.A.(l)(c) above, be closed and Developer shall be released, except for "punchlist11

items, from any and all further obligations, under this Agreement or otherwise, to create and/or refurbish Public Improvements, or any other improvements.

E. local Contractors. The Developer will endeavor to give consideration to using businesses and contractors whose work force resides in the Coachella Valley, however, in no case or event will the Developer have any legal obligation to do so.

F. Commencement of Development Obligations. Anything herein to the contrary notwithstanding, with respect to the Schedule of Performance, it is understood and agreed that the development obligations of Developer shall not commence until the Acquisition Escrow has closed and funds have been transferred into the Private Improvement Escrow and Public Improvement Escrow as provided herein except that Developer shall complete the demolition of the Bank of America Building as provided under Section 2.8.1 of this Agreement.

3. Develooer Default. Anything in this Agreement to the contrary notwithstanding, the following shall apply:

A. Default by Developer- Opportunity to Cure. From the close of the Acquisition Escrow (and opening of the Private Improvement Escrow and Public Improvement Escrow) until substantial completion of the Private Improvements and the Public Improvements, if Developer fails to diligently do and perform all things reasonably necessary on the part of Developer to pursue creation and refurbishment of the Private Improvements and the Public Improvements, including failure to timely achieve "major milestones" described in the Schedule of Performance, then, in that event, City shall be entitled to deliver to Developer written notice of default, specifying, in detail, all facts alleged by City to constitute such default. For a period of 120 consecutive days after receipt of such notice of default, Developer shall have the right to commence and complete cure of the alleged default; provided, however, if the default is of such a nature as to reasonably require more than 120 days to cure, as reasonably determined by the City, Developer shall have such additional time as is reasonably necessary to complete such cure.

B. Developer Failure to Cure - City Rights and Remedies. If, at the expiration of the applicable cure period, Developer has not reasonably completed such cure, then, in that event, City shall have the right to exercise any and all rights and remedies provided for in (i) the Performance Trust Deed referenced in Section 2.8.(6) above, and (ii) the Assignments referenced in Section 3.C below. At any foreclosure sale under the Performance Trust Deed, City shall have the right to issue a credit (non·cash) bid in an amount equal to the then balance (reduced to the extent of Developer deposits into the Private Improvement Escrow and the Public Improvement Escrow as referenced in Section 2.8.(6) above) of the Performance Trust Deed. In the event of any

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• • inconsistency between the terms of this Agreement and the terms of the Performance Trust Deed, the terms of this Agreement shall prevail. At such time as the Private Improvements and Public Improvements have been substantially completed by Developer, the Performance Trust Deed shall be released and reconveyed in full, regardless of the amount of the outstanding balance then shown as due and/or owing thereunder.

C. Assignment of Consultant and Contractor Agreements. With respect to each Consultant Agreement and each Contractor Agreement, as referenced in Sections 2.8.(3) and 2.8.(5) above, Developer shall, in accordance with the Schedule of Performance, execute and deliver to the City an assignment {"Assignment"), from Developer to City, in substantially the form and substance of Exhibit "F" attached. Each such Assignment shall include, without limitation, assignment of all of Developer's rights under the applicable Consultant Agreement or Contractor Agreement. In the event of any inconsistency between the terms of this Agreement and the terms of any such Assignment, the terms of this Agreement shall prevail. The Developer shall also assign _ to the City the Developer's rights to all plans and specifications prepared pursuant to this Agreement and all permits and entitlements relating to the Project. At such time as the Private Improvements and the Public Improvements have been substantially completed by Developer, each such Assignment shall be fully released.

4. Miscellaneous Specific Provisions. The parties further agree to miscellaneous additional provisions as set forth below.

A. local Requirements Applicable to Agreement. This Agreement is subject to the City's General Plan, the Museum Market Plaza Specific Plan, the Palm Springs City Charter, the Palm Springs Municipal Code and ordinances, and the Redevelopment Plan for Merged Area No. 1, with respect to the Project ("Governmental Regulations").

B. City Fast Track Process. The City shall use good faith efforts, within applicable legal constraints and consistent with applicable City policies, to take such actions as may be necessary or appropriate to effectuate and carry out this Agreement in a timely and commercially reasonable manner and to reasonably "fast track" the processing of all applications submitted by Developer to pursue the Revitalization Plan and/or create and refurbish the Private Improvements and Public Improvements.

C. Subdivision Issues. The parties acknowledge and agree that the California Subdivision Map Act allows, without the necessity of recording a subdivision or parcel map, conveyances to and from public agencies such as the City, and leasing and financings of portions of parcels of property designated for commercial use. Nevertheless, in connection with pursuit and implementation of the Revitalization Plan, Developer may desire to record one or more subdivision or parcel maps against the DFP

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• • Area (or portions thereof). In this regard, the parties agree to cooperate with each other, and the City agrees to reasonably "fast track" the processing of any subdivision or parcel map desired by Developer (including any vesting tentative map), and to promptly provide and issue certificates of compliance as and to the extent reasonably necessary or expedient as determined by the City. The parties acknowledge that the Title Company may require certificates of compliance to issue title insurance and, if so, the City shall promptly process and issue same.

D. Easement Agreement. Concurrently with close of the Acquisition Escrow, and as a part thereof, City and Developer shall execute and cause to be recorded with the Official Records of Riverside County, California, an Easement Agreement in the form of Exhibit "G 11 attached hereto. To the extent that, pursuant to the Easement Agreement, easements run to the benefit of Developer or City, each such benefitted Party shall receive (and pay for) reasonable title insurance covering such easements.

E. Escrow Matters. In the event of any inconsistency between the terms of this Agreement and the terms of any escrow instructions executed pursuant to this Agreement, the terms of this Agreement shall control unless a contrary Intent Is clearly expressed in the inconsistent escrow instructions. All escrow fees, charges, and title insurance costs for any escrow or title insurance called for herein shall be shared eq~ally by the parties. Unless otherwise provided herein, Escrow Holder shall process and handle all escrow matters contemplated herein in the manner that is customary in the Coachella Valley area of Riverside County.

F. Eminent Domain. Prior to entering into this Agreement, City expressed a desire to acquire all property covered by the Specific Plan by use of powers of eminent domain, and Developer expressed an intent to oppose any such effort. In that regard, this Agreement represents a negotiated compromise between City and Developer and, as a part hereof, City agrees as follows: In the event this Agreement is terminated by City as the result of the inability of City to identify and reserve City funding, as referenced in Section l.A.(l)(a) above, or for any other reason not the fault of Developer, City shall not, for a period of three (3) years following such termination, directly or indirectly or in any way, attempt to take or acquire all or portions of any properties or improvements covered by the Specific Plan via use or exercise of eminent domain, or any similar or related public power or powers of the City. The covenants and agreements of City pursuant to this Section 4.E shall survive and remain in effect for a period of three (3) years from and after any such termination by City.

G. Release. This Agreement is a voluntary agreement and Developer, on behalf of Developer and Developer's successors and assigns, fully releases City, the City's Redevelopment Agency, its officials, officers, attorneys, employees, and agents (the "Released Entities") from all claims and causes of action by reason of any damage that has been sustained, or may be sustained, as a result of City's or Agency's efforts,

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• • prior to execution of this Agreement, to acquire the Property or any preliminary steps thereto. Developer further releases and agrees to hold the Released Entities from any and all claims and causes of action by or on behalf of any leasehold interest in the DFP Area.

H. City's Sole liability. The City's sole liabilities to Developer or any third party are those obligations expressly and specifically provided in this Agreement.

I. Developer Right of First Refusal for Blocks H-1 and H-2. In the event that at any time in the future, City elects to sell Blocks H-1 and/or H-2, as shown on the Project Site Plan, or portions thereof, for solely private purposes, i.e., for purposes exclusive of public or non-profit purposes, Developer shall have a right of first refusal to match any offer received by City, and to purchase such Blocks H-1 and/or H-2, in accordance with the following: City shall promptly notify Seller that City has received an offer that it desires to accept and, concurrently therewith, provide Developer with an exact copy of such offer, and Developer shall have, for a period of sixty (60) days after receipt, the right to notify that Developer desires to match the terms of such offer and purchase the property. In such event, an escrow shall be promptly opened and closed with a reputable escrow company and City shall sell (and convey good and marketable title to) the property to Developer. Legal descriptions covering Blocks H-1 and H-2 shall be separately verified, signed and attached to this Agreement prior to or concurrently with final execution.

J. Developer Right of First Refusal for Museum Drive. In the event that at any time in the future, City decides to abandon portions of Museum drive located adjacent to O'Donnell Golf Course, as shown on the Specific Plan, and sell same, or portions thereof, for solely private purposes, i.e., for purposes exclusive of public or non-profit purposes, Developer shall have a right of first refusal to match any offer received by City, and to purchase such property in. the same manner as contemplated for purchase of Blocks H-1 and/or H-2, as provided in Section 4.F above. Legal descriptions covering such property shall be separately verified, signed and attached to this Agreement prior to or concurrently with final execution.

K. Not a Development Agreement. This Agreement is not a development agreement as provided in Government Code Section 65864 and is not a grant of any entitlement, permit, land use approval, or vested right in favor of the Developer or the Project. ·

L. license to Enter. Developer grants to City and City's authorized agents, contractors, consultants, engineers, assigns, and other representatives an irrevocable license to enter upon the Public Assets for the purpose of making inspections and other examinations of the Public Assets, including without limitation the right to perform soil, geological, structural, engineering, and environmental tests of the

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• • Public Assets. City will give Developer ten {10) hours notice before going on the Public Assets.

M. Specific Performance. The Parties acknowledge and agree that this Agreement may be enforced through an action for specific performance subject to the provisions of Section S.D of this Agreement.

5. Miscellaneous General Provisions.

A. Entire Agreement. This Agreement (together with a Reimbursement Agreement and a Confidentiality Agreement previously entered into between City and Developer, and other agreements to be entered into between Cjty and Developer as provided herein) contains the entire agreement of the parties with respect to matters covered herein, and there are no other agreements or representations, written or oral, other than as contained herein.

B. Cooperation. Each party agrees to and shall do and perform such other and further acts and properly execute and deliver such other and further documents as may be reasonably necessary, expedient or convenient to implement the intents and purposes hereof.

C. Reasonable Approvals. Whenever this Agreement requires or calls for the approval or consent of any party hereto, such approval shall not be unreasonably withheld, delayed, or conditioned.

D. Binding Arbitration. In the event of any dispute or controversy arising out of or relating to this Agreement, or the breach or performance of it, the Parties shall reasonably attempt to resolve each such dispute or controversy without resort to third party review or resolution. The Parties shall first meet and confer on any such dispute or controversy. Such meetings shall include any principal of the Developer and at the discretion of the City may include the City Manager and/or the City Council either as a whole or through an ad hoc subcommittee designated by the City Council. Upon the Parties determination that the Parties are unable to resolve the dispute or controversy on their own, the Parties shall submit the dispute, controversy, or any remaining disputed matter to binding arbitration, to be held in the Coachella Valley, and be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association.

E. Legal Fees. In the event of any dispute, arbitration, or litigation arising out of or relating to this Agreement, or the breach or performance of it, the prevailing party shall be entitled to recover, in addition to any other appropriate relief, reasonable attorneys' fees and legal costs incurred in connection therewith.

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• • F. Force Majeure. Neither party shall be deemed to be in default

where failure or delay in performance of any of such party's obligations under this Agreement is caused by any event described below, where any such event is beyond the control of the claiming party and such party's contractors and consultants and is not due to an act or omission of the claiming party or such party's contractors or consultants, and such event directly, materially and adversely affects (a) the ability of the claiming party to meet its non-monetary obligations under this Agreement, including deadlines imposed by the Schedule of Performance, or (b) the ability of the claiming party to complete improvements (Private Improvements in the case of Developer and Public Improvements in the case of City), and which event (or the effect thereof) could not have been avoided by due diligence and use of reasonable efforts by the claiming party:

(1) Unusually Severe Weather: weather conditions not reasonably anticipatabfe for that portion of the City of Palm Springs where the downtown area is located, based upon U.S. Weather Bureau climatological reports for the months included and a report indicating average precipitation, temperature, etc., for the previous ten (10) year period from the nearest weather reporting station;

(2) Ovil Unrest: an epidemic, blockage, quarantine, rebellion, war, insurrection, act of terrorism, strike or lock-out, riot, act of sabotage, civil commotion, act of a public enemy, or freight embargo;

(3) Unforeseeable Conditions: reasonably unforeseeable physical conditions of the existing DFP Area or improvements thereon, including the presence of hazardous materials, as defined by applicable state and federal laws and regulations;

(4) Casualtv: fire, earthquake, flood or other casualty, in each case only if causing material physical destruction or damage to improvements (Private Improvements in the case of Developer and Public Improvements in the case of City);

(5) Litigation: any lawsuit seeking to restrain, enjoin, challenge or delay the issuance of any entitlement, or restraining, enjoining, challenging or delaying construction of improvements ( including the Private Improvements and/or the Public Improvements ), or restraining, enjoining, challenging, or delaying any funding mechanism the City elects to use to fund its obligations under this Agreement, or the authority of the City to use or establish such funding mechanism, or in any way challenges the authority of the City to enter into this Agreement or perform any obligation thereunder, which is vigorously defended by the claiming party and which is finally determined in a manner which restricts the ability of such party to perform its material obligations hereunder, or which results in a injunction against such party restricting its ability to so perform during the pendency of such injunction and which directly impairs the ability of the claiming party to perform despite commercially reasonable efforts to do so;

16

24

• • (6) Change of Law: the passage of a referendum or initiative

that results in the inability of the claiming party to perform its material obligations hereunder; and/or

(7) Conduct by Other Party: conduct (action or inaction) by the other party which delays the ability of the claiming party to perform its material obligations under this Agreement, but only during periods in which such conduct (action or inaction) actually delays such performance.

G. No Partnership. Notwithstanding language in this Agreement referring to "public-private participation", or words or similar import, it is acknowledged that the relationship of the City to the Developer is neither that of a partnership nor that of a joint venture and that neither the City nor the Developer shall be deemed or construed for any purpose to be the agent of the other Party, and neither Party shall have the power or the authority to speak on behalf of the other Party or to bind the other Party to any contractual or other obligations. The Developer shall not at any time hold itself out to the City or to any other third party as an agent of the City, as applicable, and shall not, by any act or omission, mislead any third party into believin& or allow any third party to continue in the mistaken belief, that the Developer is an agent of the City or has the power or authority to bind the City to any contractual or other obligation.

H. Binding on Successors. This Agreeme.nt shall be binding on the parties hereto, their heirs, successors and assigns.

I. Independent legal Representation. Each party hereto has, at all times during the negotiation and execution of this Agreement, been represented by independent legal counsel.

J. Incorporation of Recitals and Exhibits. All recitals herein and all Exhibits attached hereto are incorporated into and made a part of this Agreement. Said Exhibits are identified as follows:

Exhibit

A B Cl C2 D E F

Exhibit Identification

Project Site Plan Project Description Private Improvement Escro~ Agreement Public Improvement Escrow Agreement Schedule of Performance Performance Trust Deed Assignment

17

25

• • G Easement Agreement

K. Captions and Headings. Any captions or headings in this Agreement are for convenience only, and shall not be used to determine or construe meanings of substantive language herein.

L. Applicable Law. This Agreement is entered into in California, and relates to California real property, and shall be determined in accordance with the laws of the State of California.

M. Venue. In the event of any arbitration or litigation arising out of or relating to this Agreement, or the breach or performance of it, any such arbitration shall be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio Branch of the Riverside County Superior Court.

N. Severability. In the event any provisions of this Agreement is deemed or construed by arbitration or a court of competent jurisdiction to be unenforceable, the remaining provisions shall nevertheless remain binding and enforceable to the maximum extent possible.

0. Interpretation. This Agreement and ~nguage herein has been prepared and agreed to by both parties, and any rule~ ._9k~dfit~~ct interpretation calling for construction against one party or the other based on drafti~¥f shall be inapplicable.

l~ l P. Notices. As used in this Agreement, "not~cen includes, but is not

limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:

If to City: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Attn: City Manager Telephone: (760) 322-8350 Facsimile: (760} 323·8207

18

26

• Copy to: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Attn: City Attorney Telephone: (760} 323-8211 Facsimile: (760) 323-8207

If to Developer: Palm Springs Promenade, LLC 555 South Sunrise Way, Suite 200 Palm Springs, California 92264 Attn: John Wessman Telephone: (760) 325-3050 Facsimile: (760) 325-5848

Copy to: Ealy, Hemphill & Blasdel, LLP 71780 San Jacinto Drive, Suite 1-3 Rancho Mirage, California 92270-5518 Attn: W. Curt Ealy Telephone: (760) 340-0666 Facsimile: (760) 340-4666

Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change

Q. Authoritv. Each party represents and warrants to the other that such party has full right, power and authority to sign, execute and enter into this Agreement.

SIGNATURES ON FOLLOWING PAGE

19

27

• • IN WITNESS WHEREOF, the parties hereto have executed this Agreement and

made it effective as of the day and year set forth above.

DEVELOPER:

CITY:

AITEST:

CITY OF PALM SPRINGS A California municipal corporation and charter city

Title: ~c::....~~,::k:~~~fbSl~::::. _____ _

Dated:--.~.~~~~~--------

20

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29

• EXHIBIT "B"

·TO

• PROJECT FINANCING AGREEMENT

PROJECT DESCRIPTION

1. Public Improvements. "Public Improvements" are planned as follows:

a New Public Streets. New public streets will be constructed as follows: (i) a new public street will be created from Palm Canyon Drive to Museum Drive; (ii) Belardo Road will be extended from Tahquitz Canyon Way to the easterly terminus of Musewn Drive; and (iii) West Andreas Road will be created from Palm Canyon Drive to the Belardo Road extension. Costs related to such new public streets shall include, without limitation, streets, street parking, curbs, gutters and sidewalks, up to building footprint lines, a relocated traffic light, signs, decorative pavers and enhanced concrete in intersections and pedestrian walkways and public gathering areas, electrically operated bollards as referenced in Section 3 below, all under and above groWld utilities and services including, without limitation, gas, electricity, telephone, cable television, storm drains, etc., all of which shall be stubbed, as appropriate, five (5) feet into adjacent building footprint lines, and demolition as required for the above.

b. Refurbished Public Parking. Existing parking improvements within the DFP Area will be purchased and refurbished by the City to provide free public parking.

c. Remonsibility for Public Improvements. The Project Financing Agreement to which this Exhibit "B" is attached ("PF A") provides that Developer shall be responsible for all costs and expenses incurred in connection with obtaining entitlements for and constructing (creating and refurbishing) the Public Improvements. The PF A further provides that upon close of the Acquisition Escrow, the parties shall open a Public Improvement Escrow, and the City shall then deposit a portion of the City Payment, i.e., the sum of $11 million, into the Public hnprovement Escrow. The PF A further provides that Developer shall cause the creation and refurbishment of the Public Improvements per the approved plans, and · that in the event that such creation and refurbishment work exceeds the sum of $11 million, Developer shall promptly pay any and all costs in excess of $11 million. The PF A also provides that all funds needed to obtain entitlements for and construct the Public Improvements will flow through the Public hnprovement Escrow. (Note: Any City fees for public improvements shall be waived.)

2. Private Improvements. "Private Improvements" are planned as follows:

a. Block A-1: The existing building in Block A-1 (adjacent to the existing Hyatt Hotel) will remain but be upgraded with all new facades fronting on Palm Canyon Drive, West Andreas Road and Belardo Road.

1 30

• • b. Block A-2: Existing buildings in Block A-2 (former Saks Fifth

Avenue) will be demolished and replaced with new buildings.

c. Block C: Existing buildings in Block C (fonner Bank of America and Hamburger Hamlet and current CPK and AT&T stores) will be demolished and replaced with new buildings.

d. Block D: There are no existing buildings in Block D, and it is not scheduled for vertical development as part of the Revitalization Plan, but rather such area will be temporarily used for parking pending future vertical development by Developer.

e. Block E: Existing buildings in Block E will be demolished and not be replaced as part of the Revitalization Plan, but rather such area will be temporarily used for landscaped open space pending future vertical development by Developer.

f. Block F: Existing buildings in Block F (former I. Magnin) will be demolished and be replaced with a "state of the art" multi-plex movie theater.

g. Block G: Existing buildings in Block G (part of original indoor mall) will be demolished, and not be replaced with vertical development as part of the Revitalization Plan, but rather such area will be temporarily used for parking and/or open space pending future vertical development by Developer.

h. Tenant Improvements: As part of Private Improvements, buildings within Blocks A-1, A-2 and C will have interior tenant improvements installed only as and to the extent leases are finalized prior to conclusion of the Revitalization Plan; the multi-plex movie theater in Block F will have tenant improvements and be ready to receive the theater operator's furniture, fixtures and equipment (projectors, sound equipment, seating, screens, etc.) and thus become fully operable as part of the Revitalization Plan.

i. Responsibility for Private Improvements. The PF A provides that Developer shall be responsible for all costs and expenses incurred in connection with obtaining entitlements for and constructing (creating and refurbishing) the Private Improvements. The PF A further provides that upon close of the Acquisition Escrow, the parties shall open a Private Improvement Escrow, and the City shall then deposit a portion of the City Payment, i.e., the sum of $32 million, into the Private Improvement Escrow. The PFA further provides that Developer shall cause the creation and refurbishment of Private Improvements per the approved plans, and that in the event that such creation and refurbishment work exceeds the sum of $32 million, Developer shall promptly pay any and all costs in excess of $32 million. The PF A also provides that all ftmds needed to obtain entitlements for and construct the Private Improvements will flow through the Public Improvement Escrow.

3. Summary. Upon completion of Public and Private Improvements as referenced above: new public streets, adjacent surface parking, landscaping and

2 31

• • walkways will be in place to provide integrated and user friendly pedestrian and vehicular circulation; all street intersections will be finished with decorative pavers; at entry points into the DFP Area, streets will contain submersible stainless steel bollards that can be electrically raised for short periods to block vehicle access so that interior streets and other areas can be used for pedestrian activities and fwtctions as needed; new public areas between Palm Canyon Drive and the European roundabout at the center of the DFP Area will be enhanced with interlocking pavers and colored concrete, and be designed to serve as a special place for pedestrian activities and public functions; the building in Block A-1 will have all new exterior facades; new buildings will be in place in Blocks A-2 and C; Blocks D, E and G will be temporarily used for parking and/or landscaped open space pending future vertical development; Block F will contain a new state of the art multi-plex movie theater; and, most importantly, the downtown area will be re-energized with entertainment venues, new stores, businesses and activities, and value will be created for all concerned - owners, operators, retailers, residents, visitors, tourists, and the City of Palm Springs.

3 32

• EXIDBIT "Cl"

TO


PRIVATE IMPROVEMENT ESCROW AGREEMENT AND ESCROW INSTRUCfiONS

This PRIVATE IMPROVEMENT ESCROW AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement"), dated as of the __ day of 2012, is made and entered into by and between the City of Palm Springs, a California municipal corporation and charter city (''City"), and Palm Springs Promenade, LLC, a California limited liability company ("Developer").

RECITALS

A. Prior to execution of this Agreement, the parties entered into a Project Financing Agreement ("PF A"). (The PF A is incorporated herein by reference, and all defmed terms therein shall have the same meanings herein.)

B. The PF A provides that upon close of the Acquisition Escrow, the parties shall open a Private Improvement Escrow, and the City shall then deposit a portion of the City Payment, i.e., the sum of $32 million, into the Private Improvement Escrow. The PF A further provides that prior to drawing building permits to construct Private Improvements contemplated for the Revitalization Plan (as defined in the PFA), Developer shall deposit an additional $2 million into the Private Improvement Escrow, and that thereafter Developer shall deposit additional funds (over and above the $32 million and $2 million amounts) as and when needed to complete such Private Improvements. The PF A also provides that all funds needed to obtain entitlements for and construct such Private Improvements will flow through the Private Improvement Escrow.

C. The PF A provides that prior to opening the Private Improvement Escrow, the parties shall select and enter into a written agreement ("IFC Agreement") with an IFC Agent, who shall be responsible for authorizing periodic releases, in increments, of funds necessary to entitle and construct the Private Improvements. The parties acknowledge that prior to execution of this Agreement such requirement was· satisfied, and a copy of the executed IFC Agreement is incorporated herein by reference as though set forth in full.

D. The purpose of this Agreement is to establish and set forth specific procedures and instructions pursuant to which funds from time to time on deposit in the Private Improvement Escrow account shall be authorized for release by the IFC Agent, and then be released by the Escrow Holder.

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1

33

• • 1. Escrow Instructions. Prior to implementation of this Agreement, the

parties shall obtain from Escrow Holder a written acceptance, in form and substance approved by the parties, pmsuant to which Escrow Hold~r accepts its obligations Wlder this Agreement and agrees to act in accordance with the instructions to Escrow Holder as set forth herein. To the extent Escrow Holder requests or requires modified and/or additional instructions, the parties shall expeditiously execute and deliver same, provided that they are not inconsistent with the terms hereof (unless any such inconsistency is agreed to by the parties).

2. Authorized Expenditmes. Any and all costs and expenses reasonably incurred in connection with obtaining entitlements for and constructing Private Improvements, as contemplated by the PF A, shall be payable through and by release of ftmds from the Private Improvement Escrow. Such costs and expenses include, without limitation, all hard and soft costs, and all amounts reasonably payable to architects, engineers, planners, designers, contractors, subcontractors, material suppliers and other third parties involved in the Revitalization Plan process.

3. Written Contracts. To the extent reasonable, appropriate and customary, Developer shall enter into written agreements with all third parties providing services, labor and/or materials in connection with obtaining entitlements for and constructing the Private Improvements. Copies of all executed written contracts shall promptly (within 15 days after execution) be provided by Developer to the IFC Agent and the City. In any event, the prime construction contract for the Private Improvements shall be in writing, and it shall contain, without limitation, provisions calling for and/or requiring (a) that periodic progress payments be made (not less than monthly) on a percentage of completion basis; (b) that retention amounts of not less than ten percent (10%) be withheld from progress payments (with final payment to be made within a reasonable time after satisfactory completion of the work in question); (c) that partial (and final) lien releases shall be provided with each progress (and final) payment as appropriate under applicable provisions of the California Civil Code; and (d) that the Developer, as owner, shall have the right to require that joint checks be issued to multiple payees e.g., contractor, subcontractor and/or suppliers, in connection with each progress (and fmal) payment.

4. Billing Statements. Processing and payment of billing statements from third parties providing services, labor and/or materials ("providers") with respect to the Revitalization Plan process shall be handled as follows:

A. All providers (including the IFC Agent) shall initially deliver billing statements (and supporting documentation including executed lien releases as appropriate) to Developer. (It is anticipated that billing statements will normally be delivered to Developer monthly on or about the 25th day of each month, and be processed for payment by the lOth day of the following month.)

2

34

• • B. Developer shall expeditiously review and consider each such

billing statement and, upon approval of same (as is or after and with requested changes and/or corrections), Developer shall write "Approved by Developer'', and sign and date such approval, on the billing statement, and forward a copy of same (with supporting docwnentation), via facsimile or e-mail, to the IFC Agent. (Note: If appropriate, Developer shall also indicate on the billing statement whether payment should be made by joint check and, if so, the names of each and all of the joint payees.)

C. The IFC Agent shall expeditiously review and consider each such billing statement received from Developer and, upon approval of same (as is or after and with requested changes and/or corrections), the IFC Agent shall write "Approved by IFC Agent", and sign and date such approval, on the copy of the billing statement, and forward a copy of same (without supporting docwnentation), via facsimile or e-mail, to the Escrow Holder, and to Developer. (Note: If appropriate, the IFC Agent shall also indicate on the billing statement, independently or in confirmation of Developer, whether payment should be made by joint check and, if so, the names of each and all of the joint payees.)

D. The Escrow Holder shall expeditiously review and consider each such billing statement received from the IFC Agent and, upon approval of same (as is or after and with requested changes and/or corrections), the Escrow Holder shall prepare checks, drawn on funds in the Private hnprovement Escrow account, in accordance with instructions received from Developer and/or the IFC Agent as provided above. Upon preparation, such checks shall be hand delivered to Developer (with copies sent via facsimile or PDF e-mail to the IFC Agent).

E. Upon receipt of such checks, Developer shall make arrangements to have them delivered to or picked up by the provider or providers in question.

5 Completion. The foregoing arrangements with respect to processing and payment of billing statements shall be continued until completion and approval by City and Developer of Private Improvements as contemplated by the Revitalization Plan and PFA.

6. Close of Private Improvement Escrow. Upon such approval by City and Developer, all fmal bills and billing statements (including any owing to the IFC Agent) shall be paid, funds, if any, remaining in Escrow shall be disbursed to Developer, and the Private Improvement Escrow shall be closed.


A. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to matters covered herein, and there are no other agreements or representations, written or oral, other than as contained herein.

3

35

• • B. Cooperation. Each party agrees to and shall do and perform such

other and further acts and properly execute and deliver such other and further documents as may be reasonably necessary, expedient or convenient to implement the intents and purposes hereof.

C. Reasonable Approvals. Whenever this Agreement requires or calls for the approval or consent of any party hereto, such approval shall not be unreasonably withheld, delayed or conditioned.

D. Binding Arbitration. In the event of any dispute or controversy arising out of or relating to this Agreement, or the breach or performance of it, the parties shall reasonably attempt to resolve such dispute or controversy without resort to third party review or resolution. The parties shall first meet and confer on any such dispute or controversy. Such meeting(s) shall include any principal of the Developer and, at the discretion of the City, may include the City Manager and/or the City Council, either as a whole or through an ad hoc subcommittee designated by the City Council. Upon a detennination by the parties that they are or will be unable to resolve the dispute or controversy on their own, then the parties shall submit the dispute, controversy or any remaining unresolved matter to binding arbitration, to be held in the Coachella Valley, and be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association.

E. Legal Fees. In the event of any dispute, arbitration or litigation arising out of or relating to this Agreement, or the breach or performance of it, the prevailing party shall be entitled to recover, in addition to any other appropriate relief, reasonable attorneys fees and legal costs incurred in connection therewith.

F. Binding on Successors. This Agreement shall be binding on the parties hereto, their heirs, successors and assigns. The terms, provisions and covenants herein shall be enforceable at law as legal easements and/or covenants running with the land, and in equity as equitable servitudes.

G. Independent Legal Representation. Each party hereto has, at all times dming the negotiation and execution of this Agreement, been represented by independent legal counsel.

H. Incomoration of Recitals and Exhibits. All recitals herein and all Exhibits attached hereto are incorporated into and made a part of this Agreement.

I. Captions and Headings. Any captions or headings in this Agreement are for convenience only, and shall not be used to determine or construe meanings of substantive language herein.

J. Applicable Law. This Agreement is entered into in California, and relates to California real property, and shall be determined in accordance with the laws of the State of California.

4

36

• • K. Venue. In the event of any arbitration or litigation arising out of or

relating to this Agreement, or the breach or performance of it, any such arbitration shall be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio Branch of the Riverside County Superior Court.

L. Severability. In the event any provisions of this Agreement is deemed or construed by arbitration or a court of competent jurisdiction to be Wlenforceable, the remaining provisions shall nevertheless remain binding and enforceable to the m.aximwn extent possible.

M. Intemretation. This Agreement and language herein has been prepared and agreed to by both parties, and any rules of contract interpretation calling for construction against one party or the other based on drafting, shall be inapplicable.

N. Notices. As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:

If to City: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Attn: City Manager Telephone: (760) 322-8350 Facsimile: (760) _-__

Copy to: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Attn: City Attorney Telephone: (760) 323-8211 Facsimile: (760) 323-8207

If to Developer: Palm Springs Promenade, LLC 555 South Sunrise Way, Suite 200 Palm Springs, California 92264

5

37

• Attn: John Wessman Telephone: (760) 325-3050 Facsimile: (760) 325-5848

Copy to: Ealy, Hemphill & Blasdel, LLP

•

71780 San Jacinto Drive, Suite 1-3 Rancho Mirage, California 92270-5518 Attn: W. Curt Ealy Telephone: (760) 340-0666 Facsimile: (760) 340-4666


0. Authority. Each party represents and warrants to the other that such party has full right, power and authority to sign, execute and enter into this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and made it effective as of the day and year set forth above.

DEVELOPER:

CITY:

ATTEST:

APPROVED AS TO LEGAL FORM:

PALM SPRINGS PROMENADE, LLC A California limited liability company By: ______________________________________________________ _

Title: -----------------------------------------------Dated: ------------------------------------------------------

CITY OF PALM SPRINGS A California mtmicipal corporation and charter city By: __________________________________________________ _

Title: -------------------------------------------------Dated:

---------------------------------------------------

City Clerk

City Attorney

6

38

• EXHIBIT "C2"

TO


PUBLIC IMPROVEMENT ESCROW AGREEMENT AND ESCROW INSTRUCfiONS

This PUBLIC IMPROVEMENT ESCROW AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement"), dated as of the __ day of , 2012, is made and entered into by and between the City of Palm Springs, a California mtmicipal corporation and charter city ("City"), and Palm Springs Promenade, LLC, a California limited liability company ("Developer'').

RECITALS

A. Prior to execution of this Agreement, the parties entered into a Project Financing Agreement ("PF A"). (The PF A is incorporated herein by reference, and all defined terms therein shall have the same meanings herein.)

B. The PF A provides that upon close of the Acquisition Escrow, the parties shall open a Public Improvement Escrow, and the City shall then deposit a portion of the City Payment, i.e., the sum of $11 million, into the Public Improvement Escrow. The PF A further provides that (i) Developer shall cause the creation and refurbishment of Public Improvements, as referenced in the PF A; (ii) in the event that such creation and refurbishment work exceeds the sum of $11 million, Developer shall promptly pay any and all costs in excess of $11 million; and (iii) in the event that such creation and refurbishment work is accomplished for less than $11 million, any savings (in the form of amounts remaining in the Public Improvement Escrow after completion of the Public Improvements) shall be transferred from the Public Improvement Escrow into the Private Improvement Escrow and be used to help complete the Private Improvements. The PF A a)so provides that all funds needed to obtain entitlements for and construct such Public Improvements will flow through the Public Improvement Escrow. (Note: Any City fees for Public Improvements shall be waived.)

C. The PFA provides that prior to opening the Public Improvement Escrow, the parties shall select and enter into a written agreement ("IFC Agreement") with an IFC Agent, who shall be responsible for authorizing periodic releases, in increments, of funds necessary to entitle and construct the Public Improvements. The parties acknowledge that prior to execution of this Agreement such requirement was satisfied, and a copy of the executed IFC Agreement is incorporated herein by reference as though set forth in full.

D. The purpose of this Agreement is to establish and set forth specific procedures and instructions pursuant to which funds from time to time on deposit in the

1

39

• • Public Improvement Escrow account shall be authorized for release by the IFC Agent, and then be released by the Escrow Holder.


1. Escrow Instructions. Prior to implementation of this Agreement, the parties shall obtain from Escrow Holder a written acceptance, in form and substance approved by the parties, pursuant to which Escrow Holder accepts its obligations under this Agreement and agrees to act in accordance with the instructions to Escrow Holder as set forth herein. To the extent Escrow Holder requests or requires modified and/or additional instructions, the parties shall expeditiously execute and deliver same, provided that they are not inconsistent with the terms hereof (unless any such inconsistency is agreed to by the parties).

2. Authorized Expenditures. Any and all costs and expenses reasonably incurred in connection with obtaining entitlements for and constructing (creating and refurbishing) Public Improvements, as contemplated by the PF A, shall be payable through and by release of funds from the Public Improvement Escrow. Such costs and expenses include, without limitation, all hard and soft costs, and all amounts reasonably payable to architects, engineers, planners, designers, contractors, subcontractors, material suppliers and other third parties involved in the Revitalization Plan process.

3. Written Contracts. To the extent reasonable, appropriate and customary, Developer shall enter into written agreements with all third parties providing services, labor and/or materials in connection with obtaining entitlements for and constructing (creating and refurbishing) the Public Improvements. Copies of all executed written contracts shall promptly (within 15 days after execution) be provided by Developer to the IFC Agent and the City. In any event, the prime construction contract for the Public Improvements shall be in writing, and it shall contain, without limitation, provisions calling for and/or requiring (a) that periodic progress payments be made (not less than monthly) on a percentage of completion basis; (b) that retention amounts of not less than ten percent (10%) be withheld from progress payments (with final payment to be made within a reasonable time after satisfactory completion of the work in question); (c) that partial (and final) lien releases shall be provided with each progress (and final) payment as appropriate under applicable provisions of the California Civil Code; and (d) that the Developer, as owner, shall have the right to require that joint checks be issued to multiple payees e.g., contractor, subcontractor and/or suppliers, in connection with each progress (and fmal) payment.

4. Billing Statements. Processing and payment of billing statements from third parties providing services, labor and/or materials ("providers") with respect to the Revitalization Plan process shall be handled as follows:

A. All providers (including the IFC Agent) shall initially deliver billing statements (and supporting documentation including executed lien releases as appropriate) to Developer. (It is anticipated that billing statements will nonnally be

2

40

• • delivered to Developer monthly on or about the 25th day of each month, and be processed for payment by the loth day of the following month.)

B. Developer shall expeditiously review and consider each such billing statement and, upon approval of same (as is or after and with requested changes and/or corrections), Developer shall write "Approved by Developer'', and sign and date such approval, on the billing statement, and forward a copy of same (with supporting documentation), via facsimile or e-mail, to the IFC Agent. (Note: If appropriate, Developer shall also indicate on the billing statement whether payment should be made by joint check and, if so, the names of each and all of the joint payees.)

C. The IFC Agent shall expeditiously review and consider each such billing statement received from Developer and, upon approval of same (as is or after and with requested changes and/or corrections), the IFC Agent shall write "Approved by IFC Agent'', and sign and date such approval, on the copy of the billing statement, and forward a copy of same (without supporting documentation), via facsimile or e-mail, to the Escrow Holder, and to Developer. (Note: If appropriate, the IFC Agent shall also indicate on the billing statement, independently or in confirmation of Developer, whether payment should be made by joint check and, if so, the names of each and all of the joint payees.)

D. The Escrow Holder shall expeditiously review and consider each such billing statement received from the IFC Agent and, upon approval of same (as is or after and with requested changes and/or corrections), the Escrow Holder shall prepare checks, drawn on funds in the Public Improvement Escrow account, in accordance with instructions received from Developer and/or the IFC Agent as provided above. Upon preparation, such checks shall be hand delivered to Developer (with copies sent via . facsimile or PDF e-mail to the IFC Agent).

E. Upon receipt of such checks, Developer shall make arrangements to have them delivered to or picked up by the provider or providers in question.

5 Completion. The foregoing arrangements with respect to processing and payment of billing statements shall be continued until completion and approval by City and Developer of Public Improvements as contemplated by the Revitalization Plan and PFA.

6. Close of Public Improvement Escrow. Upon such approval by City and Developer, all fmal bills and billing statements (including any owing to the IFC Agent) shall be paid, funds, if any, remaining in the Public Improvement Escrow shall be transferred into the Private Improvement Escrow, and the Public Improvement Escrow shall be closed.


3

41

• • A. Entire Agreement. This Agreeme~t contains the entire agreement

of the parties with respect to matters covered herein, and there are no other agreements or representations, written or oral, other than as contained herein.

B. Cooperation. Each party agrees to and shall do and perform such other and further acts and properly execute and deliver such other and further documents as may be reasonably necessary, expedient or convenient to implement the intents and purposes hereof.

C. Reasonable AIWrovals. Whenever this Agreement requires or calls for the approval or consent of any party hereto, such approval shall not be unreasonably withheld, delayed or conditioned.

D. Binding Arbitration. In the event of any dispute or controversy arising out of or relating to this Agreement, or the breach or performance of it, the parties shall reasonably attempt to resolve such dispute or controversy without resort to third party review or resolution. The parties shall first meet and confer on any such dispute or controversy. Such meeting(s) shall include any principal of the Developer and, at the discretion of the City, may include the City Manager and/or the City Council, either as a whole or through an ad hoc subcommittee designated by the City Council. Upon a determination by the parties that they are or will be unable to resolve the dispute or controversy on their own, then the parties shall submit the dispute, controversy or any remaining unresolved matter to binding arbitration, to be held in the Coachella Valley, and be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association.

E. Legal Fees. In the event of any dispute, arbitration or litigation arising out of or relating to this Agreement, or the breach or performance of it, the prevailing party shall be entitled to recover, in addition to any other appropriate relief, reasonable attorneys fees and legal costs incurred in connection therewith.


G. Independent Legal Representation. Each party hereto has, at all times during the negotiation and execution of this Agreement, been represented by independent legal counsel.



4

42

• • J. Apj)licable Law. This Agreement is entered into in California, and

relates to California real property, and shall be determined in accordance with the laws of the State of California.

K. Venue. In the event of any arbitration or litigation arising out of or relating to this Agreement, or the breach or performance of it, any such arbitration shall be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio Branch of the Riverside County Superior Court.

L. Severability. In the event any provisions of this Agreement is deemed or construed by arbitration or a court of competent jurisdiction to be unenforceable, the remaining provisions shall nevertheless remain binding and enforceable to the maximum extent possible.

M. Interpretation. This Agreement and language herein has been prepared and agreed to by both parties, and any rules of contract interpretation calling for construction against one party or the other based on drafting, shall be inapplicable.

N. Notices. As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:

If to City: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Attn: City Manager Telephone: (760) 322-8350 Facsimile: (760) _-__

Copy to: City of Pahn Springs 3200 East Tahquitz Canyon Way Pahn Springs, California 92262 Attn: City Attorney Telephone: (760) 323-8211 Facsimile: (760) 323-8207

5

43

• • If to Developer: Palm Springs Promenade, LLC 555 South Sunrise Way, Suite 200 Palm Springs, California 92264 Attn: John Wessman Telephone: (760) 325-3050 Facsimile: (760) 325-5848

Copy to: Ealy, Hemphill & Blasdel, LLP 71780 San Jacinto Drive, Suite 1-3 Rancho Mirage, California 92270-5518 Attn: W. Curt Ealy Telephone: (760) 340-0666 Facsimile: (760) 340-4666


0. Authority. Each party represents and warrants to the other that such party has full right, power and authority to sign, execute and enter into this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and made it effective as of the day and year set forth above.

DEVELOPER:

CITY:

ATTEST:


PALM SPRINGS PROMENADE, LLC A California limited liability company By: ___________________________________ _

Title: --------------------------------Dated: --------------------------------------------CITY OF PALM SPRINGS A California municipal corporation and charter city By: ____________________________ _

Title: ------------------------------Dated: -------------------------------------

City Clerk

City Attorney

6

44

• • Schedule of Performance - Exhibit D

Project Financing Agreement

Comment Days for Anticipated Date No. Performance based on days to

perform, any

Milestone delay by the city for approvals

adjusts each date automatically

forward Approval of PFA. City approves or PFA approved September 26 1 disapproves PFA and, if approves, September 7 subject executes PFA to minor changes 2011

Detailed Ph}!sical Evaluation of the 1 September 26 2 Property. The City shall retain 2011

structural engineer to obtain a detailed structural inspection of the parking structure. Title Reoort. Developer delivers to September 30

3 City Preliminary Title Report. 2011 AReroval or DisaQ(2roval of Title Within 15 days after 15 Exceptions. City approves or delivery of

4 disapproves title exceptions. Preliminary Title Report from Developer.

Structural Engineer. City completes Within 30 days after 30 detailed structural inspection of the hiring structural

5 parking structure to determine if engineer estimated cost of improvements is excessive. Ogening of Escrow. The City and Dec 1t" 2011

6 Developer open escrow for conveyance of the parking structure and other public assets to the City.

Right to Terminate. City waives its 7 right to terminate Agreement based on PerPFA. December21

inability to identify source of public 2011 financing Reimbursement Agreement City If not approved all staff recommends to Council to time lines from

8 provide additional funds for first phase milestone 9a on design work; Any additional payments adjust forward in December28 will be reimbursed to the city upon the sequence to the 2011 close of the future private I public date when the improvement escrow private and public

improvement escrow doses

45

• • Private lmRrovement Develoement Within 40 days City Plans. Developer contracts with approved funding

9a architectural firm and other necessary first phase of design sub consultants to produce Major work, otherwise 9a January 30 2012 Architectural Application Plan sufficient adjusts forward to to comply with Milestone No. 18a, milestone 17 submittal of plans.

9b Public lm~rovement Develogment Plans. Developer contracts with

March 30th 2012 engineering firms and other necessary sub consultants. Bank of America Demolition. Developer to apply 60 Developer commences demolition of for demolition

10 Bank of America building {after Film permit after Festival2012 ends) and the December 21 but Major Milestone installation of basic site landscaping. prior to Jan 21 March 21st 2012 Upon pulling demo permit (no later than Jan 21st 2012) complete demo of Bank of America within 60 days

Funds Control Agent. City and April2, 2012

11 Developer contract with a mutually acceptable and reputable independent fund control agent ("IFC Agent")

Sewer Connections. City and December 22"0 -

12 Developer undertake comprehensive 2013 June 30th 2012 site review to determine number and June 30 2013 location of sewer connections to detennine credit for sewer connection charges in building permit fees. De~osit of Grant Deed. The One ( 1) week prior

13 Developer shall deposit the grant deed to Closing. for the Parking Structure and City April8,2012 Parcels into escrow.

De~osit of Purchase Price and One (1) week prior 14 Other Regulred Sums. The City shall to Closing.

deposit the Purchase Price of the Parking Structure and other public assets, funds for the public April8,2012 improvements and other required sums into escrow.

Escrow Fees and Charges. Escrow Three (3) days prior 15 Agent gives notice of fees, charges, to Closing.

and costs to close Escrow. April11,2012

Intentionally left blank Intentionally left

46

• • 16 blank

Close of Escrow. The Developer 17 shall convey fee title to the Parking

Structure and other public assets to the City and the City shall accept such conveyance. The Escrow Agent shall April15, 2012 cause the Grant Deed and Easement for Access (and other related documents) to be recorded with the Riverside County Recorder.

18a ADRiication Submission. Major Architectural Approval Application for Major Milestone the first building on one of the June 1st 2012 following: Blocks A-1, A-2, C and For adjacent street grid.

Approval by CitV. Major Architectural Within 45 days from 45 Approval. Architectural Advisory, date of submission Planning Commission, and City of architectural Council approval of submittal from application of the

19a milestone 18a. first building. 18 Plan Submission Public b Improvements; Major architectural

application including site plan and Major Milestone street improvements Dec 28th 2012

19b Aln~roval br CitY Council. Public Within 45 days from 45 Improvements- The City process date of submission includes the Architectural Advisory of architectural Committee, Planning Commission, and application. City Council approval.

18 Agelication Submission. /Major c Architectural Approval Application for Major Milestone the remaining building of the Oct 31st 2012

following: Blocks A-1, A-2, C and F

19c Aeeroval b~ Ciw Council. Major Within 45 days from 45 Architectural Approval of remaining submission of buildings A 1, A2, C or F. The City architectural process submitted Architectural application of Advisory Committee, Planning remaining buildings. Commission, and City Council approval.

47

• • 18 Agglica~ion Submission Major d Architectural Approval for

hardscape and landscape plans; Major Milestone includes the Architectural Advisory Feb 28th 2013 Committee, Planning Commission, and City Council ap~roval

19d A(!Qroval b~ Ci~ Council. Landscape Within 45 days from 45 and hardscape- The City process submission of includes the Architectural Advisory architectural Committee, Planning Commission, and application. City Council approval. application shall include final Site Submittal of Construction

20a Documents. Developer submits Construction (Building and Engineer) May 31, 2013 Plans for approval by Building and Engineering Departments (Milestone 19 a)

21 City to finalize Plan Check of Plan Check 60 a submitted Construction Documents completed within 60

milestone 20 a documents days of submittal to the Building department

22 Develoeer to de~oslt I 2 million and Major Milestone Citv to issue Building Permit for the Aug 30th 2013 first building on one of the following: Blocks A-1, A-2, C and F or adjacent street grid.

23a Commence Demolition of Existing As early as July Improvements. Developer 26th 2013 commences demolition of remaining site improvements in preparation for construction of public and private improvements. Portions of Block C will be demolished last, because of CPK Lease)

Commencement of Construction of 23b Develo~er's lmgrovements. Major Milestone

Developer commences construction of Sep 30th , 2013 public and private improvements.

20 Submittal of all of remaining Contingent on b Construction Documents. meeting milestones

Developer submits Construction 19, a,b (Building and Engineering) Plans and

Sep 30th 2013 Grading Plan for approval by Building and Engineering Departments for the remaining buildings Blocks A-1, A-2, C and For adjacent street grid, hardscape and landscaping plans

48

• • 21 Citv to finalize Plan Check of Plan Check 60 b Construction Documents and issue completed within 60

Building Permit for the remaining days of submittal to buildings (see 20 b) of the following: the Building and Blocks A-1, A-2, C and F or adjacent Engineering street grid, hardscape and landscape department plans Substantial Com9letion of Construction of Develoger's Core &

23c Shell and I}Ublic lml}rovements. Major Milestone Developer substantially completes December 28th, Core & Shell Improvements parking 2014 improvement upgrades. public streets and sidewalks, open space plazas.

City to certify substantial completion of 15 24 all private and public improvements

after Developer has notified it in writing and release and reconvey in full the January 12th 2015 Performance Deed of Trust (regardless of any outstanding balance) -within 15 days of notification by Developer

MAJOR MILESTONES as defined in the PF A 3 .A Developer Default

It is understood that the foregoing Schedule of Performance is subject to all of the terms and conditions set forth in the text of the PFA Agreement..The time periods set forth in this schedule will adjust automatically forward if city approvals are not obtained at the scheduled dates listed above

The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both Developer and City. A failure by either party to enforce a breach of any particular time provision shall not be construed as a waiver of any other time provision. The City Manager shall have the authority to approve extensions of time without City Council action not to exceed a cumulative total of 180 days.

49

• WHEN RECORDED MAIL TO:City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager

SEND TAX NOTICES TO: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager

• EXHIBIT "E"

FOR RECORDER'S USE ONLY

PERFORMANCE TRUST DEED

THIS DEED OF TRUST is dated 2012, among Palm Springs Promenade, LLC, a California limited liability company, whose address is 555 South Sunrise Way, Suite 200, Palm Springs, CA 92264 ("Trustor''); the City of Palm Springs, a municipal corporation and charter city, whose address is 3200 East Tahquitz Canyon Way, Palm Springs, CA 92262 (referred to herein sometimes as "City'' and sometimes as "Beneficiary''); and Fidelity National Title Company, a California corporation, whose address is 1300 Dove Street, Suite 31 0, Newport Beach, CA 92660 (''Trustee").

CONVEYANCE AND GRANT. For valuable consideration, Trustor hereby grants, transfers and assigns to Trustee in trust, with power of sale, for the benefit of City as Beneficiary, all of Trustor's right, title, and interest in and to the following desetibed real property, together withal existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the ''Real Property'') located in Riverside County, State of California:

SEE EXHIBIT "A" A TI ACHED HERETO AND MADE A PART HEREOF

Trustor presently assigns to City (also known as Beneficiary in this Trust Deed) all of Trustor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. This is an absolute assignment of Rents made in coilllection with an obligation secured by real property pursuant to California Civil Code Section 2938. In addition, Trustor grants to City a Uniform Commercial Code security interest in the Personal Property and Rents.

THIS DEED OF TRUST, INCLUDING 1HE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN TH~ RENTS AND PERSONAL PROPERTY, IS GIVEN

1 TO (Final Clean 09.27.2011)

50

• • EXHIBIT "E"

TO SECURE PERFORMANCE OF ALL OBLIGATIONS OF TRUSTOR TO COMPLETE PRIVATE IMPROVEMENTS AND PUBLIC IMPROVEMENTS PURSUANT TO THAT CERTAIN PROJECT FINANCING AGREEMENT BETWEEN TRUSTOR AND CITY OF EVEN DATE HEREWITH (the "Project Financing Agreement"). ANY EVENT OF DEFAULT UNDER SECTIONS 2.B(6), 2B(7), 2.B(10) AND 3 OF THE PROJECT FINANCING AGREEMENT, SHALL ALSO BE AN EVENT OF DEFAULT UNDER THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:

PERFORMANCE. Except as otherwise provided in this Trust Deed, Trustor shall strictly and in a timely manner perfonn all of Trustor's obligations under the Project Financing Agreement to complete Private Improvements and the Public Improvements pursuant to Sections 2.8(6), 2.B(7), 2.B(10) and 3 of the above referenced Project Financing Agreement. (The 'Project Financing Agreement is incorporated herein by reference as though set forth in full and all defined terms therein shall, except to the extent, if any, otherwise specifically indicated, have the same meanings herein.)

POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees that Trustor's possession and use of the Property shall be governed by the following provisions:

Possession and Use. Until the occurrence of an Event of Default, Trustor may (1) remain in possession and control of the Property; (2) use, operate and/or manage the Property, and construct improvements thereon pursuant to the Project Financing Agreement; and (3) collect the Rents from the Property.

Duty to Maintain. Trustor shall, subject to constructing improvements pmsuant to the Project Financing Agreement, maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve 'its value.

Compliance With Environmental Laws. To Trustor's current actual knowledge, with no further duty of inquiry or investigation, Trustor represents and warrants to City that: (1) During the period of Trustor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property, except in compliance with applicable Environmental Laws; (2) Trustor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by City in writing, (a) any breach or violation of any Environmental Laws, (b) any use generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, except in compliance with applicable Enviromnental Laws; or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by City in writing, (a) neither Trustor nor any

2 TD (Final Clean 09.27.2011)

51

• • EXHIBIT ''E"

tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property, except in compliance with applicable Environmental Laws; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Envirorunental Laws. Trustor authorizes City ari.d its agents to enter upon the Property to make such inspections and tests, at City's expense, as City may deem appropriate to detennine compliance of the Property with this section of the Trust Deed. Any inspections or tests made by City shall be for City's pwposes only and shall not be construed to create any responsibility or liability on the part of City to Trustor or to any other person. Trustor hereby (1) releases and waives any future claims against City for indemnity or contribution in the event Trustor becomes liable for cleanup or other costs under any such laws; and {2) agrees to indemnify and hold hannless the City against any and all claims, losses, liabilities, damages, penalties, and expenses which City may directly or indirectly sustain or suffer resulting from a breach of this section of the Trust Deed or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened re1ease occurring prior to Trustor's ownership or interest in the Property, if the same was known to Trustor. The provisions of this section of the Trust Trust Deed, including the obligation to indemnify, shall survive the reconveyance of the lien of this Trust Trust Deedand shall not be affected by City's acquisition of any interest in the Property, whether by foreclosure or otherwise.

Nuisance, Waste. Except for demolition and construction work contemplated by the Project Financing Agreement, Trustor shall not cause, conduct or permit any nuisance nor commit, permit or suffer any stripping of or waste on or to the Property or any portion of the Property.

Removal of Improvements. Except for demolition and construction work contemplated by the Project Financing Agreement, Trustor shall not demolish or remove any Improvements from the Real Property without City's prior written consent.

City's Right to Enter. City and City's agents and representatives may enter upon the Real Property at all reasonable times to attend to City's interests and to inspect the Real Property for purposes of Trustor's compliance with the terms and conditions of this Trust Deed.

Compliance with Governmental Requirements. Trustor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to- the use or occupancy of the Property, including without limitation, the Americans with Disabilities Act and demolition and construction work contemplated by the Project· Financing Agreement. Trustor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so


52

• • EXHIBIT "E"

long as Trustor has notified City in writing prior to doing so and so long as, in City's reasonable opinion, City's interests in the Property are not jeopardized.

Duty to Protect. Trustor agrees neither to abandon nor leave unattended the Property. Trustor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property.

Construction.· Construction of Private Improvements shall be completed in accordance with the provisions of the Project Financing Agreement.

DUE ON SALE - CONSENT BV CITY. City may, at City's option, declare immediately due and payable all swns secured by this Trust Deed upon the sale or transfer, without City's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A "sale" or "transfer'' means the conveyance of Real Property or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installmentsale contract, land contract, contract for deed,, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real Property. If any Trustor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than fortY-nine percent (49%) of the voting stock, partnership interests or limited liability company interest<;, as the case may be, of such Trustor. However, this option shall not be exercised by City if such exercise is prohibited by applicable law.

TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Trust Deed:

Payment. Trustor shall pay when due (and in all events at least ten (10) days prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), fines and impositions levied against or on account of the Property, and shall, subject to Trustor's right to contest, pay when due all claims for work done on or for services rendered or material furnished to the Property. Trustor shall maintain the Property free of all liens having priority over or equal to the interest of City under this Trust Deed, except for the lien of taxes and assessments not due and except as otherwise provided in this Trust Deed.

Right to Contest. Trustor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as City's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Trustor shall within thirty (30) days after the lien arises or, if a lien is filed, within thirty (30) days after Trustor has notice of the filing, secure the discharge of the lien or otherwise defend such lien

Evidence of Payment. Trustor shall upon demand furnish to City satisfactory evidence of payment of the taxes or assessments and shall authorize the


53

• EXHIBIT "E" • appropriate governmental official to deliver to City at any time a written statement of the taxes and assessments against the Property.

PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Trust Deed.

Maintenance of Insurance. Trustor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a fair value basis for the full insurable val~e covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of City. Trustor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as City may reasonably request with trustee and City being named as additional insureds in such liability insurance policies. Additionally, Trustor shall maintain such other insurance, including but not limited to hazard, business interruption, course of construction and boiler insurance, as City may reasonably require. Notwithstanding the foregoing, in no event shall Trustor be required. to provide hazard insurance in excess of the replacement value of the Improvements on the

·Real Property. Policies shall be written in fonn, amounts, coverages and basis reasonably acceptable to City and issued by a company or companies reasonably acceptable to City. Trustor, upon request of City, will deliver to City from time to time the policies or certificates of insurance in form satisfactory to City, including stipulations that coverages will not be cancelled or diminished without at least ten (1 0) days prior written notice to City. Each insurance policy also shall include an endorsement providing that coverage in favor of City. will not be impaired in any way by any act, omission or default of Trustor or any other person.

Application of Proceeds. Trustor shall prompt! y notify City of any loss or damage to the Property if the estimated cost of repair or replacement exceeds $50,000.00. City may make proof of loss if Trustor fails to do so within fifteen (15) days of the casualty. If in City's sole judgment City's security interest in the Property has been impaired, City may at City's election, receive the proceeds of any insurance and apply such proceeds to restoration and repair of the Property. If the proceeds are to be applied to restoration and repair, Trustor shall repair or replace the damaged or destroyed Improvements in a manner reasonably satisfactory to City. City shall, upon satisfactory proof of such expenditure, pay or reimburse Trustor from the proceeds for the reasonable cost of repair or restoration.

Unexpired Insurance at Sale. Any unexpired Insurance shall inure to the benefit of, and pass to, the purchaser of the Property covered by this Trust Deed at any trustee's sale or other sale held under the provisions of this Trust Deed, or at any foreclosure sale of such Property.


54

• • EXHIBIT "E"

Trustor's Report on Insurance. Upon request of City~ however not more than once a year, Trustor shall furnish to City a report on each existing policy of Insurance showing: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; ( 4) the property insmed, the then current replacement value of such property, and the manner of determining that value; and ( 5) the expiration date of the policy.

CITY'S EXPENDITURES. If any action or proceeding is commenced that would adversely and materially affect City's interest in the Property or if Trustor fails to discharge or pay when due any amounts Trustor is required to discharge or pay under this Trust Deed, City on Trustor's behalf may (but shall not be obligated to) take any action that City deems reasonably appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by City for such purposes shall be promptly repaid by Trustor.

WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Trust Deed:

Title. Trustor warrants that: (a) Trustor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other that those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, City in connection with this Trust Deed, and (b) Trustor has the full right, power, and authority to execute and deliver this Trust Deed to City.

Defense of Title. Subject· to the exception in the paragraph above, Trustor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Trustor's title or the interest of Trustee or City under this Trust Deed, Trustor shall defend the action at Trustor's expense. Trustor may be the nominal party in such proceeding, but City shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of City's own choice, and Trustor will deliver, or cause to be delivered, to City such instruments as City may request from time to time to permit such participation.

Compliance With Laws. Trustor represents and warrants to City that Trustor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities.

Survival of Representations and Warranties. All representations, warranties, and agreements made by Trustor in this Trust "Deed shall survive the execution and delivery of this Trust Deed, shall be continuing in nature, and shall remain in full force and effect until such time as this Trust Deed is conveyed in full.


55

• EXHIBIT "E" • SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Trust Deed as a security agreement are a part of this Trust Deed:

Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures or other personal preperty, and City shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time.

Security Interest. Upon request by City, Trustor shall execute financing statements and take whatever other action is requested by City to perfect and continue City's security interest in the Rents and Personal Property. Trustor shall reimburse City for all expenses incurred in perfecting or continuing this security interest. Upon default, Trustor shall assemble the Personal Property in a manner and at· a place reasonably convenient to Trustor and City and make it available to City within three (3) days after receipt of written demand from City.

Addresses. The mailing addresses of Trustor and City from which information concerning the security interest granted by this Trust Deed may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Trust Deed.

FURTHER ASSURANCES; ATTORNEY-IN·-FACT. The following proVIstons relating to further assurances and attorney-in-fact are a part of this Trust Deed:

Further Assurances. At any time, and from time to time, upon request of City, Trustor will make, execute and deliver, or will cauSe to be made, executed or delivered, to City or to City's designee, and when requested by City, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as City may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the reasonable opinion of City, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Trustor's obligations under this Trust Deed, and (2) the liens and security interests created by this Trust Deed as ·first and prior lienS on the Property. Unless prohibited by law or City agrees to the contrary in writing, Trustor shall reimburse City for all costs and expenses incurred in connection with the matters referred to in this paragraph.

Attorney-in-Fact. If Trustor fails to do any of the things referred to in the preceding paragraph, City may do so for and in the name of Trustor and at Trustor's expense. For such purposes, Trustor hereby irrevocably appoints City as Trustor's attorney-in-fact for the purpose of making, executing, delivering,


56

• • EXHIBIT "E"

filing, recording, and doing all other things as may be necessary or desirable, in City's sole opinion, to accomplish the matters referred to in the preceding paragraph.

FULL PERFORMANCE. If Trustor completes Private Improvements and the Public hnprovements in the manner provided in the Project Financing Agreement, City shall execute and deliver to Trustee a request for full reconveyance and shall execute and deliver to Trustor suitable statements of termination of any financing statement on file evidencing City's security interest in the Rents and the Personal Property.

EVENTS OF DEFAULT. Each of the following, at City's option, shall constitute an Event of Default under this Trust Deed:

Completion of Private Improvements Default. Trustor fails to complete the Private Improvements in accordance with, and subject to, Sections 2.B(6}, 2.B{l0), and 3 of the Project Financing Agreement. With respect to any such default, Trustor shall have opportunity to cure rights as referenced in Section 3.A of the Project Financing Agreement.

Completion of the Public Improvements Default. Trustor fails to complete the Public Improvements in accordance with, and subject to, Sections 2.B(7), 2.B(l 0) and 3 of the Project Financing Agreement. With respect to any such default, Trustor shall have the opportunity to cure rights as referenced in Section 3 .A of the Project Financing Agreement.

Dissolution or Insolvency. The dissolution of Trustor, the termination of Trustor as a going business, the insolvency of Trustor, the appoinbnent of a receiver for any part of Trustor's property, any assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Trustor.

Creditor or Forfeiture Proceedings. Commencement of foreclosur~ or forfeiture proceedings, whether by judicial proceeding, self-help; repossession or any other method, by any creditor of Trustor or by any governmental agency against the Property. This includes a garnishment of any of Trustor's accounts. However, this Event of Default shall not apply if there is a good faith dispute by Trustor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Trustor gives City written notice of the creditor or forfeiture proceeding and ~akes reasonable steps to contest and defend against any such claim.

Right to Cure. If any default described above under the caption "Dissolution or Insolvency" or under the caption "Creditor or Forfeiture Proceedings" is curable, it maybe cured (and no Event of Default will have occurred) ifTrustor, after City sends written notice demanding cure of such failure: (a) cures the failure within fifteen (15) days; or (b) if the cure requires more than fifteen (15) days,


57

• • EXHIBIT "E"

immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.

RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs Wlder this Trust Deed, at any time thereafter, Trustee or City may exercise any one or more of the following rights and remedies:

Election of Remedies. Election by City to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Trustor under this Trust Deed, after Trustor's failure to perform, shall not affect City's right to declare a default and exercise its remedies.

Foreclosure by Sale. Upon an Event of Default under this Trust Deed, Beneficiary may declare the then balance due under this Trust Deed, calculated as provided in Sections 2.B(6), 2.B(7), 2.B(IO), and 3, as applicable, of the Project Financing Agreement, to be immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold the Property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Trust Deed and a statement as to the balance due under this Trust Deed, calculated as provided in Sections 2.B(6), 2.B(7), 2.B(10), and 3, as applicable, of the Project Financing Agreement. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell the Property at the time and phice fixed by it in the notice of sale, either as a whole or in separate parcels, and in such order as it may determine at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of the Property to public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement in accordance with applicable law. Trustee shall deliver to such purchaser its deed conveying the Property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee or Beneficiary may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: the balance due under this Trust Deed, calculated as provided in Section 2.B(l0) of the Project Financing Agreement, without any interest accumulation thereon, and the ·remainder, if any, to the person or persons legally entitled thereto.

Judicial Foreclosure. With respect to all or any part of the Real Property, City shall have the right in lieu of foreclosure by power of sale to foreclose by judicial

~ 9 TD (Final Clean 09.27.2011)

58

• • EXHIBIT "E"

foreclosure in accordance with and to the full extent provided by California law; provided, however, Trustor shall have no personal liability for any amounts due under this Trust Deed, and City specifically waives the right to assert or claim any right to such personal liability.

UCC Remedies. With respect to all or any part of the Personal Property, City shall have all the rights and remedies of a secured party under the Uniform Commercial Code, including without limitation the right to recover any deficiency in the manner and to the full extent provided by California Law.

Collect Rents. City shall have the right, without notice to Trustor to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above City's costs, against the balance due under this Trust Deed, calculated as provided in Section 2.B(IO) of the Project Financing Agreement. In furtherance of this right, City may require any tenant or other user of the Property to make payments of rent or use fees directly to City. If the Rents are collected by City, then Trustor irrevocably designates City as Trustor's attorney-in-fact to endorse instruments received in payment thereof in the name of Trustor and to negotiate the same and collect the proceeds. Payments by tenants or other users to City in response to City's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. City may exercise its rights under this subparagraph either in person, by agent, or through a receiver.

Appoint Receiver. City shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the costs of the receivership, against the balance due under this Trust Deed, calculated as provided in Section 2.B(IO) of the Project Financing Agreement. The receiver may serve without bond if permitted by law. City's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the balance due under this Trust Deed, calculated as provided in Section 2.B(l0) of the Project Financing Agreement, by a substantial amount. Employment by City shall not disqualify a person from serving as a receiver.

Tenancy at Sufferance. IfTrustorremains in possession of the Property after the Property is sold as provided above or City otherwise becomes entitled to possession of the Property upon default of Trustor, Trustor shall become a tenant at sufferance of City or the purchase of the Property and shall, at City's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of the City.

Other Remedies. Trustee or City shall have any other right or remedy, if any, provided in this Trust Deed and the Project Financing Agreement.


59

• • EXHIBIT "E"

Notice of Sale. City shall give Trustor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least fifteen (15) days before the time of the sale or disposition. Any sale of Personal Property may be made in conjunction with any sale of the Real Property.

Sale of the Property. To the extent pennitted by applicable law, Trustor hereby waives any and all rights to have the Property marshaled. In exercising its rights and remedies, the Trustee or City shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. City shall be entitled to bid at any public sale on all or any portion of the Property.

Attorneys' Fees; Expenses. If City institutes any suit or action to enforce any of the tenns of this Trust Deed, City shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees af trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses City incurs that in City's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the indebtedness and be added to the balance due under this Trust Deed, calculated as provided in Section 2.B(l 0) of the Project Financing Agreement. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, City's attorneys' fees and City's legal expenses, whether or not there is a lawsuit, appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees, title insurance, and fees for the Trustee, to the extent pennitted by applicable law. Trustor also will pay any court costs, in addition to all other sums · provided by law.

Rights of Trustee. Trustee shall have all of the rights and duties of City as set forth in this section.

POWERS AND·OBLIGATONS OF TRUSTEE. The following provisions relating to the powers and obligations of Trustee are part of this Trust Deed:

Powers of Trustee. In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following actions with respect to the Property upon the written request of City and Trustor: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; (b) join in granting any assessment or creating any restriction on the Real Property; and (c) join in any subordination or other agreement affecting this Trust Deed or the interest of City under this Trust Deed.

Obligations to Notify. Trustee shall not be obligated to notify any other party of a pending sale under any other trust deed or lien, or of any action or proceeding in


60

• • EXHIBIT "E"

which Trustor, City, or Trustee shall be a party, unless the action or proceeding is brought by Trustee. ·

Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all of any part of the Property, the Trustee shall have the right to foreclose by notice and sale, and City shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law.

Successor Trustee. City, at City, s option, may from time to time appoint a successor Trustee to any Trustee appointed under this Trust Deed by an instrument executed and acknowledged by City and recorded in the office of the recorder of Riverside County, State of California. The instrument shall contain, in addition to all other matters required by state law, the names of the original City, Trustee, and Trustor, the book and page where this Trust Deed is recorded, and the name and address of the successor trustee, and the instrument shall be executed and acknowledged by City or its successors in interest. The successor trustee, without conveyance of the Property, shall succeed to all the title, power, and duties conferred upon the Trustee in this Trust Deed and by applicable law. This procedure for sub.stitution of Trustee shall govern to the exclusion of all other provisions for substitution.

Acceptance by Tmstee. Trustee accepts this Trust when this Trust Deed, duly executed and acknowledged, is made a public record as provided by law.

NOTICES. Any notice required to be given under this Trust Deed shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law) when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class certified or registered mail poStage prepaid, directed to the addresses shown near the beginning of this Trust Deed. Trustor requests that copies of any notices of default and sale be directed to Trustor's address shown near the beginning of this Trust Deed. All copies of notices of foreclosure from the holder of any lien which has priority over this Trust Deed shall be sent to City's address as shown near the beginning of this Trust Deed. Any party may change its address for notices under this Trust Deed by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Trustor agrees to keep City informed at all times of Trustor's current address. Unless otherwise provided or required by law, if there is more than one Trustor, any notice given by City to any Trustor is deemed to be notice given to all Trustors.

STATEMENT OF OBLIGATION FEE. City may ~llect a fee, not to exceed the maximum amount permitted by law, for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of California.


61

• • EXHIBIT "E"

MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Trust Deed:

Amendments. This Trust Deed, together with the Project Financing Agreement, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Trust Deed. No alteration of or amendment to this Trust Deed shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.

Caption Headings. Caption headings in this Trust Deed are for convenience purposes only and are not to be used to interpret or define the provisions of this Trust Deed.

Merger. There shall be no merger of the interest or estate created by this Trust Deed with any other interest or estate in the Property at any time held by or for the benefit of City in any capacity, without the written consent of City.

Governing Law. This Trust Deed will be governed by, construed and enforced in accordance with federal law and the laws of the State of California. This Trust Deed has been accepted by City in the State of California.

No Waiver by City. City shall not be deemed to have waived any rights under this Trust Deed unless such waiver is given in writing and signed by City. No delay or omission on the part of City in exercising any right shall operate as a waiver of such right or any other right. A waiver by City of a provision of this Trust Deed shall not prejudice or constitute a waiver of City's right otherwise to demand strict compliance with that provision or any other provision of this Trust Deed. No prior waiver by City, nor any course of dealing between City and Trustor, shall constitute a waiver of any of City's rights or of any of Trustor's obligations as to any future transactions. Whenever the consent of City is required under this Trust Deed, the granting of such consent by City in any instance shall not be unreasonably withheld, but also shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of City.

Severability. If a court of competent jurisdiction finds any provision of this Trust Deed to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Trust Deed. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Trust Deed shall not affect the legality,

· validity or enforceabil~ty of any other provision of t~s Trust Deed.


62

• • EXHIBIT "E"

Successors and Assigns. Subject to any limitations stated in this Trust Deed on transfer of Trustor's interest, this Trust Deed shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Trustor, City, without notice to Trustor, may deal with Trustor's successors with reference to this Trust Deed and the indebtedness by way ~f forbearance or extension without releasing Trustor from the obligations of this Trust Deed or liability under the indebtedness.

Time is of the Essence. Time is of the essence in the performance of this Trust Deed.

Waive Jury. All parties to this Trust Deed hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by any party against any other party.

DEFINITIONS. As noted above, the Project Financing Agreement is incorporated herein by reference as though set forth in full and all defined terms therein shall, except to the extent, if any, otherwise specifically indicated, have the same meanings herein. In addition, the following capitalized words and terms shall have the following meanings when used in this Trust Deed. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and tenns used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Trust Deed shall have the meanings attributed to such terms in the Uniform Commercial Code:

Beneficiary. Tbe word ''Beneficiary'' means the City of Palm Springs, a municipal corporation and charter city, and its successors and assigns.

Default. The word "Defaulf' means a Default as set forth in this Trust Deed in the section titled "Events of Default."

Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1080', et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., Chapters 6.5 through 7. 7 of Division 20 of the California Health and Safety Code, Section 25100, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto.


63

• • EXHIBIT "E''

Event of Default. The words "Event of Default" mean any of the Events of Default set forth in this Trust Deed in the Events of Default section of this Trust Deed.

Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infec.tious . characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Enviromnental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos.

Improvements. The word "improvements" means all. existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements andlother construction on the Real Property. ("Private Improvements" and "Public Improvements" are defined below.)

City. The word "City" means the City of Palm ·springs, a municipal corporation and charter city, and its successors and assigns.

Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Trustor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without lunitation all. insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. The words "Personal Property'' also include all tangible and intangible items obtained or owned by, or in the possession of Trustor that are directly or indirectly related to the acquisition, development, design, construction, pennitting, marketing, or habitation of the Real Property or the improvements to be constructed on the Real Property, whether heretofore or hereafter issued, prepared, or executed, including without limitation aU permits, licenses, authorizations, allocations and other rights or approvals relating to or authorizing the development or occupancy of the Property, plus all utility or other deposits, reimbursement rights, studies, tests, contracts, plans and specifications, relating to the Property and improvements.

Private Improvements. The words "Private Improvements" shall have the meaning as set forth in the Project Financing Agreement.

Property. The word "Property'' means collectively the Real Property and the Personal Property.


64

• • EXHffilT "E"

Public Improvements. The words "Public Improvements" shall have the meaning as set forth in the Project Financing Agreement.

Real Property. The words "Real Property'' mean the real property, interests and rights, as further described in this Trust Deed.

Rents. The word "Rents" means all present and future leases, rents, revenues, income, issues, royalties, profits and other benefits derived from the Property together with the cash proceeds of the Rents.

Trust Deed. The words "Trust Deed" means this Trust Deed among Trustor, City, and Trustee, and includes without limitation all assignment and security interest provisions relating to the Personal Property and Rents.

Trustee. The word "Trustee" means -Fidelity National Title Company, a California corporation.

Trustor. The word "Trustor" means Palm Springs Promenade, LLC, a California limited liability company.

TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST.

TRUSTOR:

Palm Springs Promenade, LLC A California limited liability company

By: ____________________________ ___

Title: ------------------------------Dated: ------------------------------


65

• • EX.Hffi IT "E"

CERTIFICATE OF ACKNOWLEDGMENT

STATE OF CALIFORNIA ) ) ss

COUNTY ·oF RIVERSIDE )

On , 2011 before me -----------------------personally appeared , personally known to me to be the person(s) whose name is subscribed to the within instrument and acknowledged to me that he executed·the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted executed the instrument.

Witness my hand and official seal,

Signature----------------

(DO NOT RECORD) REQUEST FOR FULL RECONVEYANCE

(To be used only when obligations have been paid in fuU)

To: Trustee -------------------~

The undersigned is the legal owner and holder of all sums secured by this Trust Deed. All sums secured by this Trust Deed have been fully paid and satisfied. You are hereby directed, upon payment ·to you of any sums owing to you under the terms of this Trust Deed or pursuant to any applicable statute, to reconvey, without warranty, to the parties designated by the terms of this Trust Deed, the estate now held by you under this Trust Deed. Please mail the reconveyance and Related Documents to:

Date: --------

TD (Final Clean 09.27.2011)

Palm Springs Promenade, l~C

555 South Sunrise Way, Suite 200 Palm Springs, California 92264 Attn: John Wessman Telephone: (760) 325-3050

Facsimile: {760) 325-5848

Beneficiary: __ .....:....._ ___________ _ By: _______________________ __ Iu: ________________________ __

17

66

ASSIGNMENT

THIS ASSIGNMENT ("Assignment"), dated this _ day of 20_.~ is made by Palm Springs Promenade, LLC, a California limited liability company ("Assignor"), in favor and for the benefit of the City of Palm Springs, a California municipal corporation and charter city (11Assignee'l

RECITALS

A. Prior ~o the date hereof, Assignor (as Developer) and Assignee (as City) entered into a Project Financing Agreement ("PFA''). (The PFA is incorporated herein by reference as though set forth in full and all defined terms therein shall, unless clearly indicated otherwise, have the same meanings herein.)

B. Pursuant to Sections 2.A and 2.8.(5) of the PFA, Assignee (sometimes referred to below as City) agreed, subject to prior satisfaction of certain contingencies, to cause the City Payment to be deposited into the Private Improvement Escrow to be used to commence construction of the Private Improvements and the Public Improvement Payment to be deposited into the Public Improvement Escrow to used to commence construction of the Public Improvements. Pursuant to Sections 2.8(6) and 2.8{7) of the PFA, Assignor (sometimes referred to below as Developer) agreed to be responsible for completion of the Private Improvements and the Public Improvements, and to deposit additional funds into the Private Improvement Escrow and Public Improvement Escrow as necessary to achieve such completion. Pursuant to said Section

. 2.8(10) of the PFA, Developer also agreed to provide to City a Performance Trust Deed to secure Developer's obligation to complete the Private Improvements and the Public Improvements.

C. In order to further secure Developer's obligation to complete Private Improvements and Public Improvements, pursuant to Section 3.C. of the PFA, Developer also agreed to provide ·to City (i) for each Consultant Agreement with each Project Consultant, an Assignment of Developer's rights thereunder, and (ii) for each Contractor Agreement, an Assignment of Developer's rights thereunder.

D. Developer has now executed and entered into the Consultant Agreement or Contractor Agreement described on Exhibit "F-1'' attached hereto ("Assigned Agreement"), which Assigned Agreement is incorporated herein by reference as though set forth in full. Pursuant to this Agreement, Developer desires to assign said Assigned Agreement to City.

NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor agrees as follows:

67

• • 1. Assignment. Assignor hereby assigns, conveys and transfers to Assignee

all right, title and interest of Assignor under the Assigned Agreement referenced above. This Assignment includes, without limitation, any and all right, title and interest of Assignor in and to any and all plans, designs, drawings and/or specifications created or owned by the Project Consultant or Contractor, as applicable, and all permits and entitlements issued for any work of any kind related to the Private Improvements and Public Improvements.

2. Representations. Assignor represents and warrants to Assignee that (a) Assignor has full right, power and authority to make the foregoing assignment, (b) Assignor has not previously made any assignment, conveyance or transfer of the Assigned Agreement, (c) the copy of the Assigned Agreement provided by Assignor to Assignee is a true and correct copy of the original, which original has not been amended or altered in any respect, and (d) no party to the Assigned Agreement is in default or violation of the Assigned Agreement in any respect.

3. Power of Attorney. Assignor hereby irrevocably appoints Assignee as Assignor's attorney-in·fact, with full power of substitution, at Assignee's option, but with no obligation to do so, to enforce Assignor's rights and to perform Assignor's obligations under the Assigned Agreement.

4. Assignee only Beneficiary. The provisions of this Assignment are for the benefit of Assignee only, and no third party, including, without limitation, any party to the Assigned Agreement, shall be deemed to be a third party beneficiary of this Assignment.

5. Assignor's Rights until Default. Until such time, if ever, as Developer commits, and subsequently fails to timely cure, a default as referenced in Section 3 of the PFA, Assignee shall not exercise any of Assignor's rights under this Assignment, and Assignor shall have full right, power and authority to exercise rights and obligations under the Assigned Agreement. Upon the occurrence of any such uncured default, Assignee shall then become entitled, but not obligated, to exercise any and all rights and powers of Assignor under the Assigned Agreement. At such time as the Performance Trust Deed has been reconveyed per Section 2.8(10) of the PFA., this Assignment shall be terminated and be of no further force or effect.

EXECUTED by Assignor and made effective as of the date first written above.

DEVELOPER: PALM SPRINGS PROMENADE, LLC A California limited liability company By: ______________________________ _

Title:----------------Dated: ------------------------

68

• • CONSENTED TO by Project Consultant or Contractor, as applicable:

A California-------------By: _________________________ _ Title: ______________ _

Dated: ---------------------------

69

• EXHIBIT "F-1"

TO ASSIGNMENT

• (DESCRIPTION OF ASSIGNED AGREEMENT)

(TO BE PROVIDED)

70

• • EXHIBIT "G'

EASEMENT AGREEMENT

This EASEMENT AGREEMENT ("Agreement") is made effective as of the date of recordation with the Official Records ofRiverside County, California, by and between the City of Palm Springs, a California municipal corporation and charter city (''City"), and Palm Springs Promenade, LLC, a California limited liability company ("Developer").

RECITALS

A. With reference to the Proposed Parcel Map attached hereto as Exhibit A-1, the following applies:

1. City is the owner of the following {collectively "Existing Parking Structure"): ·

(a) City is the owner of Parcels 8, 9, 10 and 11, which Parcels are legally described on Exhibit A attached. Parcel 8 is improved with a three level {above, at and below grade) parking structure; Parcel 11 is improved with a two level (at and below grade) parking structure; portions of Parcels 9 and 10 are improved with a one level (below grade) parking ·structure which connects the three level parking structure on Parcel 8 with the two level parking structure on Parcel 11

(b) City is also the owner of a three dimensional airspace ("Airspace Parcel 4"), which contains a one level (below grade) parking structure that connects to the below grade parking structure on Parcel 11, and is legally described on Exhibit A.

(c) City is also the owner of a three dimensional airspace ("Airspace Parcel 7"), which contains a one level (below grade) parking structure that connects to the below grade parking structure on Parcel 8, and is legally described on Exhibit A.

(d) City is also the owner of a three dimensional airspace ("Airspace Parcel I"), which contains a one level (below grade) parking structure that connects to the below grade parking structure within the Airspace Parcel 7, and is legally described on Exhibit A.

(e) As used herein, any reference to "Existing Parking Structure" shall include, without limitation, any and all ramps, driveways, connection twmels, approaches, elevators, escalators and utility service areas used in connection with ownership, operation and/or maintenance of the Existing Parking Structure.

2. City is also the owner of the following (collectively "New Public Streets"): Lots A, B, C and D, which Lots are legally described on Exhibit A attached hereto, and are, as of the effective date of this Agreement, being constructed by

EA (Final Clean 09.27.2011) 71

• EXHIBIT "G' • Developer for the benefit of the City as and for new public streets. As part thereof, Developer will install, or will require utilities to install, in the New Public Streets the following lines and facilities: sewer, water (including meters and backflow devices), gas, electricity, telephone, cable television, high speed internet and related and similar services (collectively "utilities"). In addition, Developer will install stub out connections for each of such utilities to a point five (5) feet inside of each of the Private Development Parcels referenced in Section A.3 below. Such work by Developer shall be done in compliance with all applicable laws, ordinances, and regulations.

3. Developer is the owner of the following (collectively "Private Development Parcels"): Parcels 1, 2, 3, 4, 5, 6 and 7, which Parcels are legally described on Exhibit A; provided, however, Developer does not own the Airspace Parcel 4, the ·Airspace Parcel 7, or the Airspace Parcel I, which are owned by the City.

B. Pursuant to an executed Project Financing Agreement (which is incorporated herein by reference as though set forth in full), City and Developer have agreed to implement a Revitalization Plan (as defined therein). Pursuant to the Revitalization Plan, the following applies:

1. As of the effective date of this Agreement, City is refurbishing the ·Existing Parking Structure and installing the New Public Streets.

2. As of the effective date of this Agreement, Developer is (i) within Parcel 1, refurbishing extertor conunercial building improvements, (ii) within Parcels 2 and 3, demolishing existing eommercial building improvements and replacing them vrith new commercial building improvements, (iii) within Parcel 6, demolishing existing commercial building improvements and replacing them with a new multi-plex theater, (iv) within Parcel 4, temporarily leaving the parcel as existing surface parking pending future vertical development, (v) within Parcel 5, demolishing any existing commercial building improvements, installing temporary grass landscaping, which the City shall operate and maintain until vertical construction is proposed by the Developer, and (vi) within Parcel 7, demolishing any existing commercial building improvements and leaving surface area as existing parking and/or installing temporary grass landscaping, which the City shall operate and maintain until vertical construction is proposed by the Developer. Upon completion of the Revitalization Plan, refurbished and/or new core and shell building improvements will be in place and ready to receive tenant improvements as commercial leasing occurs on Parcels 1, 2 and 3; a new multi-plex theater will be in place and ready for tenant furniture, fixtures and equipment on Parcel 6; existing parking will temporarily remain on Parcel 4; temporary landscaping will be in place on Parcel 5; and temporary parking will be in place on Parcel 7.

C. The purpose of this Agreement is to establish easements and other rights and liabilities of the parties with respect to use, operation, maintenance and repair of the Existing Parking Structure and Public Streets, and agree on certain other matters as set forth herein.

2 EA (Final Clean 09.27.2011)

72

• • EXHIBIT "G'

NOW, THEREFORE, in consideration of the foregoing, the covenants and promises set forth herein, and other good and valuable conSideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer agree as follows:

I. Existing Parking Structure. With respect to the Existing Parking Structure, the following shall be applicable:

A. Easements to Developer. With respect to the Existing Parking Structure, City hereby grants and conveys to Developer, and Developer hereby accep'ts from City, easements and related rights, as follows:

(1) Purposes. The purposes of easements hereby granted and conveyed shall be as follows:

(a) Utilities. Developer, its authorized agents and employees, and Developer's authorized contractors, subcontractors and material suppliers, and their agents and employees, shall have the right to enter into the Existing Parking Structure, and any and all portions thereof, for purposes of installing and/or maintaining and repairing any and all utility and related and/or similar facilities and lines, as and to the extent reasonably necessary, expedient or convenient, to service the Private Development Parcels and/or improvements thereon. In connection with any such entry and activities pursuant thereto, reasonable steps shall be taken as necessary to avoid unreasonable interference with parking operations by City, and any damage to the Existing Parking Structure shall be promptly repaired. ·

(b) Vertical Construction. Developer, its authorized -agents and employees, and Developer's authorized contractors, subcontractors and material suppliers, and their agents and employees (Developer's Contractors"), shall have the right to enter into the Airspace Parcel 1, the Airspace Parcel 4 and/or the Airspace Parcel 7, for purposes of constructing and installing, and thereafter maintaining and repairing, such vertical support columns and related improvements as may be reasonably necessary, expedient or convenient to provide structural support for construction and development of coilll)lercial, residential and/or mixed use improvements above Parcel 1, Parcel 4 and/or Parcel 7, as applicable. In connection with any such entry and activities pursuant thereto, reasonable steps shall be taken as necessary to avoid unreasonable interference with parking operations by City, and any damage to other parts of the Existing Parking Structure shall be promptly repaired. Developer and Developer's Contractors shall indemnify, defend, and hold harmless City and City's employees, contractors, agents, public officials, council members and invitees from any damage to City's property, Existing Parking Structure, existing surface parking, new or existing public streets or any other personal or real property owned by City from any claims, costs, fees or suits arising from Developer's operation of the Private Improvements.

(c) Existing Trash Enclosure. Developer, its authorized agents, employees, guests, invitees and customers, and Developer's authorized tenants and subtenants, and their authorized agents and employees("Developer's Parties") s~

3 rv EA (Final Clean 09.27.2011) 73

• EXHIBIT "G' • have the right to exclusive use of the existing trash enclosure area (and dumpsters therein), located at grade level within Parcel 11, as shown on the Proposed Parcel Map attached hereto. City shall have access to such enclosure on commercially reasonable terms and agreed to by the Developer and City. Developer shall keep and usc such area clean, safe, free from vermin, and in compliance with all laws. Developer shall be responsible for ensuring all Developer Parties comply with this provision.

(2) Related Matters. The following related matters shall also be applicable:

(a) Easement Characteristics. The foregoing easements relating to the Existing Parking Structure shall be and are nonexclusive (except for trash enclosure areas as provided herein), granted in perpetuity, appurtenant to each and all of the Private Development Parcels, and enforceable as easements, covenants running with the land and equitable servitudes. In addition, except to the extent provided herein, all costs of operation, maintenance and repair of easement areas and/or improvements thereon shall be borne by City, and Developer shall have no obligation to pay or share any such costs pursuant to Civil Code Section 845, or otherwise.

(b) Closures for Repairs. City shall have the right, from time to time as and when reasonably necessary, to close portions of the Existing Parking Structure for repairs and maintenance. In connection with any such activities, reasonable steps shall be taken as necessary to avoid unreasonable interference with parking use as contemplated herein, and any damage to Private Development Parcels or improvements thereon shall be promptly repaired.

(c) Satisfaction of Parking Requirements. City acknowledges and agrees that the availability of parking within the Existing Parking Structure is and shall be deemed sufficient to satisfy all parking requirements for private improvements and uses contemplated by the Revitalization Plan, and that no additional parking requirements or parking fees shall be imposed in connection therewith. Subject to approval by City of future vertical development applications submitted for private improvements with respect to Parcels 4, 5 and 7, City further acknowledges and agrees that the availability of parking within the Existing Parking Structure is and shall be deemed sufficient to satisfy all parking requirements for private improvements and uses within said Parcels 4, 5 and 7, so long as such development is consistent with the Specific Plan for Museum Market Plaza as adopted by the City Council on December 2, 2009 ("Specific Plan") and that no additional parking requirements or parking fees shall be imposed in connection therewith. Subject to approval by City of future vertical development applications submitted for private improvements with respect to other areas within the Specific Plan, City further acknowledges and agrees that the availability of parking within the Existing Parking Structure is and shall be deemed sufficient to satisfy all parking requirements for private improvements and uses within such other areas, so. long as such development is consistent ~th the Specific Plan, and that no additional parking requirements or parking fees shall be imposed in connection therewith.


74

• EXHIBIT "G' • 2. New Public Streets. With respect to the New Public Streets, the following

shall be applicable:

A. Easements to Developer. With respect to the New Public Streets, City hereby grants and conveys to Developer, and Developer hereby accepts, easements and related rights, as follows:

(I) Purposes. The purposes of easements hereby granted and conveyed to Developer shall be as follows:

(a) Utilities. In common with the rights and obligations of any other party, such as a utility operator, Developer, its authorized agents and en1ployees, and Developer's authorized contractors, subcontractors and material suppliers, and their agents and employees, shall have the right to enter onto, above and below the New Public Streets for purposes of installing and/or maintaining and repairing any and all utility and related and/or similar facilities and lines, as and to the extent reasonably necessary, expedient or convenient, to service the Private Development Parcels and/or improvements thereon In connection with any such entry and activities pursuant thereto, .reasonable steps shall be taken as necessary to avoid unreasonable interference with. public street operations by City, and any damage to the New Public Streets shall be promptly repaired to the same condition as prior to such damage. Prior to execrcising any rights provided under this provision, Developer, its authorized agents and employees, and Developer's authorized contractors, subcontractors and material suppliers, and their agents and employees, shall apply for and receive an encroaclunent permit or any such other permit as required under the provisions of the Palm Springs Municipal Code related to perfonning work within public rights-of-way.

(b) Existing Trash Enclosure. Developer, its authorized agents, employees, guests, invitees and customers, and Developer's authorized tenants and subtenants, and their authorized agents and employees("Developer's Parties") shall have the right toexclusive use of the existing trash enclosure area (and dumpsters therein), located at grade level within Bclardo Road right of way, as shown on the Proposed Parcel Map attached hereto. City shall have access to such enclosure on commercially reasonable terms and agreed to by the Developer and City. Developer shall keep and use such area clean, safe, free from vennin, and in compliance with all laws. Developer shall be responsible for ensuring all J?eveloper Parties comply with this provision.

(c) Existing Utility Service Room. Developer, its authorized agents and employees, and Developer's authorized contractors, subcontractors and material suppliers, and their agents and employees, shall have the right to use, jointly with City, the existing mechanical room (and mechanical and utility facilities and lines therein), located below grade level (under Lot C) and shown on the Proposed Parcel Map attached hereto. The parties acknowledge and agree that said mechanical room (and mechanical and utility facilities and lines therein) provide service both to the Existing Parking Structure (owned by City) ·and the Private Development Parcels (owned by

kvfl) 5 EA (Final Clean 09.27.2011)

75

• • EXHIBIT "G'

Developer). The parties agree to cooperate with regard to the usage and space allocations in such room.

(2) Closures for Pedestrian Events. It is expected that all New Public Street entry points into the complex shown on Exhibit A will contain submersible stainless steel bollards that can be electrically raised, from time to time on a temporary basis, to block vehicular traffic and accorrunodate pedestrian only activities and fimctions. In connection therewith, reasonable steps shall be taken by City to provide reasonable advance notice to tenants adjacent to New Public Streets affected by any closure.

3. Parcels 4. 5. and 7 - Temporary Use of Surface Areas. With respect to surface areas of Parcels 4, 5, and 7, the following shall be applicable:

A. Installation. Operation and Maintenance. As noted in recital Section B.2 above, within Parcel 4, Developer is temporarily leaving the surface as existing parking, within Parcel 5, Developer is installing temporary grass landscaping, and within Parcel 7, Developer is temporarily leaving sunace area as parking and/or installing grass landscaping thereon. Subsequent to completion of the Revitalization Plan and until future vertical development by Developer, City shall at its cost (1) operate and maintain the surface level of Parcels 4 and 7 for purposes of parking, and (2) maintain landscaping on the surface level of Parcel 5 and if applicable, Parcel 7.

B. Easement to City. To perform installation, operation and maintenance functions as referenced in Section 3.A above, City shall have a·temporary easement in gross. Said easement shall, with respect to each such Parcel, commence upon completion of the Revitalization Plan and continue until receipt by City from Developer of a notice of termination of easement, which notice shall be delivered at least one hundred twenty (120) days prior to tennination. It is expected that, with respect to each such Parcel, such notice will not be given until Developer is ready to commence activities intended to result in the construction of vertical improvements.

4. Easement in Coniunction with Parcel3- Public Restrooms. To operate, maintain, and repair the Public Restrooms on Parcel 3, City shall have an casement in gross, in perpetuity.


A. Entire Agreement. Subject to the terms of the Project Financing Agreement and the Revitalization Plan, this Agreement contains the entire agreement of the parties with respect to matters covered herein, and there are no other agreements or representations, written or oral, other than as contained herein.

B. Cooperation. Each party agrees to and shall do and perform such other and further acts and properly execute and deliver such other and further documents


76

• EXHIBIT "G' • as may be reasonably necessary, expedient or convenient to implement the intents and purposes hereof.

C. Reasonable A:gprovals. Whenever this Agreement requires or calls for the approval or consent of any party hereto, such approval shall not be unreasonably withheld, delayed or condition~d.

D. Binding Arbitration. In the event of any dispute or controversy arising out of or relating to this Agreement, or the breach or performance of it, the parties shall reasonably attempt to resolve such dispute or controversy without resort to third party review or resolution. The parties shall first meet and confer on any such dispute or controversy. Such meeting(s) shall include any principal of the Developer and, at the discretion of the City, may include the City Manager and/or the City Council, either as a whole or through an ad hoc subcommittee designated by the City Council. Upon a determination by the parties that they are or will be unable to resolve the dispute or controversy on their own, then the parties shall submit the dispute, controversy or any remaining unresolved matter to binding arbitration, to be held in the Coachella Valley, and be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association.

E. Legal Fees. In the event of any dispute, arbitration or litigation arising out of or relating to this Agreement, or the breach or performance of it, the prevailing party shall be entitled to recover, in addition to any other appropriate relief, reasonable legal fees and costs incurred in connection therewith.


G. Inde_pendent Legal Rtmresentation. Each party hereto has, at all times during the negotiation and execution of this Agreement, been represented by independent legal counsel.



1. Atwlicable Law. This Agreement is entered into in California, and relates to California real property, and shall be determined in accordance with the laws of the State of California. ·


77

• EXHIBIT "G' • K. Venue. In the event of any arbitration or litigation arising out of or

relating to this Agreement, or the breach or performance of it, any such arbitration shall be conducted in the Coachella Valley, and any such litigation shall be filed in the Indio Branch of the Riverside CoWlty Superior Court.

L. Severability. In the event any provisions of this Agreement is deemed or construed by arbitration or a court of competent jurisdiction to be unenforceable, the remaining provisions shall nevertheless remain binding and enforceable to the maximum extent possible.

M. Interpretation. This Agreement and language herein has been prepared and agreed to by both parties, and any rules of contract interpretation calling for construction against one party or the other based on drafting, shall be inapplicable.

N. Notices. As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with retwn receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after .. transmission by telegraph to the recipient named below. All notices shall be addressed as follows:

EA (Final Clean 09.27.201 1)

If to City: CityofPalm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Attn: City Manager Telephone: (760) 322-8350 Facsimile: (760) 323-8207

Copy to: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Attn: City Attorney Telephone: (760) 323-8211 Facsimile: (760) 323-8207

If to Developer: Palm Springs Promenade, LLC 555 South Sunrise Way, Suite 200 Palm Springs, California 92264

8

78

• ~){fiii311r''(J'

Attn: John Wessman Telephone: (760) 325-3050 Facsimile: (760) 325-5848

Copy to: Ealy, Hemphill & Blasdel, LLP

•

71780 San Jacinto Drive, Suite I-3 Rancho Mirage, California 92270-5518 Attn: W. Curt Ealy Telephone: (760) 340-0666 Facsimile: (760) 340-4666

Either party may,. by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change

Q. Authority. Each party represents and warrants to the other that such party has full right, power and authority to sign, execute and ·enter into this Agreement.

(SIGNATURES ON FOLLOWING PAGE)


79

• EXHIBTI' "G' • IN WITNESS WHEREOF, the parties hereto have executed this Agreement and

made it effective as of the day and year set forth above.

DEVELOPER:

CITY:

AITEST:


EA (Final Clean 09.27.2011)

PALM SPRINGS PROMENADE, LLC A California limited liability company By: __________________________ __

Title: ----------------------------Dated:------------~~

CITY OF PALM SPRINGS A California municipal corporation and charter city

By:-------------------Title: ----------------------------.Dated: ------------------------

City Clerk

City Attorney

10

80

AMENDMENT NO. 1 TO PROJECT FINANCING AGREEMENT

(AGREEMENT NO. A6144)

THIS AMENDMENT NO. 1 TO PROJECT FINANCING AGREEMENT f'Amendment") is made and entered into this 18th day of April, 2012 by and between the City of Palm Springs, a California charter city ("City") and Palm Springs Promenade, LLC, a California limited liability company ("Developer").

RECITALS

A. City and Developer entered into a Project Financing Agreement ("PFA") for the purpose of implementing the Downtown Revitalization Project on September 29, 2011.

B. The City desires to fund its obligations under the PFA by the sale of lease revenue bonds secured in part by property and improvements the City will acquire from Developer pursuant to the PFA. It is the desire of the Parties that the sale of the lease revenue bonds and the sale of the property to the City will occur simultaneously. This Amendment expressly provides for the concurrent or simultaneous closing of the sale of the lease revenue bonds and the Acquisition Escrow as described in the Agreement.

AGREEMENT

1. The foregoing Recitals are true and correct.

2. Exhibit D, Schedule of Performance, Item 14 is amended in part to read:

14 Deposit of Purchase Price And Other Required Sums.

Concurrent or Simultaneous with Closing

678705.2

The City shall deposit the Purchase Price of the Parking Structure and Other public assets, funds for the Public improvements and other Required sums in escrow

Page 1 of2

81

..

3. Except as expressly provided above, all other terms and conditions of the original PFA shall remain unchanged and in full force and effect.

Date:~

APPROVED BY CITY COUNCil o+/ 1¥/2tJIZ 4A

A~J4.J./-

Date: A f fl!L l- (I 2 ot 2-

678705.2

City of Palm Springs "City"

ATTEST:

~ 1 11& u. A4

?"&City Clerk - e~:ittD/ZotZ--

PALM SPRINGS PROMENADE, LLC "Developer"

Title: 111 t1-tU 11-6-E R.

Page2 of2

82

0 ... M>&- 0 'I oo -0 o ·- 00 000 ••• 0 00 ' 0 o ' ' 0 ' '' 0 0•'0 OM 'Oo -·-· o ••-••• -• - o

. ' .

SECOND AMENDMENT TO PFA

This SECOND AMENDMENT TO PFA (''Amendment"), made effective as of the date fully executed, is by and between the City of Palm Springs, a California municipal corporation and charter city (''City .. ), and Palm Springs Promenade, LLC, a California limited liability company ("Developer"), with reference to the following:

RECITALS

A. PFA. On or about September 29, 2011, the City and Developer entered into a Project Financing Agreement ("PF A j, which related to financing, development, redevelopment, creation, and refurbishment of Public and Private Improvements in the DFP Area of downtown Palm Springs. The PF A, and all documents attached to and/or executed pursuant to the PF A, are incorporated herein by reference as though set forth in full, and all defined tenns therein shall, unless otherwise indicated, have the same mean;ngs herein.

B. Progress to Date. Subsequent to entry into the PF A, substantial progress has been made toward applicable goals and objectives set forth therein. Among other things, the Acquisition Escrow has closed and the City has acquired title to the Public Assets, the Bank of America building has been demolished, and Developer has nearly finalized information and documentation sufficient to submit a tentative tract map and major architectural application to the City.

C. Proposed Modifications. Experience gained in connection with progress to date has lead the parties to recognize that plans for development and redevelopment of the DFP Area will evolve and change over time as negotiations and discussions with potential tenants, end users and design consultants occur and take place. By this Amendment, the parties desire to approve proposed modifications to date, and acknowledge and agree that pursuit of the Project requires flexibility and future adjustments, changes and/or refinements will occur and be incorporated as the process continues.


1. Updated Site Plan. The original Project Site Plan (attached to the PFA as Exhibit A} is hereby replaced and superseded by the Updated Site Plan attached hereto as Exhibit "I". In the Updated Site Plan, certain Blocks have been re-designated, as follows: (a) former Block A-1 has been re-designated as Block A; (b) former Block A-2 has been re-designated as Block B and divided into b and b-1; (c) former Block C has been divided into blocks c and c .. I; (d) fonner Block E has been re-designated as Block F; and (e) fonner Block F has been re-designated as Block E. As of the effective date of this Amendment, Block designations and references in the PF A, and in any and all documents attached to and/or executed pursuant to the PF A, shall be deemed changed as indicated in

liPagc

83

the Updated Site Plan, and herein. In addition, the parties approve proposed additional and/or alternative development and/or land uses as indicated on the Updated Site Plan.

2. Updates to Project Description. The original Project Description (attached to the PFA as Exhibit B) is amerided and superseded to the extent provided in the Updates to Project Description attached hereto as Exhibit c'll".

3. Event Area on Block E. The parties approve development and use of Block E as an Event Area for a period of ten years from the effective date of this Amendment. (For the pmpose of this Section 3 of this Second Amendment, the term "effective date of this Amendment" shall mean the date on which the reconstruction of Blocks H-1 and H .. 2 as provided in Section 5 of this Second Amendment has been completed and vehicular and pedestrian access has been provided to the Event Area from Belardo and Museum Drive, all of which shall be completed no later than the completion date of the Project as provided in the Project Financing Agreement.) Developer will retain ownership of the Event Area, but City shall have an irrevocable right and license, for and during said ten year period, to use the Event Area for scheduling, holding, staging, allowing and/or conducting special events (and ancillary, related, and incidental pmposes ). Developer Will have similar rights, provided they do not conflict with events and/or activities previously scheduled by City. City and Developer will cooperate with each other and use reasonable and good faith to avoid conflicts. Developer shall have full possession and control of the site, except when City is using it for event pwposes. City shall provide reasonable (not less than 48 hours) advance notice to Developer as to when and for what purposes.City will, from time to time, desire use of the site. Developer shall pay all costs to get the site in a condition to receive event equipment as designated by City, and City sba1l pay all costs of acquiring and installing such equipment (For the purpose of this Amendment, the phrase "to get the site in a condition to receive event equipment" includes but is not limited to installation of all hardscape, landscape, perimeter and ancillary lighting, security systems, irrigation systems, access improvements and electrical, sewer, and audio-visual infrastructure.) During the ten year term, Developer shall maintain the site (but not the equipment) and advance and pay all costs reasonably incurred in connection therewith and the City will pay all costs to maintain the event equipment in a first class condition. The Parties will meet and confer in good faith as provided herein on a plan for the use of the Event Area and the equitable sharing of the maintenance costs required pursuant to this Agreement Each party will be responsible for obtaining insurance or self insurance coverage sufficient to protect its own interests. During said ten year period, Block E will be used only as an Event Area. Thereafter, Developer may, subject to receipt of normal City approvals, develop and use Block E for any purposes authorized by the Museum Market Plaza Specific Plan ("Specific Plan).

4. Proposed Hotel in Block c-1. Consistent with the provisions of the Specific PI~ Developer may pursue development and operation of a 170+/- room first class new hotel in Block c... I. The Parties recognize that such a first class new hotel is eligible for assistance pursuant to Chapter 5.26 (as amended) of the Palm Springs Municipal Code eordinance"). Accordingly, Developer intends to pursue development

21Page

84

.... ····-

of the Palomar (or equivalent}, a Kimpton Hotel, a high-end first class new hotel pursuant to the Ordinance (as referenced in Section 5.26.040 as amended), and City agrees to fully cooperate in that effort. City acknowledges that City Staff has done a ·preliminary review of basic plans for the hotel and concluded that, if timely commenced, constructed and operated as proposed, it will qualify with the provisions of the Ordinance relating to first class new hotels. The parties further acknowledge that obtaining financing will require execution of a formal written agreement that sets forth terms and conditions relative to hotel development and operation, and implementation of the Ordinance in connection therewith. The parties agree that it: despite commercially reasonable efforts by Developer, Developer is unable to meet the requirements of the Ordinance, Developer shall have an additional 6 months, beyond any existing completion deadline, to secure entitlements, including building permits, for an alternative development plan for Block c-1 and an additional 12 months after issuance of building permits to complete such development in a manner authorized by the PF A.

5. Blocks H-1 and H-2 Reconstruction. With respect to the portions of Block H-1 and Block H-2 which do not include subsurface parking facilities, the parties agree that upon receipt of appropriate permits from City, Developer shall, at an additional cost to the City but without any profit or m.ark .. up to Developer, do or cause to be done the following: (i) demolish and remove all existing improvements, i.e., concrete surface areas, walls, pavers, landscaping, etc., (ii) replace such improvements and level the site with compacted fill dirt, (iii) install new landscaping <iras~ shrubs, trees, irrigation) and appropriate hardscape, (iv) install (on immediately adjacent areas for the benefit of subsurface parking) a new stairwell and mechanical exhaust ventilation system, as may be required by Code, and (v) install any other improvements as reasonably necessary for the completion of the Project

6. Confinnation of Status. Each of the parties acknowledges, agrees and confirms that the PF ~ and each of the documents attached to and/or executed pursuant to the PF A and approved by the City Council, are in good standing, and that neither party is in any way in default with respect to same.

7. Cooperation. Each party agrees to do and perform such other and further acts, and execute and deliver such other and further documents, as may be necessary, expedient or appropriate to effectuate the intents and/or purposes hereof.

8. Effect of Amendment To the extent provided and/or contemplated herein, the PF A, and all documents attached to and/or executed pursuant to the PF A, are deemed amended and superseded. Except to the extent provided and/or contemplated herein, the PFA, and all documents attached to and/or executed pmsuant to the PFA, shall remain in effect as originally written.

9. Incomoration of Recitals and Exhibits. Bach of the recitals set forth herein and each of the Exhibits attached hereto are incorporated by reference and made a part hereof as though set forth in full.

-31 Page

85

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and made it effective as and when specified above.

DEVELOPER:

CITY:

A TrEST:

PALM SP~GS PRO:M:PNADE, LLC A · · ·ted lia ity company

B ·~~~~~~~---


~'!!>?:~~~city Title:c:;""'C ~~~ ~ Dated: ~a,-~~

7

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APPROVED AS L~'4~ /1 TOLEGALFORM: ~~~~~~~~---------------

Ci~ Atto y

4fPage

APPROVED BY CITY COUNCIL to/1'1/ZOI£ AC714-L}

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· EXHIBITII TO

SECOND AMENDMENT TO PFA

UPDATES TO PROJECT DESCRIPTION

As of the effective date of the Second Amendment to PFA ("Amendment") to which this Exhibit "ll" is attached, the original Project Description, as set forth on Exhibit "B" attached to the PF A, is amended and superseded as and to the extent provided below~

1. Updated Site Plan. Any reference to Site Plan shall be deemed to refer to the Updated Site Plan (Exhibit "I'' attached to the Amendment), and future development and uses within Block areas shall be consistent with designations set forth on the Updated Site Plan.

2. Changed Block Designations. Block designations and references in the Project Description shall be deemed changed as indicated on the Updated Site Plan.

3. Block F. Any reference to a movie theater in Block E shall be deemed del~ it being understood that pursuant to Section 2 of the Amendment, Block E will be designated for use as an Event Area for a period of ten years, and thereafter may. subject to receipt of normal City approvals, be developed for any purposes authorized by the Specific Plan or PF A.

4. Block c-1. Subject to receipt of normal City approvals, Block c-1 may be developed into a high end boutique hotel of approximately 170+/- rooms, and related and .incidental uses, in general accordance with preliminary height and massing plans submitted to the City.

5. Bollards. Any reference to "electronically operated bollards" shall be deemed changed to refer to "removable bollards".

88

THIRD AMENDMENT TO PFA

This THIRD AMENDMENT TO PF A ("Third Amendment"), made effective as of the date fully executed, is by and between the City of Palm Springs, a California municipal corporation and charter city ("City"), and Palm Springs Promenade, LLC, a California limited liability company ("Developer"), with reference to the following:

RECITALS

A. PFA. On or about September 29, 2011, the City and Developer entered into a Project Financing Agreement {"PF A"), which related to financing, development, redevelopment, creation, and refurbishment of Public and Private Improvements in the DFP Area of downtown Palm Springs. The PF A, and all documents attached to and/or executed pursuant to the PF A, are incorporated herein by reference as though set forth in full, and all defined tenns therein shall, unless otherwise indicated, have the same meanings herein.

B. First and Second Amendment. Prior to the effective date hereof, City and Developer entered into a First Amendment to PFA ("First Amendment") and a Second Amendment to the PF A ("Second Amendment"). The First Amendment and Second Amendment are incorporated herein by reference as though set forth in full, and all defined terms therein shall, unless otherwise indicated, have the same meanings herein.

C. Third Amendment. The parties now desire to enter into this Tirird Amendment.

NOW, TIIEREFORE, IT IS AGREED AS FOLLOWS:

I. Further Updated Site Plan. The original Project Site Plan (attached to the PF A as Exhibit A) was replaced and superseded by the Updated Site Plan attached to the Second Amendment as Exhibit 'T'. Said Updated Site Plan is hereby superseded and replaced by the Further Updated Site Plan attached hereto as Exhibit "X".

2. Effect of Third Amendment. To the extent provided and/or contemplated herein, the PFA (and all documents attached to and/or executed pursuant to the PFA), the First Amendment and Second Amendment are deemed amended and superseded. Except to the extent provided and/or contemplated herein, the PFA (and all documents attached to and/or executed pursuant to the PFA), the First Amendment and Second Amendment shall remain in effect as originally written.

3. lncotpOration of Recitals and Exhibits. Each of the recitals set forth herein and each of the Exhibits attached hereto are incorporated by reference and made a part hereof as though set forth in full.

dfppfathirdamend Ill 012013

89

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and made it effective as and when specified above.

DEVELOPER:

CITY:

ATTEST:


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91

.FOURTH AMENDlVIENT TO PFA

This FOURTH AMENDMENT TO PF A ("Fourth Amendtnent"), made effective as of the date fully executed, is by and between the City of Palm Springs, a Califon1ia tnunicipal corporation and charter city ("City11

), and Paln1 Springs Promenade, LLC, a California limited liability company ("Developer,), with reference to the fol1owing:

RECITALS

A. PFA. On or about September 29, 2011, the City and Developer entered into a Project Financing Agreement ("PFA"), which related to financing, development, redevelopment, creation, and refurbishment of Public and Private Improvements in the DFP Area of downtown Palm Springs. (The PF A, and all documents attached to and/or executed pursuant to the PF A, are incorporated herein by reference as though set forth in full, and defined terms therein shall, unless otherwise indicated, have the same meanings herein.)

B. First. Second and Third Amendments. Prior to the effective date hereof, City and Developer entered into a First Amendment to PF A ("First An1endmenf'), a Second Amendn1ent to PF A e~second An1endment"), and a Third An1endment to PF A e'Third Amendmenf'). (Said First, Second and Third Amendments are incorporated herein by reference as though set forth in full, and defined tenus therein shall, unless otherwise indicated, have the same meanings herein.)

C. Fourth Amendn1ent. The parties now desire to enter into this Fourth Amendment.


1. Site Plan and TPM. As of the effective date of this Fourth Amend1nent, the Site Plan for the DFP Area is as indicated on Exhibit A attached hereto, and the tentative parcel map ("TPM") for the DFP Area is as indicated on Exhibit B attached hereto. The parties agree that, upon request by Developer made at any time before recordation of a final map pursuant to the TPM, the DFP Property may be legally divided and functionally organized, in a manner generally consistent with divisions, functions and conditions of approval applicable to the TPM, by way of lot line adjustments, easement grants and reservations, and certificates of compliance, rather than by way of recordation of a final map for the TPM.

2. Force Majeure Occurrences. With respect to the Project, the parties acknowledge that (a) three lawsuits have been commenced, (b) two of said lawsuits have been dismissed, and (c) one lawsuit, i.e., a Petition for \Vrit of Mandamus filed by Advocates for Better Community Development ("ABCD"), Riverside Superior Court Case No. RIC 1302004, received a Court issued Denial of Petition on April 4, 2014. The last day ABCD could appeal the Denial of Petition was July 8, 2014 and such appeal was not filed. The parties acknowledge and agree that such lawsuits constituted force majeure

Dfppfatourthamenddch I 0.30.2014

92

occurrences and suspended and tolled titnes for perfomumce by Developer from February 19, 2013 to July 8, 2014. The parties further acknowledge and agree that on or about January 29, 2014, the City entered into a Settlement Agreement with ABCD pursuant to which, anwng other things, ABCD filed a dismissal with prejudice in the Superior Court Action of any and all claims relating to Block C and the hotel (i.e., the Kitnpton Hotel previously approved by the City on Block C-1 ). The Parties acknowledge that multiple discretionary entitlements have been approved by the City and additional discretionary entitlements will be submitted to the City for review and approval. The Parties agree that any litigation filed against any portion of the Project for which all discretionary entitlen1ents have not been approved shall not constitute force majeure occurrences and suspend and toll times tor perfom1ance by Developer for any Block within the Project for which all discretionary permits have been approved or has been othcnvise approved and vested. For the purposes of this Section 2, the term "discretionary entitlement'~ does not include tninisterial pennits

3. Block E. The parties agree that Block E, as shown on the attached Site Plan, shall be conveyed by Developer and acquired by City in fee and without condition or limitation except as expressly provided in this Section 3 of this Amendment No.4. Block E shall be improved, used, operated, and maintained in accordance with the following:

A. Escrow. Within 10 days after execution of this Fourth Amendment, an escrow ("Escrow") shall be opened with a local escrow office of First American Title Insurance Company ("Escrow Holder"), and Escrow instructions, consistent with this Fourth Amendment and as reasonably requested by Escrow Holder, shall be promptly executed and delivered by the parties. The close of Escrow shall occur within 30 days after opening, and Block E will then be conveyed by Developer to City in accordance with the terms hereof.

B. Value. Prior to execution of this Fourth Atnendment, City requested and received a Valuation Report dated January 17, 2014, which valued Block Eat the swn of $5,300,000. Notwithstanding such Valuation Report, City will pay $4.,500,000 for Block E and such sum will be delivered at close of Escrow. Said funds shall be used to create additional parking to the extent provided in Section 3.B(l) below.

(I) Additional Parking. Developer agrees that all funds received per Section 3.B above, will be deposited directly into the Private Improvement account and be released, upon authorizations frotn the IFC Agent and will be used to construct approximately 188+/- new underground parking spaces below surface areas of Blocks B and B-1, Market Street, and Andreas Street. Such new spaces are depicted on Exhibit C attached hereto and will be constructed approximately concurrently with streets to be constructed in the DFP Area. Deposit of the funds per Section 3.B above into the Private Escrow Improvement account and use of such funds as provided in this paragraph will satisfy the Developer's obligation to deposit $2,000,000.00 into the Private Escrow Account as required under Section 2.8(6) of the PFA.

Dfppfafourthamenddch 1 0.30.20 14 2 93

(2) Use of Parking. Such new parking spaces will be designated for use by occupants of development constructed within Blocks A, B, B-1, C, C~l, D, F, and G, and the guests and invitees of the occupants of such developtnent.

C. Title. Prior to execution of this Fourth Amendment, City received a cun·ent Preliminary Title Report ("PTR") issued by First American Title Insurance Con1pany ("Title Company") covering Block E, and copies of all recorded exceptions to title shown by the PTR. City has approved the PTR and all such exceptions, and will take title subject to such exceptions and standard title insurance policy exclusions and exceptions. At close of Escrow, City will receive a CLT A title insurance policy issued by the Title Co1npany in the face amount of $4,500,000.

D. Property. Block E is currently in process of demolition and removal of existing surface improve1nents. Subsequent thereto, Developer shall, at no cost to the City, do the following: (i) cornplete public streets to be located adjacent to Block E, i.e., Belardo Road and Main Street, with all appropriate utilities, including 'vithout limitation, water, sewer, gas, telecommunications including cable television, and electric utility services installed in said streets; (ii) install c01mections for such utility services, stubbed five (5) feet into the Block E site at locations designated by the City Manager; (iii) convey good and marketable title to Block E to City, consistent with the provisions of Section l.A( 1 )(b) of the Project Financing Agreement and this A1nendment No. 4; and (iv) deliver physical possession of Block E to City in the form of a clean dirt site. Fo11owing such delivery, City shall, at its cost, install and maintain the following within the Block E property: public restrooms, appropriate hardscape, landscape, perimeter and ancillary lighting, security systems, irrigation systems, access ilnprovements, and electrical, sewer and audio-visua1 infrastructure. Such installation work by City will be coordinated so as to be completed approximately concurrently with completion of Private Improvements on Blocks C and/or C-1.

E. Use of Block E. Subsequent to installation of the Block E improvements pursuant to Subsection 0 above,, City sha11, at its cost, own, operate and maintain, in a neat, clean, attractive, safe, functional and first class condition, the Block E property as public open space, and as an active and vibrant area for staging community and public events such as concerts, movies, fanners tnarkets, public gatherings, or community events of any kind or nature on or adjacent to (per Section 3.F below) Block E until at least January 1, 2044 or the date on which the O'Donnell Golf Club ceases operations at the O'Donne1l Golf Course, whichever event occurs first. At any time after such date, the City may sell or lease Block E for any use or purpose as the City 1nay determine. Before City may sell or lease Block E to a third party or entity, or any portion thereof as provided herein, the City shall first offer Block E or the portion thereof, to Developer on the same terms and conditions as are offered by the third party. Developer shall have 30 days during which to accept said offer. If Developer does not accept said offer within said period, City shall be free to accept the third-party offer. If City does not enter into an agree1nent with the third party on said terms and conditions and close the transaction within I 20 days, City's right to sell or lease Block E or any portion thereof to the third party shall expire and the procedure described in this Section shall again be applicable. Nothing herein shall

Dfppfafourthamenddch l 0.30.20 I 4 3 94

prohibit or limit the right or the ability of the City to contract with one or more third parties to perfonn any of the City's obligations pursuant to the tenns of this Section E, regardless of whether such agreement is characterized as a contract for services, a ]ease, or any other label or description.

F. Noise Easement. Developer, as the owner of Blocks C-1 and F, shall convey to City, and agents, e1nployees, contractors, and designees, a noise easement over the Project, including without limitation, for the staging, conducting, or a11owing of events as described above and the residua] effects of such events, which may inc1ude loud tnusic, loudspeakers, fireworks, vibrations, debris, and other noise or activities, and closure of all or parts of New Main Street between the westerly aligmnent of Belardo Road and Museum Drive so 1ong as such closure does not interfere with access to Parcel 5, which may disturb or disrupt any owner, tenant, or guest within the Project, between the hours of 8:00 am and 10:30 pm. ln the event the City ceases to use Block E for event uses, the City shall tem1inate the noise easement provided in this Section. City, as the owner of Block E, shall convey to Developer, as the owner of Blocks C-1 and F, a similar noise easement.

G. Escrow Costs. Escrow costs and the premiun1 for the title insurance policy shall be paid for by City. Property taxes and assess1nents shall be prorated between the parties at close of Escrow.

H. Prior Provisions. The prov1s1ons of Section 3 of the Second Amendment relating to Block E are superseded and replaced by the provisions of Section 3 of this Fourth Amendn1ent.

4. Blocks A and A-I. As leasing discussions have occurred, it beca1ne clear that because of concerns about the height of proposed retail facilities, commercial tenants were opposed to locating in the Block A building that was originally scheduled to remain in place. As a result, and after examination of various alternatives, it has been determined that such building should be replaced with two new buildings, one on Block A and one on Block A-1, as depicted on the attached Site Plan. Updated concepts for Block A call for a 3 story structure, well within Specific Plan height parameters, which will contain retail and restaurant uses at ground level, with office and other uses on the second and third floors. Developer intends to submit revised plans for Block A at or prior to execution of this Fourth Amendment. Block A-1 will be designed and developed as part of future phase 2. When Block A-1 is developed, a 30 foot wide pedestrian paseo will be created, and it wi11 be aligned to match on the south \Vith proposed Market Street and on the north with an existing entry into the adjacent Hyatt Hotel.

5. Blocks B and B-1. The Site Plan attached to the original PF A contemplated layout configurations, land uses, improvements, etc., that have evolved and changed over time as pursuit of the Project, and negotiations and discussions with potential tenants, end users, design consultants and the City have occurred. Block E, originally planned for 65,000-70,000 square feet of cotninercial space plus 165 upper level residential units, is now planned tor 50,530 square feet of public open space. Increasing open space (and completely eliminating Private Improvements) in Block E logically justifies decreasing

Dfppfafourthamenddch I 0.30.20 14 4 95

open space (and increasing Private ltnprovements) in nearby Blocks B and B-1. Updated concepts for Block B call for a two story structure which will contain retail and restaurant uses. Developer intends to submit revised plans for Block B at or prior to execution of this Fourth Amendment. Block B-1 will be designed and developed as pa11 of future phase 2.

6. Block C Public Restrooms. Developer agrees, within a building in Block C, to design and construct at its cost, at a location within such building reasonably acceptable to City, public restroom facilities for women consisting of at least four {4) stalls and related wash basins and facilities, and public restroom facilities for men consisting of at least two stalls, two urinals, and related wash basins and facilities, fully compliant with all applicable laws, including without limitation physical disability access require1nents, and connect same to requisite utilities (water, power, sewer). Developer shall convey easement or leasehold title to the restrooms space and improvements to the City in a fonn acceptable to the City Manager, and thereafter and at all times the City shall operate and maintain such facilities in a neat, clean, attractive, safe, functional, and first class condition.

7. Maintenance of Streets. Sidewalks and Other Common Areas. Within the Project and DFP Area, once constructed and accepted (a) City shall, at its sole cost and expense, operate and maintain all street and sidewalk areas and all landscaping and other itnprove1nents, e.g., utilities nonnally maintained by City, located therein, and (b) Developer shall, at its sole cost and expense, operate and maintain all other comtnon areas and improvements and landscaping therein, all as shown on Exhibit "A."

8. Performance Trust Deed. As part of the PF A, Developer provided City with a Performance Trust Deed to secure obligations of Developer under the PF A to complete Private Improvements. The parties acknowledge that plans for development of the Project have evolved and changed over time, and that such changes, while significantly improving the overall Project, greatly increase Developer costs. Such increased costs can only be funded by substantial construction loans, and such loans can only be obtained if the City releases the Performance Trust Deed. The City is strongly in support of such changes and has agreed, and hereby does agree~ to incrementally reconvey the Pertonnance Trust Deed on a parcel by parcel basis concurrently with the recordation of any loan to fund all Private Improvements on each such parcel to be constructed within the DFP Area, so long as 100% of the costs to complete such in1provements are fully funded by the construction loan and/or Developer funds as detennined by the lender and reviewed by the City Manager or the City Manager's designee at a location in the Coachella Valley identified by the lender In tum, Developer has agreed, and hereby does agree, that expenditures from any such loan will require prior approval of the IFC Agent, as conteinplated by original requirements of the PF A.

9. Development Agreement. At any time, upon request by Developer, City and Developer shall exert and use comtnercially reasonable best efforts to prepare, finalize., execute and implement a Develop1nent Agreement, as statutorily authorized by Section 65864, et ~- of the Califon1ia Government Code, pursuant to which, among other things, Developer will obtain vested rights to construct and operate, in whole or in part,

Dtppfatourthamenddch I 0.30.20 14 5 96

improvements contemplated for construction and development within areas covered by the Project and the Specific Plan. In connection with any such efforts and Development Agreement, City agrees to cooperate and proceed without charge, e.g., without itnposition of fees, costs or exactions, upon or against Developer or the Project.

10. Amendment of Grant Deed for Parking. The Parties agree to amend the Grant Deed conveying the Parking Facilities as provided in the PF A to allow the City Council with the discretion to prohibit parking in the underground parking area in Block A between the hours of 3:00 am and 6:00 am as the City Cow1cil may designate by resolution.

11. Effect of Fourth Amendment. To the extent provided and/or contemp1ated herein, the tenns, provisions, covenants, and conditions of the PFA (and all docUinents attached to and/or executed pursuant thereto) and the First, Second and Third A1nendments, are deemed amended and superseded. Except to the extent provided and/or contemplated herein, the tenns, provisions, covenants and conditions of the PFA (and all documents attached to and/or executed pursuant thereto) and the First, Second and Third Amendments, shall remain in effect as originally written.

12. Incorporation of Recitals and Exhibits. Each of the recitals set forth herein and each of the exhibits and documents attached hereto are incorporated herein by reference and made a part hereof as though set forth in full.

IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment and made it effective as and when specified above.

DEVELOPER:

CITY:

AITEST:

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charter city

APPROVED BY CllY COl!NGlL ocr /1-, Jzt)v+ 4-~g.

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Dtppfatourthamenddch I 0.30.2014

Exhibit A

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Exhibit C

Parking Space Plan for DFP Area

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PROPOSED PRIVATE Ba.OWGRADE PARKING GARAGE (NOT AVAILABLE TO THE PUBLIC) iii

EXISTING UPPER LEVEL PARKING GARAGE

103

ATTACHMENT 2

104

Recording Requested By First American Title Com.pany

WHEN RECORDED MAIL TO: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager

SEND TAX NOTICES TO: City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Attn: City Manager

ASSESSOR PARCEL NUMBERS:

DOC # 2012-0298857 06/27/2012 05:00 PM Fees: $0.00 Page 1 of 41 . Recorded in Official Records . County of Riverside Larry W. Ward Assessor, County Clerk & Recorder

-rhis document was electronically submitted to the County of Riverside for recording'** Receipted by: LCWEATHERS

3 92. 9l'tJ1- 'l." 513~560-002-2~ 5J 3-560-004-4; 513-560-007-7; 513~560-008-8; 513-560-009-9


TIDS DEED OF TRUST is dated :iwne 2.] , 2012, among Palm Springs Promenade, LLC, a California limited liability company, whose address is 555 South Sunrise Way, Suite 200, Pahn Springs, CA 92264 (''Trustor"); the City of Palm Springs, a municipal corporation and charter city, whose address is 3200 East Tahquitz Canyon Way, Palm Springs, CA 92262 (referred to herein sometimes as "City" and sometimes as "Beneficiary"); and Fidelity National Title Company, a California corporation, whose address is 1300 Dove Street, Suite 310, Newport Beach, CA 92660 ("Trustee").

CONVEYANCE AND GRANT. For valuable consideration, Trustor hereby grants, transfers and assigns to Trustee in trust, with power of sale, for the benefit of City as Beneficiary, all of Trustor's right, title, and interest in and to the following described real property, together withal existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the ''Real Property") located in Riverside County, State of California:

SEE EXHIBIT "C" ATIACHED HERETO AND MADE A PART HEREOF

Trustor presently assigns to City (also known as Beneficiary in this Trust Deed) all of Trustor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. This is an absolute assignment of Rents made in connection with an obligation secured by real property pursuant to California Civil Code Section 2938. In addition, Trustor grants to City a Unifonn Commercial Code security interest in the Personal Property and Rents.

THIS DEED OF TRUST, INCLUDING 1HE ASSIGNMENT OF RENTS AND TilE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN

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TO SECURE PERFORMANCE OF ALL OBLIGATIONS OF TRUSTOR TO COMPLETE PRN ATE WPROVEMENTS AND PUBLIC IMPROVEMENTS PURSUANT TO THAT CERTAIN PROJECT FINANCING AGREEMENT BETWEEN TRUSTOR AND ·CITY OF EVEN DATE HEREWITH (the "Project Financing Agreement"). ANY EVENT OF DEFAULT UNDER THE PROJECT ,FINANCING AGREEMENT, SHALL ALSO BE AN EVENT OF DEFAULT UNDER TinS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:

PERFORMANCE. Except as otherwise provided in this Trust Deed, Trustor shall strictly and in a timely manner perform all of Trustor's obligations under the Project Financing Agreement ~o complete Private Improvements and the Public Improvements pursuant to the above referenced Project Financing Agreement. (The Project Financing Agreement is incorporated herein by reference as though set forth in full and all defined terms therein shall, except to the extent, if any, otherwise specifically indicated, have the same meanings herein.)

POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees that Trustor's possession and use of the Property shall be governed by the following provisions:

Possession and Use. Until the occurrence of an Event of Default, Trustor may (1) remain in possession and control of the Property; (2) use, operate and/or manage the Property, and construct improvements thereon pursuant to the Project Financing Agreement; and (3) collect the Rents from the Property.

Duty to Maintain. Trustor shall, subject to constructing improvements pursuant to the Project Financing Agreement, maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value.

Compliance With Environmental Laws. To Trustor's current actual knowledge, with no further duty of inquiry or investigation, Trustor represents and warrants to City that: ( 1) During the period of Trustor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property, except in compliance with applicable Environmental Laws; (2) Trustor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by City in writing, (a) any breach or violation of any Environmental Laws, (b) any use generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, except in compliance with applicable Environmental Laws; or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by City in writing, (a) neither Trustor nor any

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tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property, except in compliance with applicable Environmental Laws; and (b) any such activity shall be conducted in compliance with all · applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Trustor authorizes City and its agents to enter upon the Property to make such inspections and tests, at City's expense, as City may deem appropriate to determine compliance of the Property with this section of the Trust Deed. Any inspections or tests made by City shall be for City's pmposes only and shall not be construed to create any responsibility or liability on the part of City to Trustor or to any other person. Trustor hereby (1) releases and waives any future claims against City for indemnity or contribution in the event Trustor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify and hold harmless the City against any and all claims, losses, liabilities, damages, penalties, and expenses which City may directly or indirectly sustain or suffer resulting from a breach of this section of the Trust Deed or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Trustor's ownership or interest in the Property, whether or not the same was known to Trustor. The provisions of this section of the Trust Trust Deed, including the obligation to indemnify, shall survive the reconveyance of the lien of this Trust Trust Deedand shall not be affected by City's acquisition of any interest in the Property, whether by foreclosure or otherwise.

Nuisance, Waste. Except for demolition and construction work contemplated by the Project Financing Agreement, Trustor shall not cause, conduct or permit any nuisance nor commit, permit or suffer any stripping of or waste on or to the Property or any portion of the Property.

Removal of Improvements. Except for demolition and constructiqn work contemplated by the Project Financing Agreement, Trustor shall not demolish or remove any Improvements from the Real Property without City's prior written consent. ·

City's Right to Enter. City and City''s agents and representatives may enter upon the Real Property at all reasonable times to attend to City's interests and to inspect the Real Property for purposes of Trustor's compliance with the terms and conditions of this Trust Deed.

Compliance with Governmental Requirements. Trustor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans with Disabilities Act and demolition and construction work contemplated by the Project Financing Agreement. Trustor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so

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long as Trustor has notified City in writing prior to doing so and so long as, in City's reasonable opinion, City's interests in the Property are not jeopardized.

Duty to Protect. Trustor agrees neither to abandon nor leave unattended the Property. Trustor shall do a11 other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property.

Construction. Construction of Private Improvements shall be completed in accordance with the provisions of the Project Financing Agreement.

DUE ON SALE - CONSENT BY CITY. City may, at City's option, declare immediately due and payable all sums secured by this Trust Deed upon the sale or transfer, without City's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A "sale" or '1ransfer" means the conveyance of Real Property or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contrac~ land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real Property. If any Trustor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than forty-ninepcrcent ( 49%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of such Trustor. However, this option shall not be exercised by City if such exercise is prohibited by applicable law.

TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Trust Deed:

Payment. Trustor shall pay when due (and in all events at least ten (10) days prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), fines and impositions levied against or on account of the Property, and shall, subject to Trustor's right to contest, pay when due all claims for work done on or for services rendered or material furnished to the Property. Trustor shall maintain the Property free of all liens having priority over or equal to the interest of City under this Trust Deed, except for the lien of taxes and assessments not due and except as otherwise provided in this Trust Deed.

Right to Contest. Trustor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as City's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Trustor shall within thirty (30) days after the lien arises or, if a lien is filed, within thirty (30) days after Trustor has notice of the filing, secure the discharge of the lien or otherwise defned such lien Evidence of Payment. Trustor shall upon demand furnish to City satisfactory evidence of payment of the taxes or assessments and shall authorize the

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appropriate governmental official to deliver to City at any time a written statement of the taxes and assessments against the Property.

PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Trust Deed.

Maintenance of Insurance. Trustor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a fair value basis for the full insurable value covering all Jmprovements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of City. Trustor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as City may reasonably request with trustee and City being named as additional insureds in such liability insurance policies. Additionally, Trustor shall maintain such other insurance, including but not limited to hazard, business interruption, course of construction and boiler insurance, as City may reasonably require. Notwithstanding the foregoing, in no event shall Trustor be required to provide hazard insurance in excess of the replacement value of the Improvements on the Real Property. Policies shall be written in form, amounts, coverages and basis reasonably acceptable to City and issued by a company or companies reasonably acceptable to City. Trustor, upon request of City, will deliver to City from time to time the policies or certificates of insurance in form satisfactory to City, including stipwations that coverages will not be cancelled or diminished without at least ten (10) days prior written notice to City. Each insurance policy also shall include an endorsement providing that coverage in favor of City will not be impaired in any way by any act, omission or default of Trustor or any other person.

Application of Proceeds. Trustor shall promptly notify City of any loss or damage to the Property if the estimated cost of repair or replacement exceeds $50,000.00. City may make proof of loss if Trustor fails to do so within fifteen (15) days of the casualty. If in City's sole judgment City's security interest in the Property has been impaired, City may at City's election, receive the proceeds of any insurance and apply such proceeds to restoration and repair of the Property. If the proceeds are to be applied to restoration and repair, Trustor shall repair or replace the damaged or destroyed Improvements in a manner reasonably satisfactory to City. City shall, upon satisfactory proof of such expenditure, pay . or reimburse Trustor from the proceeds for the reasonable cost of repair or restoration.

Unexpired Insurance at Sale. Any unexpired Insurance shall inure to the benefit of, and pass to, the purchaser of the Property covered by this Trust Deed at any trustee's sale or other sale held under the provisions of this Trust Deed, or at any foreclosure sale of such Property.

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Trustor's Report on Insurance. Upon request of City, however not more than once a year, Trustor shall furnish to City a report on each existing policy of Insurance showing: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; ( 4) the property insured, the then current replacement value of such property, and the manner of determining that value; and (5) the expiration date of the policy.

CITY'S EXPENDITURES. If any action or proceeding is commenced that would adversely and materially affect City's interest in the Property or if Trustor fails to discharge or pay when due any amounts Trustor is required to discharge or pay under this Trust Deed, City on Trustor's behalf may (but shall not be obligated to) take any action that City deems reasonably appropriate, including but not limited to discharging or paying all taxes, liens, secwity interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or. paid by City for such purposes shall be promptly repaid by Trustor.

WARRANTY; DEFENSE OF TI~LE. The following provisions relating to ownership of the Property are a part of this Trust Deed:

Title. Trustor warrants that: (a) Trustor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other that those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, City in connection with this Trust Deed, and (b) Trustor has the full right, power, and authority to execute and deliver this Trust Deed to City.

Defense of Title. Subject to the exception in the paragraph above, Trustor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Trustor's title or the interest of Trustee or City under this Trust Deed, Trustor shall defend the action at Trustor's expense. Trustor may be the nominal party in such proceeding, but City shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of City's own choice, and Trustor will deliver, or cause to be delivered, to City such instruments as City may request from time to time to permit such participation.

Complian£e With Laws. Trustor represents and warrants to City that Trustor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities.

Sunival of Representations and Warranties. All representations, warranties, and agreements made by Trustor in this Trust Deed shall survive the execution and delivery of this Trust Deed, shall be continuing in nature, and shall remain in full force and effect until such time as this Trust Deed is conveyed in full.

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SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Trust Deed as a security agreement are a part of this Trust Deed:

Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures or other personal property, and City shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time.

Security Interest. Upon request by City, Trustor shall execute financing statements and take whatever other action is requested by City to perfect and continue City's security interest in the Rents and Personal Property. Trustor shall reimburse City for all expenses incurred in perfecting or continuing this security interest. Upon default, Trustor shall assemble the Personal Property in a manner and at a place reasonably convenient to Trustor and City and make it available to City within three (3) days after receipt of written demand from City.

Addresses. The mailing addresses of Trustor and City from which information concerning the security interest granted by this Trust Deed may be obtained (each as required by the Unifonn Commercial Code) are as stated on the first page of this Trust Deed.

FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provtstons relating to further assurances and attorney-in-fact are a part ofthls Trust Deed:

Further Assurances. At any time, and from time to time, upon request of City, Trustor will make, execute and deliver, or will cause to be made, executed or delivered, to City or to City's designee, and when requested by City, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as City may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the reasonable opinion of City, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Trustor's obligations under this Trust Deed, and (2) the liens and security interests created by this Trust Deed as first and prior liens on the Property. Unless prohibited by law or City agrees to the contrary in writing, Trustor shall reimburse City for all costs and expenses incurred in connection with the matters referred to in this paragraph.

Attorney-in-Fact. If Trustor fails to do any of the things referred to in the preceding paragraph, City may do so for and in the name of Trustor and at

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Trustor's expense. For such purposes, Trustor hereby irrevocably appoints City as Trustor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in City's sole opinion, to accomplish the matters referred to in the preceding paragraph.

FULL PERFORMANCE. If Trustor completes Private Improvements and the Public Improvements in the manner provided in the Project Financing Agreement, City shall execute and deliver to Trustee a request for full reconveyance and shall execute and deliver to Trustor suitable statements of termination of any financing statement on file evidencing City's security interest in the Rents and the Personal Property.

EVENTS OF DEFAULT. Each of the following, at City's option, shall constitute an Event of Default wtder this Trust Deed:

Completion of Private Improvements Default. Trustor fails to complete the Private Improvements in accordance with Sections 2.B.6 and 2.B.l 0 of the Project Financing Agreement. With respect to any such default, Trustor shall have opportunity to cure rights as referenced in Section 3 .A. of the Project Financing Agreement.

Completion of the Public Improvements Default. Trustor fails to complete the Public Improvements in accordance with the Sections 2.B. 7 and 2.B.l 0 of the Project Financing Agreement. With respect to any such default, Trustor shall have the opportunity to cure rights as referenced in Section 3.A of the Project Financing Agreement. ·

Dissolution or Insolvency. The dissolution of Trustor, the termination of Trustor as a going business, the insolvency of Trustor, the appointment of a receiver for any part of Trustor's property, any assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or inSolvency laws by or against Trustor.

Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help; repossession or any other method, by any creditor of Trustor or by any governmental agency against the Property. This includes a garnishment of any of Trustor's accounts. However, this Event of Default shall not apply if there is a good faith dispute by Trustor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Trustor gives City written notice of the creditor or forfeiture proceeding and takes reasonable steps to contest and defend against any such claim.

Right to Cure. If any default described above under the caption "Dissolution or Insolvency" or under the caption "Creditor or Forfeiture Proceedings" is curable,

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it may be cured (and no Event of Default will have occurred) if Trustor, after City sends written notice demanding cure of such failure: (a) cures the failure within fifteen (15) days; or (b) if the cure requires more than fifteen (15) days, immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.

RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Trust Deed, at any time thereafter, Trustee or City may exercise any one or more of the following rights and remedies:

Election of Remedies. Election by City to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Trustor under this Trust Deed, after Trustor's fuilure to perform, shall not affect City's right to declare a default and exercise its remedies.

Foreclosure by Sale. Upon an Event of Default under this Trust Deed, Beneficiary may declare the then balance due under this Trust Deed, calculated as provided in Sections 2.B.6, 2.B.7, and 2.B.l0 of the Project Financing Agreement, to be immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold the Property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Trust Deed and a statement as to the balance due under this Trust Deed, calculated as provided in Section 2.B.l 0 of the Project Financing Agreement. After the lapse of such time as may then be required by law following the recordation of the notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell the Property at the time and place fixed by it in the notice of sale, either as a whole or in separate parcels, and in such order as it may determine at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of the Property to public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement in accordance with applicable law. Trustee shall deliver to such purchaser its deed conveying the Property so sold, but without any covenant or warranty, express or implied. "lbe recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereo£ Any person, including Trustor, Trustee or Beneficiary may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: the balance due under this Trust Deed, calculated as provided in Section 2.B.l 0 of the Project Financing Agreement, without any interest accumulation thereon, and the remainder, if any, to the person or persons legally entitled thereto.

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Judicial Foreclosure. With respect to all or any part of the Real Property, City shall have the right in lieu of foreclosure by power of sale to foreclose by judicial foreclosure in accordance with and to the full extent provided by California law; provided, however, Trustor shall have no personal liability for any amounts due under this Trust Deed, and City specifically \Vaives the right to assert or claim any right to such personal liability.

UCC Remedies. With respect to all or any part of the Personal Property, City shall have all the rights and remedies of a secured party under the Unifonn Commercial Code, including without limitation the right to recover any deficiency in the manner and to the full extent provided by California Law.

CoUect Rents. City shall have the right, without notice to Trustor to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above City's costs, against the balance due under this Trust Deed, calculated as provided in Section 2.B.l 0 of the Project Financing Agreement. In furtherance of this right, City may require any tenant or other user of the Property to make payments of rent or use fees directly to City. If the Rents are collected by City, then Trustor irrevocably designates City as Trustor's attorney-in-fact to endorse instruments received in payment thereof in the name of Trustor and to negotiate the same and collect the proceeds. Payments by tenants or other users to City in response to City's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. City may exercise its rights under this subparagraph either in person, by agent, or through a receiver.

Appoint Receiver. City shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the costs of the receivership, against the balance due under this Trust Deed, calculated as provided in Section 2.8.1 0 of the Project Financing Agreement The receiver may serve without bond if permitted by law. City's right to the appoinbnent of a receiver shall exist whether or not the apparent value of the Property exceeds the balance due under this Trust Deed, calculated as provided in Section 2.8.1 0 of the Project Financing Agreement, by a substantial amount. Employment by City shall not disqualify a person from serving as a receiver.

Tenancy at Sufferance. If Trustor remains in possession of the Property after the Property is sold as provided above or City otherwise becomes entitled to possession of the Property upon default of Trustor, Trustor shall become a tenant at sufferance of City or the purchase of the Property and shall, at City's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of the City.

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Other Remedies. Trustee or City shall have any other right or remedy, if any, provided in this Trust Deed and the Project Financing Agreement.

Notice of Sale. City shaH give Trustor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least fifteen ( 15) days before the time of the sale or disposition. Any sale of Personal Property may be made in conjunction with any sale of the Real Property.

Sale of the Property. To the extent pennitted by applicable law, Trustor hereby waives any and all rights to have the Property marshaled. In exercising its rights and remedies, the Trustee or City shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. City shall be entitled to bid at any public sale on all or any portion of the Property.

Attorneys' Fees; Expenses. If City institutes any suit or action to enforce any of the tenns of this Trust Deed, City shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses City incurs that in City's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the indebtedness and be added to the balance due under this Trust Deed, calculated as provided in Section 2.B.l 0 of the Project Financing Agreement. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, City's attorneys' fees and City's · legal expenses, whether or not there is a lawsuit, appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Trustor also will pay any court costs, in addition to all other sums provided by law.

Rights of Trustee. Trustee shall have all of the rights and duties of City as set forth in this section.

POWERS AND OBLIGATONS OF TRUSTEE. The following provisions relating to the powers and obligations of Trustee are part of this Trust Deed:

Powers of Trustee. In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following actions with respect to the Property upon the written request of City and Trustor: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; (b) join in granting any assessment or creating any r~striction on the Real Property; and (c) join in any subordination or other agreement affecting this Trust Deed or the interest of City under this Trust Deed.

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Obligations to Notify. Trustee shall not be obligated to notify any other party of a pending sale under any other trust deed or lien, or of any action or proceeding in which Trustor, City, or Trustee shall be a party, unless the action or proceeding is brought by Trustee.

Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all of any part of the Property, the Trustee shall have the right to foreclose by notice and sale, and City shall have the right to foreclose by judicial foreclosw-e, in either case in accordance with and to the full extent provided by applicable law.

Successor Trustee. City, at City's option, may from time to time appoint a successor Trustee to any Trustee appointed under this Trust Deed by an instrument executed and acknowledged by City and recorded in the office of the recorder of Riverside County, State of California The instrwnent shall contain, in addition to all other matters required by state law, the names of the original City, Trustee, and Trustor, the book and page where this Trust Deed is recorded, and the name and address of the successor trustee, and the instrument shall be executed and acknowledged by City or its successors in interest. The successor trustee, without conveyance of the Property, shall succeed to all the title, power, and duties conferred upon the Trustee in this Trust Deed and by applicable law. This procedme for substitution of Trustee shall govern to the exclusion of all other provisions for substitution.

Acceptance by Trustee. Trustee accepts this Trust when this Trust Deed, duly executed and acknowledged, is made a public record as provided by law.

NOTICES. Any notice required to be given under this Trust Deed shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law) when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Trust Deed. Trustor requests that copies of any notices of default and sale be directed to Trustor's address shown near the beginning of this Trust Deed. All copies of notices of foreclosure from the holder of any lien which has priority over this Trust Deed shall be sent to City's address as shown near the beginning of this Trust Deed. Any party may change its address for notices under this Trust Deed by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Trustor agrees ·to keep City informed at all times of Trustor's current address. Unless otherwise provided or required by law, if there is more than one Trustor, any notice given by City to any Trustor is deemed to be notice given to all Trustors.

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STATEMENT OF OBLIGATION FEE. City may collect a fee, not to exceed the maximum amount pennitted by law, for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of California.

N.DSCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Trust Deed:

Amendments. This Trust Deed, together with the Project Financing Agreement, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Trust Deed No alteration of or amendment to this Trust Deed shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment

Caption Headings. Caption headings in this Trust Deed are for convenience purposes only and are not to be used to interpret or define the provisions of this Trust Deed.

Merger. There shall be no merger of the interest or estate created by this Trust Deed with any other interest or estate in the Property at any time held by or for the benefit of City in any capacity, without the written consent of City.

Governing Law. This Trust Deed will be governed by, construed and enforced in accordance with federal law and the laws of the State of California. Thls Trust Deed has been accepted by City in the State of California

No Waiver by City. City shall not be deemed to have waived any rights under this Trust Deed unless such waiver is given in writing and signed by City. No delay or omission on the part of City in exercising any right shall operate as a waiver of such right or any other right. A waiver by City of a provision of this Trust Deed shall not prejudice or constitute a waiver of City's right otherwise to demand strict compliance with that provision or any other provision of this Trust Deed. No prior waiver by City, nor any course of dealing between City and Trustor, shall constitute a waiver of any of City's rights or of any of Trustor's obligations as to any future transactions. Whenever the consent of City is required under this Trust Deed, the granting of such consent by City in any instance shall not be unreasonably withheld, but also shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of City.

Severability. If a court of competent jurisdiction finds any provision of this Trust Deed to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending

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provision cannot be so modified, it shall be considered deleted from this Trust Deed. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Trust Deed shall not affect the legality, validity or enforceability of any other provision of this Trust Deed.

Successors and Assigns. Subject to any limitations stated in this Trust Deed on transfer of Trustor's interest, this Trust Deed shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownershlp of the Property becomes vested in a person other than Trustor, City, without notice to Trustor, may deal with Trustor's successors with reference to this Trust Deed and the indebtedness by way of forbearance or extension without releasing Trustor from the obligations of this Trust Deed or liability under the indebtedness.

Time is of the Essence. Time is of the essence in the performance of this Trust Deed.

Waive Jury. All parties to this Trust Deed hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by any party against any other party.

DEFINITIONS. As noted above, the Project Financing Agreement is incorporated herein by reference as though set forth in full and all defined tenns therein shall, except to the extent, if any, otherwise specifically indicated, have the same meanings herein. In addition, the following capitalized words and terms shall have the following meanings when used in this Trust Deed. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Trust Deed shall have the meanings attributed to such terms in the Uniform Commercial Code:

Beneficiary. The word "Beneficiary" means the City of Palm Springs, a municipal corporation and charter city, and its successors and assigns.

Default The word "Default" means a Default as set forth in this Trust Deed in the section titled "Events of Default."

Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1080', et seq., the Resource

14

118

Conservation and Recovery Act, 42 U.S.C. Section 6901, ct seq., Chapters 6.5 through 7. 7 of Division 20 of the California Health and Safety Code, Section 25100, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto.

Event of Default. The words "Event of Default" mean any of the Events of Default set forth in this Trust Deed in the Events of Default section of this Trust Deed.

Hazardous Substances. The words "HaZardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos.

Improvements. The word "improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and/other construction on the Real Property. ("Private Improvements,, are defined below.)

City. The word "City" means the City of Palm Springs, a municipal corporation and charter city, and its successors and assigns.

Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Trustor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of: and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. The words "Personal Property'' also include all tangible and intangible items obtained or owned by, or in the possession of Trustor that are directly or indirectly related to the acquisition, development, design, construction, permitting, marketing, or habitation of the Real Property or the improvements to be constructed on the Real Property, whether heretofore or hereafter issued, prepared, or executed, including without limitation all pennits, licenses, authorizations, allocations and other rights or approvals relating to or authorizing the development or occupancy of the Property, plus all utility or other deposits, reimbursement rights, studies, tests, contracts, plans and specifications, relating to the Property and improvements.

15

119

Private Improvements. The words "Private Improvements" shall have the meaning as set forth in the Project Financing Agreement.

Property. The word "Property" means collectively the Real Property and the Personal Property.

Public Improvements. The words ''Public Improvements" shall have the meaning as set forth in the Project Financing Agreement.

Real Property •. The words "Real Property" mean the real property, interests and rights, as further described in this Trust Deed.

Rents. The word "Rents" means all present and future leases, rents, revenues, income, issues, royalties, profits and other benefits derived from the Property together with the cash proceeds of the Rents.

Trust Deed. The words "Trust Deed" means this Trust Deed among Trustor, City, and Trustee, and includes without limitation all assignment and security intere~i provisions relating to the Personal Property and Rents.

Trustee. The word "Trustee" means Fidelity National Title Company, a California co1p0ration.

Trustor. The word "Trustor" means Palm Springs Promenade, LLC, a California limited liability company.

TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF TIDS DEED OF TRUST.

TRUSTOR:

atle:~¢~ ~ Dated: ~ V2.__

16

120

CALIFORNIA ALL-PURPOSE ACKNOWLE_Q~~MENT.

STATE OF California )SS

COUNTY OF R\'-\~"\de...... ) On~\.)(\"<., '(}.5 aD\~ before me, C. Jill Hernandez

r 3 t:>hn \l)eSSD"Ct(\

, 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{les), 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.

This area for official notarial seal.

OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER

Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the documents.

D INDIVIDUAL

D coRPORATE OFFICER(S) mLE(S)

D PARTNER(S) D UMITED

D ATIORNEY-IN-FACT

D TRUSTEE(S)

D GUARDIAN/CONSERVATOR

D OTHER

SIGNER IS REPRESENTING:

Name of Person or Entity

D GENERAL

Name of Person or Entity

OPTIONAL SECTION

Though the data requested here Is not required by law, it could prevent fraudulent reattachment of this form.

THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW

IDLE OR TYPE OF DOCUMENT: \i\~~LR.... bo ~ t>-f \\\..>ST NUMBER OF PAGES DATE OF DOCUMENT

--------------- ----------------------------------SIGNER(S) OTHER THAN NAMED ABOVE

Repoduced by FirSt American Title Company J 1/2007

121

CERT~CATEOFACKNOWLEDGMENT

STATE OF CALIFORNIA )

COUNTY OF RIVERSIDE ) ss )

On 2011 before me ------------------~ -----------------------personally appeared , personaDy

known to me. to be the person(s) whose name is. subscribed to the within instrument and acknowledged to me that he exeeuted the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted executed the instrument.

Witness my hand and official seal,

Signature __ ...__ ________________ _

(DO NOT RECORD) REQUEST FOR FULL RECONVEYANCE

(To be used only when obligations have been paid in full)

To: , Trustee --------------------------The undersigned is the legal owner and holder of aU sums secured by this Trust

· Deed. AU sums secured by this Trust Deed have been fully paid and satisfied. You are hereby directed, upon payment to you of any sums owing to you under the terms of this Trust Deed or pursuant to any applicable statute, to reconvey, without warranty, to the parties designated by the terms of this Trust Deed, the estate now held by you under this Trust Deed. Please mail the reconveyance and Related Documents to:

Date: ---------

Palm Springs Promenade, llC 555 South Sunrise Way, Suite .200 Palm Springs, California 92264 Attn: John Wessman Telephone: {760) 325-3050 Facsimile: (760} 325-5848

Beneficiary:-------------By: _______________________ _ Iu: ________________________ ___

17

122

EXHIBIT "c''

TO


123

EXHIBIT "C-1"

PARCELl

ALL THAT PORTION OF PARCEL 3 AND PARCEL4 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 THROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRJVE AND TAHQUITZ CANYON WAY AS SHOWN ON SAID PARCEL MAP, THENCE NORTH 00°-08'-00" WEST ALONG THE CENTERLINE OF SAID NORTH PALM CANYON DRIVE, A DISTANCE OF 646.50 FEET; THENCE SOUTH 89°52'-00" WEST, A DISTANCE OF 40.00 FEET TO THE WEST LINE OF NORTH PALM CANYON DRIVE AND THE EAST LINE OF SAID PARCEL 3; THENCE NORTH 00°-08'-00" WEST ALONG SAID WEST LINE OF NORTH PALM CANYON DRIVE AND EAST LINE OF SAID PARCEL 3, A DISTANCE OF 41.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 276.08 FEET; THENCE NORTH 45°-08'-00" WEST A DISTANCE OF 11.3 I FEET; THENCE NORTH 00°-08'-00" WEST A DISTANCE OF 170.84 FEET TO THE NORTHWEST LINE OF SAID PARCEL 3; THE FOLLOWING EIGHT COURSES BEING ALONG THE NORTHWESTERLY, WEST, NORTH AND EAST LINES OF SAID PARCEL 3; THENCE NORTH 44°-52'-00u EAST, A DISTANCE OF 37.62 FEET; THENCE NORTH 00°-08'-00'' WEST, A DISTANCE OF 21.60 FEET; THENCE NORTH 89°-54'-13" EAST, A DISTANCE OF 176.28 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 1.47 FEET; THENCE NORTH 89°-55'-24" EAST, A DISTANCE OF 42.63 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 0.50 FEET; THENCE NORTH 89°-52'-00" EAST, A DISTANCE OF 38.57 FEET; THENCE SOUTH 00°-08'-00" EAST A DISTANCE OF 228.85 FEET TO THE TRUE POINT OF BEGINNING.

CONTAINING 63,654 SQ. FT./ 1.46 AC. MORE OR LESS

SEE EXHIBIT "C-2" FOR DEPICTION ATTACHED HERETO AND MADE A PART HEREIN.

PROVIDED HOWEVER, EXCEPTED AND RESERVED FROM THE FOREGOING THE FOLLOWING AIRSPACE:

ALL THAT PORTION OF PARCEL 3 AND PARCEL 4 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 THROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND TAHQUITZ CANYON WAY AS SHOWN ON SAID PARCEL MAP, THENCE NORTH 00°-08'-00" WEST ALONG THE CENTERLINE OF SAID NORTH PALM CANYON DRIVE, A DISTANCE OF 646.50 FEET; THENCE SOUTH 89°52'-00" WEST, A DISTANCE OF 40.00 FEET TO THE WEST LINE OF NORTH PALM CANYON DRIVE AND THE WEST LINE OF SAID PARCEL 3; THENCE NORTH 00°-08'-00" WEST ALONG SAID WEST LINE OF PALM CANYON DRIVE AND EAST LINE OF SAID PARCEL 3, A DISTANCE OF 59.47 FEET; THENCE SOUTH 89°-52'-00~' WEST A DISTANCE OF 11.49 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 74.50 FEET;

124

THENCE NORTH 00°-08'-00" \VEST, A DISTANCE OF 20.00 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 75.50 FEET; THENCE SOUTH 00°-08' -00" EAST, A DISTANCE OF 20.00 FEET; THENCE SOUTH 89°-52' -00" WEST, A DISTANCE OF I 04.00 FEET; THENCE NORTH 00°-08'-00" EAST, A DISTANCE OF 15.33 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 18.59 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 46.68 FEET; THENCE NORTH 89°-52'-00" EAST, A DISTANCE OF 19.53 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 106.79 FEET; THENCE NORTH 44°-52'-00" EAST, A DISTANCE OF 26.16 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 21.27 FEET; THENCE NORTH 89°-54'-13" EAST, A DISTANCE OF 218.22 FEET; THENCE NORTH 44°-52'-00" EAST, A DISTANCE OF 2.77 FEET; THENCE NORTH 89°-52'-00" EAST; A DISTANCE OF 24.38 FEET; THENCE SOUTH 00°-08'-00'' EAST, A DISTANCE OF 195.06 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 10.00 FEET; THENCE SOUTH 00°-08'-00" EAST, A DISTANCE OF 15.33 FEET TO THE TRUE POINT OF BEGINNING.

LOWER BOUNDARY LIMITS 451.00 FEET. UPPER BOUNDARY LIMITS 461.00 FEET

PREPARED BY SANBORN AlE, INC.

JOHN L. SANBORN PLS 4146 06113112 WO. 11-105

125

LB

UNE T~LE

PARCEL PM ~0326

PMB 13Jj'j081a-!f 513-Sf>O-

100 50 0 100 200

SCALE 1: 100' GRAPHIC SCALE

. EXHIBIT IIBU LEGAL DESCRIPTION:

S££ EXHIBIT "'C-1"'

·c-2"

PARCEL I 6~654 S.F.

1.46 AC.

8

toO (X)O

~~ NO

0 0 z

•

J TAHQUITZ CANYON WAY CIL, r

,- - - pQC/1 coom.rtt INTERSECllON f

PER ·P.M 20326

DESIGN BY: SCAl£: FILE NO.:

D. B. 1"' = 100~

CHECKED BY: W.O. I SHEET NO.: J.L.S. 11-105 1 OF 1

126

EXHIBIT "C-3"

PARCEL2

ALL 1HAT PORTION OF PARCEL 1, PARCEL 3 AND PARCEL 4 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 THROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, AND A PORTIONcOF NORTH PALM CANYON DRIVE AS VACATED BY THE CITY OF PALM SPRINGS BY RESOLUTION OF ABANDONMENT RECORDED NOVEMBER 19, 1991 AS INSTRUMENT NO. 400968. RIVERSIDE COUNTY RECORDS, DESCR.IBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND TAHQIDTZ CANYON WAY AS SHOWN ON SAID PARCEL~' TIIENCE NORTH 00°-08' -00" WEST ALONG THE CENTERLINE OF SAID NORTH PALM CANYON DRIVE, A DISTANCE OF 367.89 FEET; THENCE SOUTH S9~-52'-00" WEST, A DISTANCE OF 40.00 FEET TO THE WEST LINE OF NORTH PALM CANYON DRIVE; TI-lENCE NORTH 00°-08' -00" WEST ALONG SAID WEST LINE OF NOR1H PALM CANYON DRIVE, A DISTANCE OF 41.00 .FEET TO THE TRUE POINT OF BEGINNING; TIIENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 265.65 FEET; TIIENCE NORTH 45°-08'-00" WEST, A DISTANCE OF 2~.07 FEET; THENCE NORTH ooo -08'-00" WEST, A DISTANCE OF 211.18 FEET; THENCE NORTH 44°-52'-00" EAST, A DISTANCE OF 11.31 FEET; THENCE NORTH 89°-52'-00" EAST, A DISTANCE OF 276.08 FEET TO THE WEST LINE OF SAID NORTH PALM CANYON DRIVE; THENCE SOUTH 00°-08,-00" EAST ALONG SAID WESTLINE, A DISTANCE OF 237.61 FEET TO 1HE POINT OF BEGINNING.

CONTAINING 67,298 SQ. FT J 1.54 AC. MORE OR LESS

SEE EXIllBIT "C-4" FOR DEPICTION A TI ACHED HERETO AND MADE A PART HEREIN.


JOHN L. SANBORN PLS 4146 06/13/12 WO.ll-105

127

I I

~ EXH/BtT ·c-4" r----------.

I PARCEL i ; <lj :... I I"_"_IVI / J. l/M -...:.::

-----+: _ PMB .1.1:'':-/Bt-85 _ _).__ pARCEL ~r-- I 51J~5t0-004 I ·

PM ~0326Cl ~~"L4 N89jj0 52100"E 276.08' !1: PMB 133/81~0-~ ~ I

513-560-0 ~ ;;;: ~------ 1 (I ---. _!>' ~- l_ -J{ s:

"---- = PARCEL 2 :~ b PARr'C"I ,.>~ 9 ~ 67,298 S.F. !«>· 9 I

1'12 v~t.. ,• 1 00 · • 1.54 AC. j~ ~ PM 20326 f o

0:: · ~· •• 1~ 0

PMB 133/81-85 .i g ~ RC[;.." i o STJ-560-002 ! z pf. t "2.26 c.: z

I ~ 2~/B''~ l I

-- {~ P a 13~o---O i ".... ) I p~5t3... i i;POB

______ '_-J __ __., L}.. 265.65' I ~

------ --+-- ___ N89°52'00"E . ..--6. I ---r-::r L1 - - - -

I

UNE TABLE I BEARJNG LENGlH

L1 N89° 52"oo·E 40.00' IL2 N00°oa•oo·w 41.00' l3 N45 ooa·oo·w 26.07' I

l4 N44° 52'oo·E 11.31' -

-

' i ~

' CA' -.t '

TrAHQU/TZ CANYON WAY ~T c~ lNTERSECllON

PER PM 20326

~Eo~o==~so~~o~======~1o~o~~~~200-scALE 1: 1oo'

GRAPHIC SCALE

EXHIBIT "8" : LEGAL DESCR1PTION:

SE£ EXHIBIT "C-3"

DESIGN BY: D.B.

CHECKED BY: J.L.S.

SCALE: RL£ NO.: , ... = 100' -

W.O. I SHEET NO.: 11-105 1 OF 1

128

. EXHIBIT "C-5"

PARCEL3 . . ...

ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 20326 AS FILED [N PARCEL MAP BOOK 133 AT PAGES 81 WROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS AND A .PORTION OF NORTH PALM CANYON DRIVE AS VACATED BY THE CITY OF PALM SPRINGS BY RESOLUTION OF ABANDONMENf RECORDED NOVEMBER 19, 1991 AS INSTRUMENT NO. 400968. RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COJMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND TAHQUITZ CANYON WAY AS SHOWN ON SAID PARCEL-MAP, THENCE SOUTH 89°-50'-25" WEST ALONG THE CENTERLINE OF SAID TAHQUITZ CANYON WAY, A DISTANCE OF 324.08 FEET; . THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 44.00 FEET TO THE NORTH LINE OF SAIDTAHQUITZCANYON WAY AND THE SOUTH LINE OF SAID PARCEL 1 AND THE TRUE POINT OF BEGINNING; TIIENCE NORTH 00°-08' . .(}{)'' WEST, A DISTANCE OF 305.61 FEET; TIIENCENORTI-144°-52'-00" EAST, A DISTANCE OF 26.07 FEET; THENCE NOR Til 89°-52'-00" EAST, A DISTANCE OF 265.65 FEET TO THE WESTERLY LINE OF SAID NORTH PALMCANYON DRIVE, THE FOLLOWING FOUR COURSES BEING ALONG SAID WEST LINE OF NORni PALM CANYON DRIVE; TIIENCE SOU1H 00°-08'-00"EAST, A DISTANCE OF I 12.44 FEET; THENCE SOUTH 11°-17'-39'' WEST, A DISTANCE OF 45.43 FEET; THENCE SOUTH 00°-08'-00"EAST, A DISTANCE OF 141.97 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 25.00FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE TIIR.OUGH A CENTRAL ANGLE OF 89°-58'-25" AND A LENGTH OF 39.26 FEET TO THE NORTH LINE OF SAID TAHQUITZ CANYONWAY ANDSOUTHLINEOFSAIDPARCEL I; THENCE SOUTH 89°-50' -25" WEST, ALONG SAID NORTH LINE OFT AHQUITZ CANYON WAY A DISTANCE-OF 250.09 FEET TO THE TRUE POINT OF BEGINNING.


SEE EXHIBIT "C-6" FOR DEPICTION A IT ACHED HERETO AND MADE APART HEREIN.


JOHN L. SANBORN PLS 4146 06/13/12 wo. 11-105

129

! 2 EL · ! ! PM 20326 i ' PMB 133/81-85 :,! i 513-560-002 \. ,,-----------...,, ' ''·,, /' ,, '· ,, ,, )

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·EXHIBIT "C~6"

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N89°52'00"E 265.65

PARCEL 3 9~029 S.F.

2.07 AC.

250.09'

I "'

~· v ------- CIL3 _ _J!r:- N89°Sq:25"E 324.Q8' v -~

TAHOUTZI CANYON WAy COOJ3U.E INTEI~EJg('' I PER PM 20326

EXHIBIT "Bn LEGAL DESCRIP710N:

SEE EXHIBIT -c-s•

100 50 0 100


DESIGN BY: SCAJ£: 0.8. 1,. = 100'

TANGENT 24.99"

200

FILE NO.:

a-JECKED BY: W.O. I SHEET NO.: J.L.S. 11-105 1 OF 1

130

EXHIBIT "C-7"

PARCEL 4

ALL THAT PORTION OF PARCEL I OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 THROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND T AHQUITZ CANYON WAY AS SHOWN ON SAID PARCEL MAP, THENCE SOUTH 89° -50' -25" WEST ALONG THE CENTERLINE OF SAID T AHQUITZ CANYON WAY, A DISTANCE OF 324.08 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 44.00 FEET TO THE NORTH LINE OF SAID TAHQUITZCANYON WAY AND THE SOUTH LINE OF SAID PARCEL I; THENCE SOUTH 89°50'-25" WEST ALONG SAID SOUTH LINE, A DISTANCE OF 41.00 TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00°-08'-00'' WEST A DISTANCE OF 208.40 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 127.38 FEET; THENCE SOUTH 00°-08'-00"EAST, A DISTANCE OF 113.27 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 24.79 FEET; THENCE SOUTH 00°-08'-00"EAST, A DISTANCE OF 95.47 FEET TO THE SOUTH LINE OF SAID PARCEL 1; THENCE NORTH 89°-50'-25" EAST ALONG SAID SOUTH LINE, A DISTANCE OF 152.17 FEET TO THE TRUE POINT OF BEGINNING.

CONT ANING 28,949 S.F .I 0.66 AC.

SEE EXHIBIT "C-8" FOR DEPICTION ATTACHED HERETO AND MADE A PART HEREIN.


ALL THAT PORTION OF PARCEL I OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 THROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND TAHQUITZ CANYON WAY AS SHOWN ON SAID PARCEL MAP, THENCE SOUTH 89° -50' -25" WEST ALONG THE CENTERLINE OF SAID T AHQUITZ CANYON WAY, A DISTANCE OF 324.08 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 44.00 FEET TO THE NORTH LINE OF SAID T AHQUITZ CANYON WAY AND THE SOUTH LINE OF SAID PARCEL 1; THENCE SOUTH 89°-50' -25" WEST ALONG SAID COMMON LINE, A DISTANCE OF 41.00 FEET;

131

THENCE NORTH 00°-08'-00" WEST A DISTANCE OF 8.67 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUfNG NORTH 00°-08'-00H WEST, A DISTANCE OF 200.00 FEET; THENCE SOUTH 89°-52' -00" WEST, A DISTANCE OF 127.38 FEET; THENCE SOUTH 00°-08'-00"EAST, A DISTANCE OF 113.27 FEET; THENCE SOUTH 89°-52'-00'' WEST, A DISTANCE OF 24.79 FEET; THENCE SOUTH 00°-08'-00"EAST, A DISTANCE OF 86.81 FEET; THENCE NORTH 89°-52'-00" EAST, A DISTANCE OF 152.17 FEET TO THE TRUE POINT OF BEGfNNING.

LOWER BOUNDARY 443.20 FEET. UPPER BOUNDARY 454.20 FEET



132

PARCEL "2

PM 20326 l PMB 133/81-85 i i stJ-S6o-oo2 I ! ,-'--------. l "'\.. ,,' ' 1 ', ,'' ", ,,,~

v . \. .. /

EXHIBIT -c-8#

---- - - - - - _.l_ I I

i

I ~ l i: ! Q

i ~ I );;. : ~ I ;: ! 1 (j

I ~

N89° 52'00"E 1

3: - 127:-38---,~ l tReE\.. b · P 03z6~ ~ ~ ~' jjlg~oaa 0. ~ ~ J ... 5

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0.- .. ~~ N89 52'00"E 0 0

24.79' z :5 g j i I

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~~PARCEL 4 8 0. • 28,949 S.F. z •

0 tO g Ol 0.66 AC. J z 152.17' 2

N89°50'25"E / I

___ CIL 3 p~ :q _ N89°50'25:E 324.08'

-- TAHQU/TZf CANYON WAY

L_ I poc;T-

EXHIBIT "BJf]l lEGAL DESCRIPTlON:

S££ EXHIBIT "'C-7"'

100 50

CENTERI.Jtt~ PER P.M 20026

UNE TABLE

0 100

SCALE 1:100' GRAPHIC SCALE

DE51GN BY: I SCALE: RLE NO.: D.B. I 1"' = 100'

200 ~

CHECKED BY: I W.O. I I SHEET NO.: J.L.S. 11-.105 1 OF 1

133

EXHIBIT "C-9"

PARCELS

ALL THATPORTIONOFPARCEL 1 OFPARCELMAPN0.20326AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 TIIROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED. AS FOLLOW.S; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DIUVE AND TAHQUITZ CANYON WAY. AS SHOWN ON SAID PARCEL MAP~ THENCE SOUTH 89° -50' -25" WEST ALONG THE CENTERLINE OF SAID TAHQUITZ CANYON WAY, A DISTANCE' OF 324.08 FEET; TIIENCE NOR Til 00°-08' ...()()"WEST, A DISTANCE OF 44.00 FEET TO TilE NORTH LINE OF SAID TAHQUITZ CANYON WAY AND THE SOUTH LINE OF SAID PARCEL 1; THENCE SOU1H 89°-50' -25" WEST ALONG SAID COMON LINE, A DISTANCE OF 4 J .00 FEET; . THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 208.40 FEET TO-THE TRUE POINT OF BEGlNNING; . THENCE CONTINUING NORTII 00°- 08'-0(t WEST, A DISTANCE OF 96.96 FEET; THENCE NORTH 45°-08'-00" WEST, A DISTANCE OF 26.07 FEET TIIENCE SOUTH 89°-52'-00'' WEST, A DISTANCE OF 159.06 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTIIEASTERL Y AND HAVING A RADIUS. OF 162.09 FEET; THENCE NORTHWESTERLY ALONG SAID. CURVE THROUGH A CENfRAL ANGLE OF 16°-41'-51" AND ALENGTII OF 47.24FEETTOTHEBEGINNINGOF A TANGENf REVERSE CURVE CONCAVE SOU1HWESTERL Y AND HAVING A RADIUS Of 201.47 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 13°-14'-05" AND A LENGTII OF 46.54 FEET; THENCE SOU1H 00°-()8'-00"EAST, A DISTANCE OF 13036 FEET; THENCE NOR1H 89°-52'-00" EAST, A DISTANCE OF 269.78 FEET TO THE TRUE POINT OF BEGINNING.


SEE EXHIBIT "C-10" FOR DEPICTION A IT ACHED HERETO AND MADE A PART HEREIN.


JOHN L. SANBORN PLS 4146 06/13/12 WO. 11-105

134

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If DELTA/BRG RADIUS LENGlH TANGENT IC1 1Ef 41'51'' 162-.09' 47.24' 23.79' C2 1J014'05" 201.4·7' 46.54' 23.37'

UNE TABLE 44.00' 41.00' 26.07

100 50 0 100 I

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FILE NO •• •

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200

J.LS. 11-105 1 OF 1

135

EXHIBIT "C-11" PARCEL6

ALL THAT PORTION OF PARCEL 3 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 THROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND TAHQUITZ CANYON WAY AS SHOWN ON SAID PARCEL MAP, THENCE NORTH 00°-08' -00" WEST ALONG THE CENTERLINE OF SAID NORTH PALM CANYON DRIVE, A DISTANCE OF 367.89 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 40.00 FEET TO THE WEST LINE OF NORTH PALM CANYON DRIVE; THENCE NORTH 00°...()8' -00" WEST ALONG SAID WEST LINE OF NORTH PALM CANYON DRiVE, A DISTANCE OF 41.00 FEET; THENCE SOUlll 89°-52'..00" WEST, A DISTANCE OF 265.65 FEET; 'IHENCE NORTH 45°-08' -00" WEST, A DISTANCE OF 26.07 FEET; THENCE SOUlH 89°-52'-00" WEST, A DISTANCE OF 41.00 FEET TO THE. TRUE POINT OF BEGINNING; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 162.23 FEET; TIIENCE SOUIH 89°-52'...()()" WEST, A DISTANCE OF 316.00 FEET THENCE SOUTH 00°-08'-00" EAST, A DISTANCE OF 174.20 FEET; TIIENCE NORTH 89°-52'..00" EAST, A DISTANCE OF 4636 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 164.19 FEET; . THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14°55'-04" AND ALENGTII OF 42.75 FEET; THENCE NORTH 89°-52'-00" EAST, A DISTANCE OF 210.07 FEET; THENCE NORTH 44°-52'-00" EAST, A DISTANCE OF 26.07 FEET TO Tiffi TRUE POINT OF BEGINNING.

CONT AlNING 56,450 SQ.FT J 1.30 AC. MORE OR LESS

SEE EXIDBIT "C-12" FOR DEPICTION AIT ACHED HERETO AND MADE A PART HEREIN.

PREPARED BY SANBORN AlE, fNC.

JOHN L. SANBORN PLS 4146 06/13/12 WO.ll-105

136

(

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.UNE TABLE j ~ lt1 N89°52'00•E 40.00' ! 49' 0.: L2 N00°0a'oo•w 41.00' : lt.3 N45 ooa·oo·w 2s.o/ j IL4 N89°52'00'"E 41.00' } LS N44° 52'00'1: 26 .. 07 ~ L6 N89° 52'00 .. E ~36' ~ - -CIL' - ""r -~

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J.L.S. 11-105 1 OF 1

137

EXHIBIT "C-13"

PARCEL7

ALL THAT PORTION OF PARCEL 3 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 THROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND TAHQUITZ CANYON WAY AS SHOWN ON SAID PARCEL MAP, THENCE NORTH 00°-08'-00" WEST ALONG THE CENTERLINE OF SAID NORTH PALM CANYON DRIVE, A DISTANCE OF 367.89 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 40.00 FEET TO THE WEST LINE OF NORTH PALM CANYON DRIVE; THENCE NORTH 00°-08'-00" WEST ALONG SAID WEST LINE OF NORTH PALM CANYON DRIVE, A DISTANCE OF 41.00 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 265.65 FEET; THENCE NORTH 45°-08'-00" WEST, A DISTANCE OF 26.07 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 41.00 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 162.23 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 00°-08'-00" WEST, A DISTANCE OF 179.27 FEET; THENCE NORTH 45°-08'-48'' WEST, A DISTANCE OF 11.31 FEET TO A POINT ON THE EASTERLY EXTENTION OF THE NORTH LINE OF SAID PARCEL 3; THENCE SOUTH 89°-50'-25 "WEST ALONG SAID EXTENTION AND THE NORTH LINE OF SAID PARCEL 3, A DISTANCE OF 94.02 FEET; THENCE SOUTH 00°-08'-00" EAST, A DISTANCE OF 187.23 FEET; THENCE NORTH 89°-52'-00" EAST, A DISTANCE OF 102.02 FEET TO THE POINT OF BEGINNING.

CONTAINING 19,071 SQ. FT./ 0.44 AC. MORE OR LESS

SEE EXHIBIT "C-14" FOR DEPICTION A IT ACHED HERETO AND MADE A PART HEREIN.


ALL THAT PORTION OF PARCEL 3 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 THROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND T AHQUITZ WAY AS SHOWN ON SAID PARCEL MAP, THENCE NORTH 00°-08'-00" WEST ALONG THE CENTERLINE OF SAID NORTH PALM CANYON DRIVE, A DISTANCE OF 367.89 FEET;

138

THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 40.00 FEET TO THE WEST LINE OF NORTH PALM CANYON DRIVE; THENCE NORTH 00°-08'-00" WEST ALONG SAID WEST LINE, A DISTANCE OF 41.00 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 265.65 FEET; THENCE NORTH 45°-08'-00" WEST, A DISTANCE OF 26.07 FEET; THENCE SOUTH 89°-52'-00" WEST, A DISTANCE OF 41.00 FEET; THENCE NORTH 00°-08'-00" WEST, A DISTANCE OF 180.45 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 00°-08'-00" WEST A DISTANCE OF 161.05 FEET; THENCE NORTH 45°-08'-47" WEST, A DISTANCE OF 7.06 FEET; THENCE SOUTH 44°-52'-00" WEST, A DISTANCE OF 8.22 FEET; THENCE SOUTH 89°-52'-00 \VEST, A DISTANCE OF 90.71 FEET; THENCE SOUTH 00°-08'-00" EAST, A DISTANCE OF 177.41 FEET; THENCE NORTH 89°-52' -00" EAST, A DISTANCE OF 71.65 FEET; THENCE NORTH 59°-53'-30" EAST, A DISTANCE OF 34.48 FEET TO THE POINT OF BEGINNING.

LOWER BOUNDARY 449.70 FEET. UPPER BOUNDARY 461.00 FEET.



139

EXHIBIT •c-14)

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CHECKED BY: I W. 0. I I SHEET NO.: J.L.S. 11-105 1 OF 1

140

EXHIBIT "C-15"

. LOT B AIR-SPACE

ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 TIIROUGH 85 INCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT THE CENTERLINE INTERSECTION OF NORTH PALM CANYON DRIVE AND TAHQUITZ CANYON WAY AS SHOWN ON SAID PAR~EL MAP, THENCE SOUTII 8~ -50' -25" WEST ALONG THE CENTERLINE OF SAID T AHQtnTZ CANYON WAY, A DISTANCE OF 324.08 FEET; THENCE NOR1H 000-08"-00" WEST, A DISTANCE OF 44.00 FEET TO THE NORTH LINE OF SAID T AHQUITZ CANYON WAY AND THE SOUTH LINE OF SAID PARCEL I THENCE CONTINUING NOR1H 00°-08'-00" WEST, A DISTANCE OF 7.60 FEET TO THE TRUE POINT OF BEGINNING; TI:fENCE SOUlH 89°-50'-25" WEST, A DISTANCE OF 4l.OOFEET; THENCE NOR1H 00°-08'-00" WEST, A DISTANCE OF 201.05 FEET; THENCE NORTH 89°-52'-00" EAST, A DISTANCE OF 31.00 FEET; THENCE NORTH 00°-08'-00, WEST, A DISTANCE OF 5.70 FEET; THENCE NORTH sgo-52'-00" EAST, A DISTANCE OF 10.00 FEET; THENCE SOUTH 00°-08'-00" EAST, A DISTANCE OF 206.75 FEET TO THE TRUE POINT OF BEGINNING.

SEE EXHIBIT "B" FOR VERTICAL LIMITS

SEE EXHIBIT "C-16" FOR DEPICTION ATIACHED HERETO AND MADE A PART HEREIN.

PREPARED BY ·SANBORN AlE, INC.

JOHN L. SANBORN PLS 4146 05108/12 WO.ll·l05

141

EXHIBIT "C-16" ----r------------------------------------1--f I --r- . -------------------~--~---- . i ---.,.-- ·oc£1.. ' 1

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CITY OF PALM SPRINGS PUBLIC WORKS & ENGINEERING

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AIR-SPACE LOT 8

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SCALE 1: 100, GRAPHIC SCALE

1" = 100'

SEE EXHIBIT "C-15N CHECKED BY: I W.O. # J.LS. 11-105

~0

1JATE

7987 P.LS.

1 OF 1

142

EXHIBIT "C-17"

LOTS C AIR-SPACE PARCEL 1

ALL TIIAT PORTION OF PARCEL 3 AND 4 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 TIIROUGH 851NCLUSIVE, RIVERSIDE COUNTY RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT 1HE CENTERLINE INTERSECI10N OF NORlH PALM CANYON DRIVE AND TAHQUITZ WAY AS SHOWN ON SAID PARCEL MAP, THENCE NOR Til 00°-08'-00" WEsT ALONG THE CENTERLINE OF SAID NOR1H PALM CANYON -DRIVE, A DISTANCE OF 367.89 FEET; niENCE SOtrm 89°-52'-00" WEST, A DISTANCE OF Ml.OO FEET TO Tim WEST LINE OF NORTH PALM CANYON DRIVE; TIIBNCE NORm 00°..08'-00" WEST ALONG SAID WEST LINE, A DISTANCE OF 41.00 FEET; THENCE CONTINUING SOliTH 89°-52'-00" WEST, A DISTANCE OF 265.65 FEET TO niB TIIENCE NOR1H 45°-08'-00" WEST, A DISTANCE OF 26.07 FEET; TIIENCE SOU1H 89°·52'..00" WEST, A DISTANCE OF 41.00 FEET; TI:IENCE NORlH 00°..08'-00" WEST, A DISTANCE OF 341.50 FEET TO THE TRUE POINT OF BEGINNING; TIIENCE NORTII 4S0.08'-4T' WEST, A DISTANCE OF 7JJ6 FEET; niENCE NOR1H 44°-52' ..00" EAST, A DISTANCE OF 65.04 FEET; THENCE SOUTII 00°.08'-00" EAST, A DISTANCE OF 50.98 FEET' THENCE SOUTII 89°-52'-00, WEST, A DISTANCE OF 41.00 FEET TO 11:IE TRUE POINT OF BEGINNING;

LOWER BOUNDARY 453.00 FEET. UPPET BOUNDARY 463.00 FEET. ALSO SEE EXHIBIT "B" FOR VERTICAL LIIvfiTS.

LOTS C AND D AIR-SPACE PARCEL 2

ALL THAT PORTION OF PARCEL 3 AND 4 OF PARCEL MAP NO. 20326 AS FILED IN PARCEL MAP BOOK 133 AT PAGES 81 TIIROUGH 85 INCLUSIVE, RNERSIDE COUN1Y RECORDS, DESCRIBED AS FOLLOWS; COMMENCING AT 1HE CENfERLINE INTERSECI10N OF NORm PALM CANYON DRIVE AND T AHQUITZ WAY AS SHOWN ON SAID PARCEL MAP, THENCE NOR1H 00°-08'-00, WEST ALONG niB CENTERLINE OF SAID NORTII PALM CANYON D~ A DISTANCE OF 367.89 FEET; 11IENCE SOUTH 89°-52~~00" WEST, A DISTANCE OF 40.00 FEET TO THE WEST LINE OF NORTH PALM CANYON DRIVE; 1HENCE NOR1H 00°-08'..00" WEST ALONG SAID WEST LINE, A DISTANCE OF 41.00 FEET; THENCE CONTINUING sourn 89°-52'-00'' WEST, A DISTANCE OF 265.65 FEET TO THE TIIENCE NORTII45°-08'-00" WEST, A DISTANCE OF 26.07 FEET; TIIBNCE SOUIH 89°-52'·00" WEST, A DISTANCE OF 41.00 FEET; TIIENCE NORTH 00°-08'-00n WEST, A DISTANCE OF 143.82 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUIN9 NOR Til 00°-08' -00" WEST A DISTANCE OF 77.24 FEET; THENCE NORTH 89°-52'-00" EAST A DISTANCE OF 73jg FEET; THENCE NORTH OOCJ~08'-00~ WEST A DISTANCE OF 6.50 FEET;

PAGEC-17

143

LOTS C AND D .Am-SPACE PARCEL 2, CONT:

THENCE NORTII 44°-52'-00" EAST A DISTANCE OF 14.44 FEET; THENCE NORlH 89°-52'-00" EAST A DISTANCE OF l55.50.FEET; THENCE SQU1H. 00°-08' -00" WEST A DISTANCE OF 41.00 FEET; THENCE SOU1H 89°-52'-00" WEST A DISTANCE OF 190.08 FEET; THENCESOUTH·44°-52'..00"WEST A DISTANCE OF 11.31 FEET; THENCE SOUTII 00°-08'-00" EAST A DISTANCE OF 60.20 FEET; 1HENCB SOum 8~-52' ..00" WEST A DISTANCE OF 28.60 FEET; '!HENCE SOUTII 59°-42' .00" WEST A DISTANCE OF 14.32 FEET TO TIIE TRUE POINT OF BEGINNlNG.

LOWER BOUNDARY 442.50 FEET. UPPER BOUNDARY 463.00 FEET. ALSO SEE EXHIBIT "B" FOR VERTICAL LIMITS

SEE EXHIBIT "C-19" FOR DEPECllON A 'IT ACHED HERETO AND MADE A PART HEREIN.


JOHN L. SANBORN PLS 4146 OS/08/12 wo. IJ.tos

PAGEC-18

144

EXHIBIT ·c-19" L1 N&9°52'00~ 40.00'

UNE TABLE

------

L2 Noo908'oo·w· 41.ott <" L3 N45908'oo·w 2s.or L4 N~9°52~0·E · 41.00' L5 N89°~2·oo·E 41.00' 1..6 N00°0B'OO"W 50. 98' 1 N~5.ooa'.47·w 7. oa·

l8 · N89°52'oo•E 73. ' L9 Nooooa'oo"w s.so· u . N44° 52'oo·E 14. 44' l11 NOOOOS'OQ•w 22.41' u ·Nooooa·oo·w 4t.oo' L1 N#~S2'0~tE 11.31' L1 N89°52'00"E 28.:60' L1 N59052'00"E 14.32'

go oa· ~ ~· · 13 N89° s"2'00"E h.~GnQit\"~~ J : I lu : ~~~ ~~~()" / ! ~

)t/R-SPACE~'?J'y f i ~ LOT k.&-D~ ,, -U 4o' Cl PARCEL 2 f ~ LOMR BOlN)ARY= 44250 I I E lfl9 BOI.IDARY= 463.00 I ~

: ~ (j

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100 200 TAH~Z CAf!YON W~Y CIL.~--+----1

SCALE 1:1001

GRAPHIC SCALE

CITY OF PALM SPRINGS PUBLIC WORKS & ENGINEERING

DEPARTMENT

AIR-SPACE LOTS C AND D LEGAL DESCRIPnON:

SEE EXHIBIT •c-17, C-18•

POC CEMTm..N: ~llON

PER PM 20326 APPROVED:

DATE

7987 ASST. DIRECTOR OF PUBUC WORKS/ P.LS. ASST. arr ENGINEER DESIGN e·r: SCALt: FILE NO.:

o.a. t" = too· a/ECKED BY: W.O. I SHEET NO.:

J.L.S. 11-105 1 OF 1

145

ATTACHMENT 3

146

RECORDING REQUESTED BY

AND WHEN RECORDED RETURN TO:

Palm Springs Promenade, LLC 555 S. Sunrise Way, Suite 200 Palm Springs, CA 92264

APN 513-560-043, 513-560-044, 513-560-045, 513-560-046, 513-560-047, 513-560-048, APN 513-560-052, 513-560-060,513-560-073, 513-560-074, 513-560-075,513-560-078, APN 513-560-079, 513-560-080

SUBSTITUTION OF TRUSTEE AND DEED OF FULL RECONVEYANCE

The undersigned, City of Palm Springs, a California charter city and municipal corporation, as the owner and holder of the Note secured by that certain Performance Trust Deed dated June 27, 2012, made by Palm Springs Promenade, LLC, a California limited liability company, as Trustor to Fidelity National Title Company, a California corporation as trustee for City of Palm Springs, a California charter city and municipal corporation, as beneficiary, which Performance Trust Deed was recorded on 06/27/2012, as Instrument No. 2012-0298857 of Official Records in the Office of the County Recorder of Riverside, California, hereby substitutes itself, City of Palm Springs, a municipal corporation and charter city, as Trustee in place of the current Trustee thereunder.

City of Palm Springs, a California charter city and municipal corporation, hereby accepts said appointment as trustee and under the above Performance Trust Deed, and as successor Trustee, and pursuant to the request of said owner and holder and in accordance with the provisions of said Deed of Trust, DOES HEREBY RECONVEY, WITHOUT WARRANTY, TO THE PERSON OR PERSONS LEGALLY ENTITLED THERETO, the estate as shown on Exhibit "A" attached hereto and made a part hereof, now held by it under said Performance Trust Deed.

IN WITNESS WHEREOF, City of Palm Springs, a California charter city and municipal corporation, as the owner and holder of the above described Note and beneficial interest, and as Successor Trustee, has caused this instrument to be executed, as to each respective interest.

[SIGNATURES ON NEXT PAGE]

147

Dated:---------

Attest:

Anthony Mejia, City Clerk

City of Palm Springs, a California charter city and municipal corporation


Approved as to form:


148

EXHIBIT "A"

That certain Real Property identified on Exhibit C to that certain Performance Trust Deed recorded on 06/27/2012, as Instrument No. 2012-0298857 of Official Records in the Office of the County Recorder of Riverside, California

149


SubjectUPDATE REGARDING RECRUITMENT EFFORTS FOR THE CITY’S BOARDS ANDCOMMISSIONS:RECOMMENDATION:

Consider waiving the procedures in Resolution No. 18804 Section 7(b), to allow for theCity Council as a whole, to participate in the screening and interview of applicants for theHistoric Site Preservation Board, Measure “J” Oversight Commission, and the PlanningCommission.

1.

Waive the procedures in Resolution No. 18804 Section 7(b) which provide for theMayor to select and participate in all subcommittees.

2.

Provide additional direction as appropriate.3.

Attachments5A Board & Commission Recruitment Update


DATE: November 28, 2018 NEW BUSINESS

SUBJECT: UPDATE REGARDING RECRUITMENT EFFORTS FOR THE CITY'S BOARDS AND COMMISSIONS


BY: Office of the City Clerk

SUMMARY

On November 14, 2018, Councilmember Kors requested an update regarding recruitment efforts for the City's Boards and Commissions.

RECOMMENDATION:

1. Consider waiving the procedures in Resolution No. 18804 Section 7(b), to allow for the City Council as a whole, to participate in the screening and interview of applicants for the Historic Site Preservation Board, Measure "J" Oversight Commission and the Planning Commission.

2. Waive the procedures in Resolution No. 18804 Section 7(b) which provide for the Mayor to select and participate in all subcommittees.

3. Provide additional direction as appropriate.

BACKGROUND:

Historically, the City Council has waived the procedures in Resolution No. 18804 to allow the City Council to select a two-member Ad Hoc City Council Subcommittees to interview and screen candidates for the City's Commissions and Boards, with the exception of the Measure "J" Oversight Commission, Historic Site Preservation Board, and the Planning Commission, which the City Council has interviewed candidates as a whole at an open and public meeting. Below is a listing of the subcommittees:

Administrative Appeals Board Middleton Roberts Airport Commission Middleton Moon Board of Appeals Holstege Moon Board of Library Trustees Holstege Middleton Human Rights Commission Holstege Kors Parks & Recreation Commission Holstege Middleton Public Arts Commission Moon Roberts Rent Review Commission Holstege Middleton Sustainability Commission Kors Roberts VillageFest Board Kors Moon ITEM No._S":_,_/f_, _

City Council Staff Report November 28, 2018-- Page 2 Update on Recruitment for Boards and Commissions

The Ad Hoc City Council Subcommittees interview and screen applicants, and make recommendations to the entire City Council; and members of Commissions and Boards are appointed by three affirmative votes of the City Council.

On June 6, 2018, the City Council unanimously agreed to defer taking action on appointments for Boards and Commissions where terms were set to expire on June 30, 2018. As part of the City's transition from at-large to district-based elections, the City engaged in a robust community outreach program, including the hiring of a diversity consultant, to ensure that underrepresented and underserved Palm Springs communities are aware, invited, and participate in community meetings and public hearings related to districting. As such, the City recognized that there was an opportunity to synergize its Boards and Commissions recruitment efforts with the districting community outreach program.

In June 2018, the City launched a public outreach program including the mailing of a public notice to all residents regarding the scheduled Community Engagement Forums and opportunities to apply for Boards and Commissions, English and Spanish radio announcements, bus shelter advertisements, website improvements, social media, and online and print media advertisements. In addition, DeAztlan Consulting canvassed minority-owned and frequented businesses to inform residents about the districting and recruitment efforts.

The CVRA Working Group, City Council Subcommittee on the CVRA (Kors/Middleton), and DeAztlan Consulting have attended, participated in, and/or coordinated the qelow list of Community Engagement Events, in which participants were encouraged to apply to serve on Boards and Commissions.

Date/2018 Location Meeting Type

July9 Convention Center Community Engagement Forum

July 10 James 0. Jessie Unity Center Community Engagement Forum

July 11 City Council Chamber Public Hearing

July 12 City Yard One-PS Community Engagement Event

July 12 Demuth Community Center Community Engagement Forum

Aug.28 James 0. Jessie Unity Center Map Drawing Workshop

Aug.29 Convention Center Map Drawing Workshop

Sept. 4 Main Street Meeting Business Community Engagement Event

Sept. 4 Katherine Finchy Elementary Spanish Language Community Engagement Event

Sept. 8 Four Seasons Community Engagement Event

Sept. 8 Demuth Community Center Filipino-American Community Engagement Event

Sept. 11 James 0. Jessie Unity Center Map Drawing Workshop

Sept. 27 Council Chamber Study Session/Community Engagement Forum

2

City Council Staff Report November 28, 2018 -- Page 3 Update on Recruitment for Boards and Commissions

In 2017, the City had 47 applications on file at the time of the annual recruitment process. In 2018, the City currently has 86 applications on file.

Board/Commission Vacancies ARRiicants Administrative Appeals Board 3 I 2* 4 Airport Commission 5 I 2* 10 Board of Appeals 3 I 0* 1 Board of Library Trustees 2 I 0* 3 Historic Site Preservation Board 2 I 1 * 4 Human Rights Commission 3 I 2* 11 Measure J Commission 4 I 0* 11 Parks & Recreation Commission 1 I 18 9 Personnel Board 0 I 0* 6 PlanninQ Commission 3 I 0* 13 Public Arts Commission 3 I 3* 5 Rent Review Commission 4 I 0* 2 Sustainability Commission 3 I 1 * 5 VillaQeFest Board 2 I 1 * 2

* Indicates the number of members eligible for re-appointment.

Recommendations of the CVRA Community Working Group

On September 27, 2018, the CVRA presented its recommendations related to increasing diversity on Palm Springs Boards and Commissions (Attachment 1). Among those recommendations is monitoring the City's progress on diversifying the Boards and Commissions on an annual basis, including identifying and tracking diversity measures/demographics.

Currently, the City collects no demographic information from applicants. If it is the City Council's desire to begin collecting demographic data on applicants and appointees, on a voluntary basis, it is recommended that the City Council determine which diversity measures should be tracked and assign the responsibility of annual reporting to the City Clerk's Office.

FISCAL IMPACT:

Attachment 1 - CVRA Working Group Recommendations on Boards and Commissions Attachment 2 - Resolution No. 18804

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Attachment 1

RECOMMENDATIONS FOR INCREASING DIVERSITY ON PALM SPRINGS BOARDS

AND COMMISSIONS

In order to truly represent the many interests of the City's residents, membership on the City's Boards and Commissions should reflect the diversity of the population. This will help build an applicant pool that will bring a range of perspectives and experiences needed to govern well. For this purpose, we should strive to increase diversity on Boards and Commissions to mirror the composition of Palm Springs residents. Therefore, the Working Group recommends the following:

Annual Survey of Demographic Markers

• Identify diversity measures including race/ethnicity, gender identity, age, sexual orientation, disability, full-time participation in the work force, and parents with children.

• Monitor the City's progress on diversifying the Boards and Commissions on an annual Basis. Assign responsibility for monitoring and reporting to the City Clerk and assign the Human Rights Commission the responsibility of oversight.

• Direct the City Clerk to file an annual report to the City Council to receive and file.

Additional Recommendations

• Community Outreach Develop and implement a recruitment program which increases outreach to the identified diversity measure groups.

• Citizen's Leadership Academy Establish an annual program to provide residents with a general overview of City operations, programs, and Boards and Commissions.

• Interviews Establish uniform interview questionnaires and allow candidates to prepare prior to interviews.

• Orientation and Training Develop an orientation and ongoing training program for Boards and Commissions, possible courses to include:

o Diversity and Inclusion o Subject-Matter Specific Trainings o Conflict Management o Communication and Interpersonal skills

• Evening Meetings Modify Board and Commission meeting times to the evenings to attract working-age candidates.

• Recognition Program Develop and implement an annual recognition program for Board and Commission members, such as outgoing commissioner plaques given at a City Council meeting or a recognition event.

• Consolidation Evaluate existing Boards and Commissions to consolidate overlapping jurisdictions or eliminate boards and commissions which no longer convene.

• Council Referrals Refer matters to Boards and Commissions rather than establish additional City Council Ad Hoc Subcommittees.

• Youth Liaison Establish a youth liaison on each Board and Commission.

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• Work-Force Representative Reserve one seat on each Board and Commission for someone who is an active participant in the workforce.

• Appointment Policy Create an appointment policy which does not rely solely on traditional measures of success or insider networks, but that recognizes unique perspectives, skills, and diverse backgrounds. In evaluating and appointing members to Boards and Commissions Council should actively work towards reflecting the full breadth and scope of the residents of Palm Springs. Council should endeavor with each new appointment to achieve a cross section of diverse communities in Palm Springs, as well as representation from within the new districts.

• Members with Children Create a welcoming environment for Board and Commission Members with children which includes allowing children at meetings when practicable. The need for daycare services is not only for members of Council and City staff as previously mentioned but also for members of the public serving the City.

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RESOLUTION NO. 18804

OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ESTABLISHING REQUISITES FOR CONSIDERATION OF APPOINTMENTS TO CITY BOARDS AND COMMISSION, AND PROCEDURES FOR MAKING APPOINTMENTS THERETO.

Attachment 2

BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, AS FOLLOWS:

Section 1.

Section 2.

Generally. (a) The City's boards and commissions perform a critical role in the governance of. the City and in the relationship between the City Council, the governmental organization, and the citizens of Palm Springs. The boards and commissions serve to assist in making policy, perform administrative functions, are a reservoir of experience and judgment, and assist in the twoway communications between the City and its citizens. To this end, it is the goal of the City Council that the process for recruiting board and commission members be as open as possible and designed to bring forward those persons best suited by interest, character, and experience to assist in these objectives, and who will at the same time represent the diverse interests in the community.

(b) Any reference herein to 11 Conunission" shall be deemed to apply to all boards, conunissions, or committees unless otherwise stated.

(c) This policy shall apply to boards, commissions, and committees established by ordinance, resolution, or other formal action of the City Council to the extent required by the Brown Act {Government Code Section 54950, gt ~}; and, insofar as is possible, it shall be followed in appointments to other such temporary advisory boards and committees that are otherwise established. The Mayor and City Council may, however, in making such appointments to temporary advisory boards and committees depart from these guidelines if permitted by the Brown Act.

(d) Nothing stated in this resolution is intended to diminish or derogate the prerogatives of the Mayor or of the City Council pertaining to appointments, as contained in Government Code Section 40605.

Criteria for Selection. follow the following commission members:

The City Council will policies in selecting

(a) Residents. All appointees shall be bonafide residents and registered voters of the City of Palm Springs.

{b) EXPerience/education. The Council is seeking applicants who demonstrate that by their background, experience, and education, they will be enthusiastic and knowledgeable commissioners who will exercise sound judgement.

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18804 Page 2

Section 3.

Section 4.

(c) Cultural diversity. Appointees should reflect the social, ethnic and cultural diversity of the connnunity.

(d) Attendance. Attendance at prior conunission meetings during the previous six (6) months will be an important indicator of the applicant's interest in the activities of the commission and will allow I the Council during the interview to determine the applicant's understanding of the function of the conunission

(e) Conflicts. Commissioners shall comply with appropriate provisions of law relative to disclosure of financial interests. It shall be the policy of the City Council not to appoint or approve appointment of any person to a commission who would have continually recurring conflicts of interest to the extent of impairing their effectiveness as a commissioner.

Schedule. It shall be the goal of the City Council to undertake the appointment process in accordance with this schedule. The availability of positions shall be noticed annually by March 1. At that time the Mayor shall appoint Council subcommittees for screening applications. Applications will be due by the end of March. The applications will be screened by mid-April and an interview schedule established. Interviews will then be conducted so that appointments can be made at the time of the City Council's second meeting in May. Appointees should attend all commission meetings after appointment as observers until they take office. Terms commence on July 1 or as soon thereafter as the commissioners are appointed and qualified.

Notice of Availability. (a) Pursuant to Government Code Section 54972, prior to December 31 each year, the City Clerk is hereby directed to prepare an Appointments List of all regular and ongoing commissions which are appointed by the legislative body which shall contain the information required in said section; the Library Center is hereby designated as the Library to receive the Appointment List required by Section 54973 of said Code. (Note: Established by Minute Order 8/12/92.)

(b) All efforts will be made to provide timely public information relative to vacancies prior to the time for appointment. To insure that members reflect a broad cross section of the community, a strategic recruitment shall be undertaken, at least annually, which may include, but not be limited to,

(1) Use of local consumer media such as radio, television, and newspaper;

(2} Preparation of flyers for distribution in the community; and through Community organizations and contact persons.

(c) Goverrunent Code Section 54974 provides that whenever an unscheduled vacancy occurs, a special vacancy notice shall be posted in the office of the

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R18804 Page 3

Section 5.

Section 6.

Section 7.

City Clerk, and as may otherwise be directed by the City Council, within twenty (20) days after the vacancy occurs; and that final appointment to fill , such vacancy shall not be made for at least ten· (10} working days after such posting. Notwithstanding such provisions, the Mayor and City Council shall endeavor to fill vacancies on City boards and commissions within forty-five (45) days from the date the vacancy occurs.

Any person desiring to be considered for appointment to any City commission, including incumbent commission members, shall complete an application stating the applicant's name, address, telephone number, the appointment desired, and any other pertinent facts on an application form to be provided by the City Clerk. No person may be appointed who has not timely submitted such an application.

Applicants may not apply for more than two conunissions, nor concurrently serve on more than one.

It shall be the policy of the City Council that the following basic procedures shall apply in making appointments to commissions created by the City Council:

(a) The application shall include, but not be limited to the following information:

(1} The number of commission meetings attended in the prior six (6} months;

(2) Outline the criteria for selection in Section 2 hereof.

(3) The applicant's experience and qualifications for the position.

(4) ~1e applicant's education.

(5) The applicant's ideas and goals for the commission.

(b) The Mayor shall appoint Council subcommittees, each consisting of the Mayor and one alternating Councilmember, to screen applications to determine qualified applicants.

(c) The City Clerk shall compile and distribute to the City Council a list of all nqualified applicants,. {as determined by the subconunittees}. Any Councilmember may add the name of one other person filing an application to the list by so infor.ming the City Clerk.

(d) The City Clerk shall schedule interviews with the full City Council of all finalists for a particular commission. The Chairperson of the particular commission, or the Chairperson's commissioner-designee, shall be invited to the interview.

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Rl8804 Page 4

Section 8.

Section 9.

(e} Councilmembers shall indicate their preference for selection, and the Mayor may take such preferences into consideration.

Appointments to conunissions shall be made at a regular, or adjourned regular meeting of the City Council.

Resolution No. 18020 previously establishing guidelines for Council appointments to boards and commissions is hereby superseded and repealed in its entirety.

ADOPTED this _3.;..;.r...;;d _____ day of __ A.._pr_1_l _________ , 1996.

AYES: Members Barnes, Hodges, Oden and Mayor Kleindienst NOES: None ABSENT: Member Spurgin

ATTEST: IFORNIA

BY~'C City Clerk

REVIEWED & APPROVED ____ -"k/.~.a...:t<_}.~·~~------------

PSl\276\014084-0001 \2189921.1 ~t03/28/96 -4-

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