CITY COUNCIL
AGENDA
Regular Meeting
Wednesday, March 8, 2023
5:30 PM
City Council Chambers
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
MAYOR
Rita Lamb
CITY COUNCIL MEMBERS
Mayor Pro Tem
Mark Carnevale
Councilmember
Nancy Ross
Councilmember
Raymond Gregory
Councilmember
Ernesto Gutierrez
• CALL TO ORDER
• PLEDGE OF ALLEGIANCE
• INVOCATION (MOMENT OF REFLECTION)
• ROLL CALL
• AGENDA FINALIZATION
At this time the City Council may announce any items being pulled from the agenda or continued to another date.
1. AGENDA ITEM
A. Joint Use Agreement with the Palm Springs Unified School District and Desert Recreation District for Operation of the Cathedral City High School Swimming Pool for Public Use During the Summer Months of 2023
Recommendation: To approve a joint use agreement for the use of the Cathedral City High School (CCHS) swimming pool for
public swim.
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2. PUBLIC COMMENT
This is the opportunity for members of the public to comment on any items not appearing on the regular agenda. Beca use of restrictions contained in California Law, the City Council may not discuss or act on any item not on the agenda but may briefly respond to statements made or ask a question for clarification. The Mayor may also request a brief response from staff to questions raised during public comment or may request a matter be agendized for a future meeting. Public Comment will be limited to three (3) minutes.
3. COUNCIL REPORTS
This is an opportunity for each member of the City Council to report on any conferences they attend, local events or make any other comments they may have.
4. CONSENT AGENDA
The following Consent Calendar items are expected to be routine and noncontroversial. They will be acted upon by the City Council at one time without discussion. Any Council Member, Staff Member, or Citizen may request removal of an item from the Consent Calendar for discussion.
A. Waive Full Reading of Ordinances on Agenda
B. Minutes Approval
1. City Council - Special Meeting - Jan 28, 2023 8:00 AM
2. City Council - Special Meeting - Feb 15, 2023 2:00 PM
3. City Council - Study Session - Feb 22, 2023 3:00 PM
4. City Council - Regular Meeting - Feb 22, 2023 5:30 PM
5. City Council - Special Meeting - Mar 1, 2023 2:00 PM
5. ITEMS PULLED FROM CONSENT
6. PUBLIC HEARINGS
7. LEGISLATIVE ACTIONS
A. Contract for Thousand Palms Annexation Fiscal Analysis Recommendation: To approve a contract with Terra Nova Planning & Research, Inc in an amount not to exceed $70,070, which reflects the base contract of $63,700 and a 10% contingency of $6,300, and authorize a budget amendment in the amount of $70,070.
B. Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects
Recommendation: To approve a contract with Petrochem Materials Innovation, LLC. for $1,038,633.92 to supply and apply Rubber
Emulsion Aggregate Slurry (REAS) on La Pasada
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Neighborhood streets, Avenida Maravilla, Avenida La Paz, Avenida La Vista, and Date Palm Drive, including traffic control, crack seal and striping replacement; and, approve a fifteen percent (15%) contingency in the amount of
$155,796.08 for unforeseeable construction costs, making the total encumbrance $1,194,430; and, authorize the City Manager to execute the required contract documents.
8. DISCUSSION ON FUTURE AGENDA ITEMS
This is an opportunity for members of the City Council to request that, and for the City Council to discuss whether, one or more items should be added to the agenda of a future regular or special City Council meeting. To comply with the Brown Act, discussion should be limited to whether to add the item(s), and direction given to the City Manager regarding scheduling and prioritization of the item(s).
9. CLOSED SESSION
ADJOURN
NOTES TO THE PUBLIC:
The City of Cathedral City complies with the Americans with Disabilities Act of 1990. If you require special assistance to participate in this meeting, please call the City Clerk’s Office at (760) 770-0322 at least 48 hours prior to the meeting.
If you desire to address the City Council during the meeting, please complete a Request to Speak Form available at the entrance and present it to the City Clerk. Speakers will be called upon at the appropriate time.
Any documents provided to a majority of the City Council regarding any item on this agenda w ill be made available for public inspection in the City Clerk’s office at City Hall located at 68 -700 Avenida Lalo Guerrero during normal business hours. In addition, such documents will be posted on the City’s website at www.cathedralcity.gov.
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Staff Report
City Council
Item No. 1.A
Meeting Date: March 8, 2023
From: Anne Ambrose, Assistant City Manager
Title: Joint Use Agreement with the Palm Springs Unified School District and Desert Recreation District for Operation of the Cathedral Ci ty High School Swimming Pool for Public Use During the Summer Months of 2023
City Council
RECOMMENDATION:
To approve a joint use agreement for the use of the Cathedral City High School (CCHS) swimming pool for public swim.
BACKGROUND:
On December 11, 2019, Council instructed staff to prepare agreements between the City of Cathedral City, the Palm Springs Unified School District (PSUSD), and the Desert Recreation District (DRD) for use and operation of the Cathedral City High School (CCHS) swimming pool. The three parties developed an agreement in 2022 and the pool operated for public use for the first time during the summer of 2022.
The City, PSUSD and DRD three -party agreement is being proposed for approval by the City Council this evening. The DRD Board will also be considering the agreement for approval tonight, and the PSUSD is pending Board of Education approval (anticipated to be approved on the March 14, 2023 Board of Education meeting).
DISCUSSION:
The Desert Recreation District will provide the following summer swim programs at the CCHS swimming pool:
• Community Swimming Lessons (Youth and Adult), • Open Recreational Swim,
• Team & Lap Swim,
• Summer Special Events (limited),
• Water Polo Programming,
• Get Hooked on Swimming, and
• Agua Fit Water Aerobics.
This agreement represents a three -way partnership where PSUSD will provide the facility, chemical, custodial, maintenance, and operational services of the CCHS
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swimming pool; and t he DRD administers the programming on behalf of the City. The proposed agreement includes the costs of utilities and staffing the CCHS swimming pool (during operating hours) with certified lifeguards and custodial staff.
Public use of the CCHS swimming pool is proposed from June 11, 2023 through August 5, 2023 (subject to CCHS athletic programs) and will be based on the following schedule:
Summer 2023 CCHS Pool Operating Schedule:
Monday – Saturday 6:00 a.m. to 12:30 p.m. & 1:30 p.m. to 4:00 p.m.
Sunday 6:00 a.m. to 7:00 p.m.
FISCAL IMPACT:
The proposed three -party agreement with PSUSD and DRD requires the City to pay PSUSD for the use and operation of the CCHS swimming pool and DRD for the program administration. The City’s not to exceed cost to the PSUSD is $57,540 for use of the facility and operational services provided at the CCHS pool. The City’s not to exceed cost to the DRD is $55,000 for program administration.
ATTACHMENTS:
Contract for Pool Use 2023
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NONEXCLUSIVE USE AND OPERATION AGREEMENT BETWEEN
PALM SPRINGS UNIFIED SCHOOL DISTRICT,
THE CITY OF CATHEDRAL CITY, AND
DESERT RECREATION DISTRICT
THIS NON-EXCLUSIVE USE AND OPERATION AGREEMENT (“Agreement”) is made and entered into as of the ___ day of March , 2023, by and between the Palm Springs Unified School District (“SCHOOL DISTRICT”), the City of Cathedral City, a Charter City, located in the County of Riverside, State of California ( “CITY”), and Desert Recreation District, a public recreation and park district (“ DESERT RECREATION DISTRICT”), with SCHOOL DISTRICT, CITY , and DESERT RECREATION DISTRICT sometimes hereinafter referred to individually as a “Party” or collectively as the “Parties,” with respect to the following:
RECITALS
WHEREAS, the SCHOOL DISTRICT is the owner of an Olympic size swimming pool and other associated facilities at Cathedral City High School ( “Premises”), located at 69250 Dinah Shore Drive, Cathedral City, California, 92234; and
WHEREAS, SCHOOL DISTRICT is responsible for the operations and activities associated with any use of the Premises and any of its invitees; and
WHEREAS, SCHOOL DISTRICT understands there are times when the Premises is not being used for SCHOOL DISTRICT activities; and
WHEREAS, CITY and DESERT RECREATION DISTRICT desire to use the Premises for programs, services and activities for the residents of Cathedral City and surrounding communities; and
WHEREAS, SCHOOL DISTRICT, DESERT RECREATION DISTRICT and CITY agree that allowing for outside use of the Premises will benefit members of the community of different ages; and
WHEREAS, the DESERT RECREATION DISTRICT in coordination with the SCHOOL DISTRICT and CITY, shall provide and operate recreation programs at the Premises.
Now therefore, in consideration of the covenants, conditions and promises contained herein, the Parties agree as follows:
Section 1. AGREEMENT RECITALS
The Recitals set forth above are hereby incorporated into this Agreement by this reference, as though fully set forth herein.
Section 2. CITY’S USE GRANT OF NONEXCLUSIVE RIGHT; USE SCHEDULE
a. Use Schedule. During the Term of this Agreement, t he SCHOOL DISTRICT hereby grants to CITY and DESERT RECREATION DISTRICT a revocable, nonexclusive right, privilege, and permission to enter onto and use the Premises in accordance with this Agreement Monday through Sunday between the hours of 6:00 a.m. and 7:00 p.m.. The SCHOOL DISTRICT Premises will be closed to the
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Attachment: Contract for Pool Use 2023 (3642 : Joint Use Agreement for Operation of the Cathedral City High School Swimming Pool)
public Monday through Saturday between the hours of 12:30 p.m. to 1:30 p.m. and 4:00 p.m. to 7:00 p.m. for SCHOOL DISTRICT use. In the event that the CITY and/or DESERT RECREATION DISTRICT plan to host a special event outside of the hours of operation, this request will be submitted in writing for approval by the SCHOOL DISTRICT.
b. Permitted Uses (“Permitted Use(s)”). The following are Permitted Uses:
• Community swimming lessons;
• Recreational swimming;
• Lap swimming;
• Team swimming;
• Water aerobics;
• Water polo programs; and
• Special Events, as approved by SCHOOL DISTRICT.
All times and dates shall be mutually agreed upon by Parties. CITY or DESERT RECREATION DISTRICT shall notify the SCHOOL DISTRICT of the dates and times of events as soon as possible when decided, but no later than five (5) business days prior to the date of the event.
c. Programing. During the term of this Agreement, DESERT RECREATION DISTRICT agrees to provide recreation programs at the Premises during all operational hours in which the Premises is not being utilized by the SCHOOL DISTRICT.
d. Safety. DESERT RECREATION DISTRICT covenants and agrees to ensure the safety of activity participants at all times and will ensure that certified lifeguards are on site at all times during Permitted Uses. Certification shall be from the American Lifeguard Association, California State Park Lifeguard Training Program, American Red Cross, or other statewide organization.
e. Water Contamination. The SCHOOL DISTRICT and DESERT RECREATION DISTRICT covenants and agrees to immediately notify SCHOOL DISTRICT of evidence of pool water contamination or public health hazards.
Section 3. USE OF PREMISES
a. CITY and DESERT RECREATION DISTRICT’s Use. During the term of this agreement, CITY and DESERT RECREATION DISTRICT shall be permitted to use the Premises only for the Permitted Uses in accordance with this Agreement. The Permitted Use must be in a form consistent with the normal use of the Premises and must be done in a safe manner. Neither CITY nor DESERT RECREATION DISTRICT shall make or cause to be made any alterations, additions or improvements in, on or to the Premises without the prior written approval of the SCHOOL DISTRICT. CITY and DESERT RECREATION DISTRICT covenants and agrees that they shall not cause any disruption or annoyance that may interfere with the normal operations of the Premises.
b. CITY and DESERT RECREATION DISTRICT Use. CITY and DESERT RECREATION DISTRICT agree that when using the Premises , it shall take all reasonable efforts to ensure that individuals using the Pool Use Guidelines attached hereto as Exhibit A.
c. SCHOOL DISTRICT’s Use. The SCHOOL DISTRICT hereby retains all rights for the SCHOOL DISTRICT to use the Premises in any lawful manner, even though that use may interfere with the Permitted Use of the Premises.
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Attachment: Contract for Pool Use 2023 (3642 : Joint Use Agreement for Operation of the Cathedral City High School Swimming Pool)
d. Priority. CITY and DESERT RECREATION DISTRICT agree that the SCHOOL DISTRICT’s use shall take priority over CITY or DESERT RECREATION DISTRICT’s requests for use.
Section 4. DAMAGES
DESERT RECREATION DISTRICT assumes full responsibility for any damage done to pool, associated facilities, or equipment (collectively “Facilities”) due to misuse, negligence, and vandalism during periods of Permitted Use by the DESERT RECREATION D ISTRICT. If damages occur, DESERT RECREATION DISTRICT shall be billed for the actual cost of repairs and/or replacement of the Facilities. The DESERT RECREATION DISTRICT shall not be responsible for normal wear and tear to the Facilities, regular or routine maintenance of the Facilities, or damage to the Facilities cau sed by the use of third parties. Prior to the start of the Term of this Agreement, DESERT RECREATION DISTRICT and CITY shall be permitted to inspect the Premises to determine and establ ish the condition of the Premises.
Section 5. TERM
This Agreement shall be effective from June 11, 2023, through and including August 5, 2023.
Section 6. FEES
a. CITY shall pay the SCHOOL DISTRICT a total amount not to exceed Fifty -Seven Thousand Five Hundred Forty Dollars ($57,540) (“Payment”). This payment represents the cost to the SCHOOL DISTRICT for custodial staff time, pool maintenance staff, and utilities used during the Permitted Use Periods. The Payment shall be made as follows: (1) the CITY shall pay the SCHOOL DISTRICT a total of $28,770 on or before June 9th, 2023; (2) the CITY shall pay the SCHOOL DISTRICT a total of $28,770 on or before July 7th, 2023.
b. CITY shall pay the DESERT RECREATION DISTRICT a total amount not to exceed Fifty-Five Thousand Dollars ($55,000) (“Payment”). The Payment shall be made as follows: (1) the CITY shall pay the DESERT RECREATION DISTRICT a total of $27,500 on or before June 9, 2023; (2) the CITY shall pay the DESERT RECREATION DISTRICT a total of $27,500 on or before July 7, 2023.
Section 7. INSURANCE
a. Policies.
(1) General Liability Coverage. Each Party shall procure and maintain, at its own expense, general liability insurance of not less than Two Million Dollars ($2,000,000) per occurrence, and Four Million Dollars ($4,000,000) in the aggregate, insuring its interests against claims for personal and bodily injury, death and property damage occurring as a result of the use of the Premises under this Agreement by that Party, its officers, employees, servants, volunteers, agents, and independent contractors .
(2) Worker's Compensation Coverage. Each Party shall procure and maintain, at its own expense, workers’ compensation insurance, providing coverage as required by the California State Workers’ Compensation Law. If any class of employees employed by the Party pursuant to this Agreement is not protected by the California State Workers’ Compensation Law, that Party shall provide adequate insurance for the protection of such employees to the satisfaction of the other Parties. Each Party agrees to waive its statutory immunity under any workers compensation or similar statute as respecting the other
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Parties and to require all subcontractors and any other person or entity involved with the Permitted Use to do the same.
(3) Abuse and Molestation Coverage. Each Party shall procure and maintain, at its own expense, abuse and molestation insurance of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate insuring its interest against claims or suits alleging physical, emotional, verbal or mental abuse, including sexual abuse or molestation occurring as a result of the use of the Premises under this Agreement by that Party, its officers, employees, servants, volunteers, agents, and independent contractors. Coverage should either be on an Occurrence basis, or if on a claims-made basis, shall include at a minimum a three-year automatic extended reporting period.
(4) Automobile Liability Coverage. Each Party shall further procure and maintain at its own expense commercial vehicle liability insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, covering any vehicle utilized by that Party or its officers, employees, servants, volunteers and agents and independent contractors in performing the Permitted Use.
b. Insurance Documentation.
(1) Each Party shall secure from a good and responsible company or companies admitted to do insurance business in the S tate of California, and possessing an A.M. Best’s rating of no less than A:Vll, the policies of insurance required by this Agreement and furnish to the other Parties certificates of said insurance with original endorsements on or before the commencement of the term of this Agreement.
Any insurance requirements contained in this agreement may be met with a program(s) of self-insurance.
Current certificate of coverage shall be kept on file with each Party at all times during the term of this Agreement.
(2) Each policy required herein must be endorsed to provide that the policy shall not be cancelled or reduced in coverage by either Party (except by paid claims) unless the insurer has provided the other Parties with thirty (30) days prior written notice of cancellation or reduction in coverage. In the event the insured Party is self-insured, that Party shall immediately notify the other Parties in the event of a withdrawal of coverage.
(3) All insurance policies required to be provided by each Party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self- insurance, primary or excess, maintained or available to the other Party , and its officers, employees, servants, volunteers, agents and independent contractors. Any insurance maintained by the other Parties, including any self -insured retention, shall be considered excess insurance only and shall not contribute with it.
(4) Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies shall bear an endorsement whereby it is provided that the other Parties and their officers, employees, servants, volunteers and agents and independent contractors are named as additional insureds.
(5) Each shall require the carriers of all required insurance policies to waive all rights of subrogation against the other Parties and their officers, volunteers, employees, contractors and subcontractors.
(6) This insurance shall act for each insured and additional insured as though a separate policy
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had been written for each, except with respect to the limits of liability of the insuring company.
(7) Any failure by a Party to comply with reporting provisions of the policies shall not affect coverage provided to the other Parties, its elected or appointed officers, officials, employees, agents or volunteers.
c. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the other Parties. At the other Parties’ option, the insuring Party shall demonstrate financial capability for payment of such deductibles or self-insured retentions.
d. Certificates of Insurance. The insuring Parties shall provide certificates of insurance with original endorsements or memorandums of coverage to the other Parties as evidence of the insurance coverage required herein. Memorandums of coverage or Certificates of, and endorsements for, such insurance shall be filed with the other Parties on or before commencement of performance of this Agreement. The insuring Parties agree to ensure that the most current certification of insurance is on file with the other Parties at all times during the term of this Agreement.
e. Imposition of Insurance Requirements. The insuring Parties covenant and agree to require that all parties with whom the insuring Party enters into contracts or whom insuring Party hires or retains pursuant to or in any way related to the performance of this Agreement , provide the insurance coverage required herein, at minimum, and name as additional insureds the Parties to this Agreement. The insuring Parties agree to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Section.
f. Maintain Coverages. In the event this Agreement is terminated for any reason prior to the completion of all obligations and requirements of this Agreement, the insuring Parties agree to maintain all coverages required herein until the other Parties provide written authorization to terminate the coverages following the other Parties’ review and determination that all liability posed under this Agreement as to the Party providing insurance has been eliminated.
g. Failure to Obtain Coverages. Each insuring Party agrees and acknowledges that if it fails to obtain all of the insurance required in this Agreement in accordance with the requirements herein, or to obtain and ensure that the coverage required herein is maintained by others involved in any way with the Permitted Use, that insuring Party shall be responsible for any losses, claims, suits, damages, defense obligations, or liability of any kind or nature attributable to the other Parties and their officers, employees, servants, volunteers, agents and independent contractors, for which the insuring Party is responsible under this Agreement.
Section 8. NO REPRESENTATIONS OR WARRANTIES
No Party, nor their agents or attorneys have made any representations or warranties with respect to the Premises, except as expressly set forth herein, and no rights, easements or leases are, or shall be, acquired by CITY or DESERT RECREATION DISTRICT by implication or otherwise.
Section 9. COMPLIANCE WITH LAWS
The Parties shall comply with all local, state and federal laws, rules, regulations, policies, and procedures applicable to use of the Premises, including, but not limited to, obtaining or maintaining a business.
Section 10. HOLD HARMLESS; INDEMNIFICATION
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a. Each Part y shall defend (with counsel reasonably acceptable to the other Parties) , indemnify and hold harmless the other Parties and its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damage, injuries. and liability, direct or indirect (including any and all costs and expenses in connection therewith) (collectively “Claims”), to the extent any such Claims arise out of the negligence or willful miscon duct of the indemnifying Party and their officers, agents, employees or volunteers.
b. No Party waives any rights that it may have against the other Parties under this section because of the acceptance of any insurance policy or certificate required pursuant to this Agreement. The hold harmless, indemnification and duty to defend provisions of this section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, action, damage, liability, loss, cost or expense described herein.
Section 11 WAIVER OF RIGHTS
a. Each Party agrees to waive all rights it may have against the other Party(is) and its officers, agents, employees and independent contractors to pursue any actions, suits, proceedings, claims, demands, losses, judgments and costs and expenses of every type and description, including settlement costs, legal costs and attorneys' fees (collectively “Claims”), resulting from or arising out of, or otherwise in connection with any injury or damage sustained by that Party that may arise from this Agreement, except to the extent any such claim may arise out of the negligence or willful misconduct of the other Party(ies) and their officers, agents, employees or volunteers.
Section 12. NOTICES
a. Any notice to be provided pursuant to this Agreement sha ll be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the Parties as follows:
To SCHOOL DISTRICT: Brian J. Murray, Ed.D.
Assistant Superintendent, Business Services
150 District Center Drive
Palm Springs, CA 92264
Telephone: (760) 883-2710 Facsimile: (760) 325-8726
Email: [email protected]
To CITY: Charles P. McClendon, City Manager
68-700 Avenida Lalo Guerrero,
Cathedral City, CA 92234
Telephone: (760) 770-0372 Facsimile: (760) 770-0399
Email: [email protected]
To DESERT RECREATION DISTRICT: Kevin Kalman, General Manager 45-305 Oasis, Indio, CA
Telephone: (760) 347-3484
Email: [email protected]
b. Notices, payments, and other documents shall be deemed delivered upon receipt by
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personal service or as of the second (2nd) day after deposit in the United States mail.
Section 13. ATTORNEY’S FEES AND LITIGATION EXPENSES
In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
Section 14. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the Parties when at least a copy hereof shall have been signed by both Parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
Section 15. TERMINATION OR EXPIRATION
a. This Agreement may be terminated or suspended without cause by either Party at any time provided that the respective Party provides the other Party at least thirty (30) calendar days’ written notice of such termination or suspension. In the event of termination of the Agreement by the SCHOOL DISTRICT, the SCHOOL DISTRICT shall make all reasonable efforts to continue to authorize the use of the Premises by the CITY and DESERT RECREATION DISTRICT where the Parties have previ ously agreed upon the date and time of the Permitted Use, and the CITY or DESERT RECREATION DISTRICT has already noticed or advertised the event to the public and/or contracted with vendors for the event.
b. This Agreement may be terminated by the SCHOOL DIS TRICT in the SCHOOL DISTRICT's sole and absolute discretion immediately if the SCHOOL DISTRICT determines CITY or DESERT RECREATION DISTRICT to be in violation of the terms of this Agreement or any of the rules or regulations that govern the Premises.
c. Upon termination or expiration of this Agreement, CITY and DESERT RECREATION DISTRICT shall immediately cease all use of the Premises.
Section 16. NOT AGENT
a. Nothing contained in this Agreement shall be deemed, construed or represented by the SCHOOL DISTRICT, DESERT RECREATION DISTRICT, or CITY or by any third person to create the relationship of principal and agent.
b. Neither DESERT RECREATION DISTRICT nor CITY shall have any authority, express or implied, to act on behalf of the SCHOOL DISTRICT in any capacity whatsoever as an agent, nor shall CITY or DESERT RECREATION DISTRICT have any authority, express or implied, to bind the SCHOOL DISTRICT to any obligation whatsoever.
Section 17. EQUAL OPPORTUNITY EMPLOYMENT
CITY and DESERT RECREATION DISTRICT represent that they are an equal opportunity employer and shall not discriminate against any subcontractor. employee, or applicant (“person") for employment
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because of race; denial of family and medical care leave; religious creed (including religious dress and grooming practices); color; national origin (including language use restrictions); ance stry; physical disability or mental disability (including HIV and AIDS); medical condition (cancer and genetic characteristics); genetic information; military or veteran status; marital status; gender, gender identity, and gender expression; sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding); age or sexual orientation. Unless otherwise permitted under the law, CITY and DESERT RECREATION DISTRICT shall not refuse to hire or employ any such person or refuse to select any such person for a training program leading to employment, or bar or discharge any such person from employment or from a training program leading to employment, or otherwise discriminate against any such person in compensation or in terms, conditions, or privileges of employment.
Section 18. CONFLICTS OF INTEREST
CITY and DESERT RECREATION DISTRICT covenant that they do not have any interest, nor shall it acquire an interest, directly or indirectly, which would conflict in any manner with the performance of Permitted Use under this Agreement. In the event the SCHOOL DISTRICT officially determines that CITY or DESERT RECREATION DISTRICT must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, CITY shall file the subject Form 700 with the SCHOOL DISTRICT Business Services Department pursuant to the written instructions provided by the SCHOOL DISTRICT.
Section 19. LICENSING AND PERMIT REQUIREMENTS
CITY and DESERT RECREATION DISTRICT represents that they have obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for the Permitted Use described in this Agreement, including a City business license (if necessary).
Section 20. TIME OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
Section 21. MEDIA
Neither DESERT RECREATION DISTRICT nor CITY shall not use the SCHOOL DISTRICT's insignia or photographs relating to the Permitted Use, or any publicity pertaining to the Permitted Use under this Agreement in any internet, magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of the SCHOOL DISTRICT.
Section 22. MODIFICATIONS AND AMENDMENTS
This Agreement may be modified or amended only by a written instrument signed by all Parties.
Section 23. BACKGROUND CHECKS
At any time during the term of this Agreement, the SCHOOL DISTRICT reserves the right to make an independent investigation into the background of any CITY or DESERT RECREATION DISTRICT employee, official, agent, contractor, or subcontractor performing work under this Agreement, including but not limited to their references, character, address history, past employment, education, social security
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number validation, and criminal or police records, for the purpose of confirming that such personnel are lawfully employed, qualified to provide the subject service, if any, or pose a risk to the safety of persons or property in and around the vicinity of the Premises. If the SCHOOL DISTRICT makes a reasonable determination that any of CITY or DESERT RECREATION DISTRICT 's prospective or then current personnel is deemed objectionable, then the SCHOOL DISTRICT may notify CITY or DESERT RECREATION DISTRICT of the same. CITY or DESERT RECREATION DISTRICT shall not use that personnel to perform work related to the Permitted Use, and if necessary, shall replace him or her with another suitable worker.
Section 24. ENTIRE AGREEMENT
a. This Agreement supersedes any and all other agreements, either oral or written, between the Parties with respect to the subject matter of this Agreement.
b. This Agreement contains all of the covenants and agreements between the Parties with respect to the subject matter of this Agreement, and each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any Party except those covenants and agreements embodied in this Agreement.
c. No agreement, statement, o r promise not contained in this Agreement shall be valid or binding.
Section 25. AMBIGUITIES
This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement.
Section 26. NON-LIABILITY OF OFFICERS AND EMPLOYEES
No officer or employee of a Party shall be personally liable to another Party to this Agreement , or any successor in interest, in the event of any default or breach by defaulting or for any amount which may become due to other Party, or to its successor, or for any breach of any obligation of the terms of this Agreement.
Section 27. REVIEW BY ATTORNEYS
Each Party hereto has had its attorneys review this Agreement and all related documents. Each Party hereto has consulted with its attorneys and has negotiated the terms of this Agreement based on such consultation.
Section 28 WAIVER
a. No waiver shall be binding, unless executed in writing by the Party making the waiver.
b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision.
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c. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
Section 29. ASSIGNMENT AND SUBCONTRACTING
The experience, knowledge, capability and reputation of CITY and DESERT RECREATION DISTRICT, their principals and employees were a substantial inducement for the SCHOOL DISTRICT to enter into this Agreement. Assignments of any or all rights, duties or obligations of the CITY and DESERT RECREATION DISTRICT under this Agreement will be permitted only with the written consent of the SCHOOL DISTRICT.
Section 30. NO DAMAGES RELIEF AGAINST SCHOOL DISTRICT
Except to the extent caused by the SCHOOL DISTRICT’S negligence or willful misconduct, the Parties agree that in no event shall CITY or DESERT RECREATION DISTRICT be entitled to recover damages of any kind whatsoever against SCHOOL DISTRICT for breach of this Agreement.
Section 31. CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
Section 32. SEVERABILITY
If any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or sections contained herein.
Section 33. GOVERNING LAW/VENUE
The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with California law.
All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in Riverside County, California.
Section 34. CUMULATIVE REMEDIES
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.
Section 35. EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the Parties, until signed by the authorized representative(s) of the Parties.
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Section 36. NO THIRD-PARTY BENEFICIARIES
The Parties do not intend the benefits of this Agreement to inure to any third party.
Section 37. REPRESENTATIONS OF PARTIES & PERSONS EXECUTING AGREEMENT
a. Each of the Parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the Parties hereto.
b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent.
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IN WITNESS WHEREOF, the SCHOOL DISTRICT, DESERT RECREATION DISTRICT and CITY have executed this Agreement as of the date first written above.
“SCHOOL DISTRICT”
Palm Springs Unified School District
Brian J. Murray, Ed.D.
Assistant Superintendent, Business Services
“DESERT RECREATION DISTRICT”
Desert Recreation District
Kevin Kalman
General Manager
“CITY”
City of Cathedral City
Charles P. McClendon, City Manager
ATTEST:
Tracey R. Hermosillo, City Clerk
APPROVED AS TO FORM:
Eric S. Vail, City Attorney
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EXHIBIT A
PALM SPRINGS UNIFIED SCHOOL DISTRICT POOL USE GUIDELINES
• School District is not liable for any personal valuables brought into the aquatic area or onto District property.
• All swimmers must wear proper swimming attire. Cut -offs and street clothes are not permitted in the pool.
• Persons with open sores, cuts, bandages, or rashes are not permitted in the pool. • No spitting or blowing nose in the pool.
• No hairpins, barrettes, jewelry, or glasses.
• Smoking, chewing gum, glass bottles or containers are not permitted in the aquatic center. • All children must be accompanied by an adult.
• No running, throwing/pushing, dunking, chicken fights, or rough play in the pool or shower area allowed at any time and grounds for immediate removal from the pool area. • NEVER jump or dive toward any object, including other swimmers, pool edges, or equipment. • No diving in the shallow end.
• Hanging on ropes or lane lines is not permitted.
• Do not stand, play, or jump off ladders or railings.
• No back dives, cannonballs, or somersaults allowed from the pool deck. • Always stay clear of handicap ramps and railings.
• No floatation devices are permitted in the pool.
• Starting blocks are restricted to approved swim practices and swim meets by school athletic teams, not recreational use.
• Non-swimmers must stay in the bleachers section of the pool area. • All injuries must be reported to the lifeguard on duty. • Socializing with or distracting any lifeguard on surveillance duty is not permitted. • All pool covers must be completely removed before pool use. • Possession of alcohol on District property is strictly prohibited. • Pool area is to be left clean. Check pool gutter drain for wayward items (bottles, goggles, caps, etc.). • Pool gates must always be closed.
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CITY COUNCIL
MINUTES
Special Meeting
Saturday, January 28, 2023
8:00 AM
Double Tree by Hilton Hotel Golf Resort
67967 Vista Chino
Cathedral City, CA 92234
• CALL TO ORDER
The meeting was called to order at 8:00 AM by Mayor Rita Lamb. • ROLL CALL
Attendee Name Title Status
Rita Lamb Mayor Present
Mark Carnevale Mayor Pro Tem Present
Nancy Ross Councilmember Present
Raymond Gregory Councilmember Present
Ernesto Gutierrez Councilmember Present
• STAFF PRESENT
Charles McClendon, City Manager
Anne Ambrose, Assistant City Manager
Tracey Hermosillo, City Clerk
Ryan Hunt, Communications and Events Manager
Eugenia Torres, Human Resources Manager
Kevin Biersack, Deputy Finance Director
London Pyle, Accountant II
Mallery Gerry, Accountant II
Jan DeGuzman, Chief Technology Manager
Edward Moore, Facilities and Field Superintendent
Robert Rodriguez, Director of Planning and Building
Gil Estrada, Chief Building Official
Sandra Molina, Code Compliance Development Manager
John Corella, Director of Engineering and Public Works
Armando Balizzone, City Engineer
Deanna Pressgrove, Environmental Conservation and Public Works Manager Stone James, Economic Development Director
George Crum, Chief of Police
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Rick Sanchez, Police Commander
Jon Enos, Police Commander
Michael Contreras, Fire Chief
Stephen Tumir, Battalion Chief
Craig Sanborn, Battalion Chief
Al Ford, Assistant City Attorney
Michael Kashiwagi, City Consultant
1. STRATEGIC PLANNING OVERVIEW
Mayor Rita Lamb welcomed everyone to the 2023 City Council Strat egic Planning. She expressed that the workshop is an important opportunity for the City Council to have a collaborative discussion with the City’s Management Team to discuss current priorities and to develop a long-term vision for the future. She stated that as the City continues to grow and demands on municipal service providers become increasingly complex, the ability to quickly identify and adapt to changing needs and expectations of our community becomes increasingly important. She announced that the Management Team attending the workshop represents professional staff responsible for planning, staffing, and implementing the full range of city programs, operations, and services for the residents and businesses. Their understanding and knowledge of cha nges wi thin their business groups, new and emerging legal and regulatory compliance mandates, challenges and opportunities created by current and emerging technologies, and evolving customer service needs and expectations are all important “inputs” for our visioning and goal setting efforts. The City’s Strategic Plan will be an important planning document to help maintain focus on the future in addition to operationally and tactically addressing current issues and needs. Similar to the City’s Biennial Bud get process and 5 Year Capital Improvement Program, the Strategic Plan will be reviewed annually and updated to reflect business changes and evolving needs and expectation s of the community we serve. She thanked everyone for investing their valuable time a nd knowledge in the important work and discussions that will be taking place during the workshop. She introduced Esmerelda Garcia, MIG , who the City engaged to facilitate the Strategic Planning process.
Ms. Garcia explained that the purpose of the worksho p was to introduce city leadership to the Strategic Plan process, and to discuss their shared values, vision, goals, and strategic directions to be considered in the five-year strategic plan.
Ms. García led the group with self -introductions, reviewed the workshop objectives, and provided an overview of the strategic planning process. She introduced Richard Bernard who presented findings from the community survey conducted by his survey research firm FM3. After he addressed questions, Ms. García launched the workshop activities.
The City Council and city staff were assigned to cross functional teams and sat in these smaller groups. The groups each addressed questions and prompts focused on a series of topics related to the Strategic Plan. These included Value s, Vision, Goals, and Strategic Priorities. Each group shared the results of its discussion with the entire group.
Below is a summary of the responses to questions and prompts that were a result of the team’s discussions:
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VALUES
The groups were asked to share what they value most as a community.
Community and Civic Pride
• Great quality of life
• Great place to retire or raise a family
o Education
o Health services
o Housing options and price points
o Affordability
o Employment
• Events / cultural
• Culture
• Independence
• Identity
• Fun
• Integrity
• Cleanliness
• Attractiveness
Inclusivity
• Embracing all
• Strong / sense of Community
• Spanish outreach
• Cultural events reflective of demographics
• Community engagement
• Transparency
Safety
• Police Department
• Fire Department
• People feel safe
• Emergency preparedness
• Homelessness
• Roads
• Public safety
• Community engagement - neighborhood watch
Public Investment
• Financial stability
• Fiscal responsibility
• Development
• Business
o Business friendly
o Variety / different options
o Predictable development process
• Economic development
• Road condition
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• Visual appearance
o Street medians
• Homelessness
• Environmental consciousness
Diversity
• Great place to live for different groups and people
o Young families
o Retirees
o Business options
Services
• Education
o Trade schools
o Palm Spring Unified School District
o College of the Desert
• Health services
• Cultural and community events
• Recreation
Innovation
• Willingness to evaluate and change
• Technology
• Environmentally conscious
VISION
Each group developed a vision that expresses t he City’s success. The following represents the results from each group.
All roads lead to Cathedral City
Cathedral City is safe, beautiful, fun, unpretentious,
We are the best kept secret of the Coachella Valley, the place where charm meets innovation
We welcome everyone - you can be yourself, come as you are We embrace small and start up business
Cathedral City is ranked one of the top 10 safest cities in California Because we facilitate high quality development, we have become a fully built out city We offer excellent amenities and are a leader in entertainment in the Coachella Valley We have a great reputation for being inclusive and have transparent government
Cathedral City is the heart of the desert and has built its success by leveraging its adjacency to Palm Springs
We have a deep sense of community, great government services Our community embraces our diversity with an emphasis on equity, and inclusion Residents stay forever because Cathedral City is affordable, has a variety of housing options, vibrant business, beautiful neighborhoods, and cultural / arts events
Cathedral City is a great place to live, work, and play!
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It is the safest city in the Coachella Valley where the community can engage with Police and Fire
We have well maintained and clean streets that are nicely landscaped It’s a prime hub and destination in the Coachella Valley The community is affordable, visually attractive, diverse, and inclusive We offer diverse offerings for locals and visitors including special events, walk ing and biking trails
Cathedral City is one of the top places to retire
It is family oriented, safe, clean, visually attractive, afforda ble, is a great place to work, and business friendly
We are innovative and a leader in smart technology
The City is a d estination, where people come for our events, arts and culture, visit the downtown, and experience the diverse outdoor recreation options
GOALS
Groups were asked to discuss and identify goals that will guide the city in achieving its future vision. These are a starting point and city leadership will continue to build on these through the process of developing the strategic plan framework. B elow is the initial set of goals identified by the groups.
Enhance public safety
• Prioritize innovative community-based public safety programs • Ensure proactive initiatives and strategies
Increase the rate of high-quality development that results in economic prosperity
Improve the visual appearance of the City
• Streets, medians, gateways
• Residential properties are maintained
• Development / redevelopment standards
• Homelessness
• Graffiti
• Code enforcement
Enhance communication between Cathedral City and the community • Ensure people are heard
• Utilize all methods and technology
• Ensure it is efficient and two way
STRATEGIC PRIORITIES
The group discussed specific opportunities and priorities for realizing the City’s vision.
The City Council members shared their priorities, and these are noted below:
1. Serving the Community with Pride and Dedication - Through diversity, equity and inclusion driven employee programs and employee experiences, Cathedral City is the employer of choice with a workforce that is engaged, motivated and respected public stewards
a. Study the need to reallocate staff resources, including the use of contracts
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b. Review comparison data on Council salaries and the process to update if warranted
c. Consider a Fire Cad et prog ram to introduce youth to the potential for careers in fire and emergency medical services
2. Community Pride and Investment - Cathedral City road conditions have improved to rank among the top cities in the Coachella Valley , and other city infrastructure and facilities are well maintained due to the use of objective asset management tools
a. Develop an Electric Vehicle transition plan to comply with upcoming state mandate and include consideration of providing publicly accessible charging stations
b. Develop an entryway, medians, and lighting master plan to provide appealing gateways to the City
c. Develop a wilderness trail plan
d. Complete a dog park in the southern part of the City e. Improve and expand Chuperosa Lane to become a point of pride in Cathedral City
f. Maximize the use of existing resources to include underutilized parks and the library to support goals with the budget we have
g. Communicate with residents to move parked vehicles on street sweeping day
h. Improve pedestrian access to p arks th rough the use of crosswalks and sidewalk improvements
i. Improve wayfinding signage to direct visitors to destinations in the community
j. Develop a traffic calming plan with strategies for addressing location specific speeding issues
k. Develop a pl an to a ddress the need for funding for parks and recreation services through the DRD; and other resident priorities including streets, and work toward a potential funding measure in 2024.
l. By the end of 2023, complete the design phase and begin constructi on on the Dream Homes Park
3. Fiscal Stability and Sustainability - Cathedral City has economically prospered by facilitating the invest ment of private dollars in high quality development which benefits the community
a. Explore providing a General Fund Ca pital P rojects fund as part of development of the next biennial budget
b. Develop and adopt a Facilities Master Plan
c. Implement improvements to purchasing practices and procedures to align with procurement code requirements
d. Increase Council district improvement funds
e. Consider acquisition of an underutilized site on Cathedral Canyon and work to activate the site
f. Allocate resources necessary to achieve the City Council’s goals and vision
g. Develop an inventory of vacant and underutilized properties h. Complete and improve the installation of the Tyler EnerGov software to automate, improve and streamline the plan review, permitting and
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inspection processes
i. Evaluate data and work with CVEP to identify holes in the local economy and develop plans to address
j. Strengthen the Economic Development team and remove optional tasks such as commission staffing to focus on core/essential duties k. Complete and adopt the Development Impact Fee study
4. Innovation - Cathedral City has successfully leveraged technology to optimize resource allocation, improve public services, stimulate economic growth, and has improved accessibility and affordability of reliable high speed internet services a. Develop and adopt an Information Technology Master Plan including consideration of providing public WiFi access in parks
b. Provide an on-line calendar to display Amphitheater bookings c. Complete and im prove the installation of the Tyler EnerGov software to automate, improve and streamline the plan review, permitting an d inspection processes
5. Safety - Cathedral City is safe for all who live, work and play in our community a. Fill the authorized Ambula nce Operator position and complete the transition to the ambulance operator program and provision of the third ambulance
b. Develop a firearm discharge ordinance
c. Expand the use of cameras and other technology to promote public safety d. Increase Police and Fire engagement with the community e. Police department develops pro -active methods to reach out to youth and families
f. Improve the Police presence and interaction at community events
6. Inclusive/Thriving City - Cathedral City is valued and respect ed as a community that welcomes and celebrates diversity, has an abundance of high quality, affordable housing, vibrant businesses, and attractive and well - maintained neighborhoods
a. Complete the comprehensive update of the Cathedral City Municipal Code with initial emphasis on Chapter 9 (zoning) and Chapter 5 (business regulations)
• Address parking and paving provisions in the code for residences • Prohibit parking in front of mailboxes
b. Help define who Cathedral City is for our families and others c. Update the Thousand Palms annexation fiscal analysis d. Promote additional community events and celebrations e. Develop and implement a plan to improve and diversify methods of communication with residents
f. Work with Riverside County to locate the potential RUHS community health center in Cathedral City
7. Homelessness - Cathedral City has professionally and compassio nately addressed issues of homelessness through thoughtful programs and strategies developed and implemented in collaboration with key stakehol ders and adjacent communities
a. Develop a public awareness campaign to inform the community of the
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City’s effort s and e xpenditures on homelessness and how residents can participate in solutions in the graphic summary below.
All five members of the City C ouncil, city department directors, and representative staff across all departments participated in the all-day interactive workshop. In addition to the discussion on values, visions, goals and strategic priorities, City Manager Charles McClendon provided a n update on the Council Goals that were established for 2022 and Kevin Biersack, Deputy Finance Director , provided a fi nancial overview and FY 2022-2023 mid-year budget update.
The following members of the public also attended the all -day workshop and had the opportunity to provide their insight and comments.
Danny Lee
Shelly Kaplan
Sunshine Herrera
Danielle Mead
ADJOURN
Mayor Rita Lamb adjourned the Five-Year Strategic Plan Workshop at 3:15 p.m.
Mayor, City of Cathedral City City Clerk, City of Cathedral City
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CITY COUNCIL
MINUTES
Special Meeting
Wednesday, February 15, 2023
2:00 PM
City Council Chambers
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
• CALL TO ORDER
The meeting was called to order at 2:00 PM by Mayor Rita Lamb. • ROLL CALL
Attendee Name Title Status Arrived
Rita Lamb Mayor Present 2:00 PM
Mark Carnevale Mayor Pro Tem Present 2:00 PM
Nancy Ross Councilmember Absent
Raymond Gregory Councilmember Present 2:00 PM
Ernesto Gutierrez Councilmember Present 2:00 PM
• AGENDA FINALIZATION
There were no changes to the agenda.
1. AGENDA ITEMS
A. Staffing Review of the City Manager Department
Recommendation: This item is presented for information, discussion and direction only.
City Manager Charles McClendon provided a review of the staff ing for the City Manager's Department, including potential changes and additions to the FY 2023/2024 and 2024/2025 budget. In addition, the City Manager reported on accomplishments that were achieved by the Human Resources and City Clerk's Departments as well as their goals for the upcoming budget cycle.
Ryan Hunt, Communications and Events Manager, provided an overview of the staffing and functions for the Communications and Events Department, including potential changes and additions to the FY 2023/2024 and 2024/2025 budget.
This item was a presentation only, no formal action was taken.
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B. Proposed FY 2023-2024 Special Events
Recommendation: This item is for information and to receive direction from the City Council, no formal action will be taken.
Ryan Hunt, Communications and Events Manager, provided an overview of the proposed FY 2023/2024 Special Events.
After discussion, the City Council expressed support for continuing allocations for the following events/programs for FY 2023/2024:
• Kids Summer Film Series
• CCHS Homecoming Parade
• Halloween Spooktacular
• Banner Program
• Palm Springs Pride
• Fields of Valor
• Palm Spring Film Festival
• Taste of Jalisco
• Cathedral City LGBT Days
• State of the City
• Harvey Milk Breakfast
• Palm Springs Restaurant Week
The City Council also expressed interest for the following options presented by staff:
• Explore Food Truck Tuesday events - ensuring local vendors are also utilized
• Explore options for local city events in lieu of Tejano Music Fest • Explore purchasing a city owned balloon for the Cathedral City Hot Air Balloon Festival, and possible changes to days and times for the annual event
• Increase the North Pole Village at Snow Fest budget
C. Staffing Review of the Administrative Services Department Recommendation: This item is presented for information, discussion and direction only.
This item will be heard at a future meeting.
ADJOURN
Mayor Rita Lamb adjourned the meeting at 3:56 p.m.
Mayor, City of Cathedral City City Clerk, City of Cathedral City
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CITY COUNCIL
MINUTES
Study Session
Wednesday, February 22, 2023
3:00 PM
City Council Chambers
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
• CALL TO ORDER
The meeting was called to order at 3:00 PM by Mayor Rita Lamb. • ROLL CALL
Attendee Name Title Status Arrived
Rita Lamb Mayor Present 3:00 PM
Mark Carnevale Mayor Pro Tem Present 3:00 PM
Nancy Ross Councilmember Present 3:00 PM
Raymond Gregory Councilmember Present 3:00 PM
Ernesto Gutierrez Councilmember Present 3:00 PM
• AGENDA FINALIZATION
There were no changes to the agenda.
1. PUBLIC COMMENT
There were no members of the public that wished to speak.
2. CLOSED SESSION
City Attorney Eric Vail announced that the City Council will meet in Closed Session to discuss the following items listed on the agenda.
A. Conference with Labor Negotiator Pursuant to Government Code Section 54956.6
Agency Negotiator: Charles McClendon, City Manager and Al Ford, Assistant City Attorney
Represented Employees:
AFSCME - American Federation of State, County and Municipal Employees B. Public Employee Performance Evaluation Pursuant to Government Code section 54957(b)(1)
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Title: City Manager
C. Conference with Labor Negotiators Pursuant to Government Code section 54957.6
Agency designated representatives; Mayor Rita Lamb, City Attorney Eric Vail Unrepresented Employee: City Manager
D. Conference with Real Property Negotiator Pursuant to Government Code Section 54956.8.
Property Location: Approximately 13.5 acres south of East Palm Canyon Drive at Date Palm Drive
Negotiating Parties: City of Cathedral City as the Successor Agency to the former Redevelopment Agency and the City Urban Revitalization Corporation Property Owner: City Urban Revitalization Corporation
Under Negotiations: Price and Terms for potential sale of real property
ADJOURN
The City Council adjourned to Closed Session at 3:01 p.m.
Mayor, City of Cathedral City City Clerk, City of Cathedral City
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CITY COUNCIL
MINUTES
Regular Meeting
Wednesday, February 22, 2023
5:30 PM
City Council Chambers
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
• CALL TO ORDER
The meeting was called to order at 5:30 PM by Mayor Rita Lamb. • PLEDGE OF ALLEGIANCE
Councilmember Nancy Ross led the Pledge of Allegiance.
• INVOCATION (MOMENT OF REFLECTION)
Councilmember Raymond Gregory offered the moment of reflection. • ROLL CALL
Attendee Name Title Status Arrived
Rita Lamb Mayor Present 5:30 PM
Mark Carnevale Mayor Pro Tem Present 5:30 PM
Nancy Ross Councilmember Present 5:30 PM
Raymond Gregory Councilmember Present 5:30 PM
Ernesto Gutierrez Councilmember Present 5:30 PM
• AGENDA FINALIZATION
There were no changes to the agenda.
1. PUBLIC COMMENT
Corwin Deveas ex pressed his concern with the Police Department Administration and the separation of a volunteer.
2. COUNCIL REPORTS
Councilmember Raymond Gregory reported on the following:
• CVAG Public Safety Committee Meeting
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• Past and upcoming Special City Council meetings
• Rainbow Crossing Repainting
• Brothers of the Desert Fundraiser and Proclamation
• Mary Nutter Collegiate Classic Softball Tournament
• LGBT Days
Mayor Pro Tem Mark Carnevale reported on the following:
• Special City Council meeting held on February 15, 2023 • Invitation by Sunshine Herrera to visit Mumawet Hill
• Resident concerns
• Police and Fire Department informational event at Date Palm County Club • Mary Nutter Collegiate Classic Softball Tournament
Councilmember Nancy Ross reported on the following:
• Residents applying for the sidewalk grant program
• Walk Your Kids to School Day and the participation of the Police Department • Resident issues/concerns she assisted with
• Lunch meeting with Francis Barraza, Chief of Staff for Assemblyman Wallis • Her attendance at the February 21, 2023 Historic Preservation Committee meeting
Councilmember Ernesto Gutierrez reported on the following:
• Valentine’s Day
• President’s Day
• CVAG Conservation Committee meeting
• CVAG Homeless Committee meeting
• Past Special City Council meeting
• Resident issues/concerns he assisted with
• His personal tour of the City to make note and evaluate issues • Meeting with Assistant City Manager Anne Ambrose
• Meeting with City Manager Charles McClendon
• Meeting related to the new Escena Development Project
Mayor Rita Lamb reported on the following:
• Riverside County Date Festival
• Firebirds hockey clinics that were provided to the Boys and Girls Club • Meeting with Communications and Events Manager Ryan Hunt • Yoga Program in the Cathedral City Community Amphitheater • Meeting with Assistant City Manager Anne Ambrose and Economic Development Director Stone James
• Chuperosa Lane Project
• Senior Inspiration Awards Committee meeting
• Mary Nutter Collegiate Classic Softball Tournament
• Mayor’s message: Embrace Diversity
• LGBT Days
3. CONSENT AGENDA
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A motion was made by Mayor Pro Tem Carnevale and seconded by Councilmember Gregory to approve the following Consent Agenda items:
RESULT: APPROVED [UNANIMOUS]
MOVER: Mark Carnevale, Mayor Pro Tem
SECONDER: Raymond Gregory, Councilmember
AYES: Lamb, Carnevale, Ross, Gregory, Gutierrez
A. Waive Full Reading of Ordinances on Agenda
M.O. 2023-24
B. Minutes Approval
M.O. 2023-25
1. City Council - Study Session - Feb 8, 2023 3:00 PM
2. City Council - Regular Meeting - Feb 8, 2023 5:30 PM C. Receive and File Payment of Claims and Demands for January 2023 Recommendation: The City Council acting in its capacity for the City, the Successor Agency to the former Redevelopment Agency,
the Housing Successor Agency and the Cathedral City
Public Finance Authority receive and file payment of claims and demands in the aggregate sum of $7,438,022.47 for the month of January 2023.
M.O. 2023-26
D. Ratify the nomination of Angel Herrera by Mayor Pro Tem Mark Carnevale to serve on the Parks and Community Events Commission to fill an unexpired term continuing through June 30, 2023 and ratify the nomination of Antonio Baciu by Councilmember Raymond Gregory to serve on the Parks and Community Events Commission and appoint him to fill the unexpired term continuing through June 30, 2024.
Recommendation: To ratify the nomination of Angel Herrera by Mayor Pro Tem Mark Carnevale to serve on the Parks and Community
Events Commission to fill an unexpired term continuing
through June 30, 2023 and ratify the nomination of Antonio Baciu by Councilmember Raymond Gregory to serve on the
Parks and Community Events Commission and appoint him
to fill the unexpired term continuing through June 30, 2024.
M.O. 2023-27
4. ITEMS PULLED FROM CONSENT
5. PUBLIC HEARINGS
6. LEGISLATIVE ACTIONS
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A. Accept a gift in the amount of $50,000 from Grizzly Entertainment for a drone light show from Grizzly Entertainment for a drone light show at Cathedral City LGBT Days.
Recommendation: To accept a gift in the amount of $50,000 from Grizzly Entertainment for a drone light show at Cathedral City LGBT Days.
M.O. 2023-28
A motion was made by Councilman Gutierrez and seconded by Councilmember Ross to accept a gift in the a mount of $50,000 from Grizzly Entertainment for a drone light show at Cathedral City LGBT Days.
RESULT: APPROVED [UNANIMOUS]
MOVER: Ernesto Gutierrez, Councilmember
SECONDER: Nancy Ross, Councilmember
AYES: Lamb, Carnevale, Ross, Gregory, Gutierrez
B. Resolution Establishing Historic Preservation Ordinance Application Fees
Recommendation: To approve a resolution establishing the Historic Preservation Ordinance application fees.
Reso 2023-02
A motion was made by Councilmember Gregory and se conded by Councilmember Ross to approve a resolution establishing the Historic Preservation Ordinance application fees.
RESULT: APPROVED [UNANIMOUS]
MOVER: Raymond Gregory, Councilmember
SECONDER: Nancy Ross, Councilmember
AYES: Lamb, Carnevale, Ross, Gregory, Gutierrez
C. Approve a General Fund budget amendment in the amount of $172,000 for FY 2022/2023 to complete the approved contract with MAAS Companies for the completion of Phase I of the Facilities Services & Master Plan.
Recommendation: To approve a General Fund budget amendment in the amount of $172,000 for FY 2022/2023 to complete the
previously approved contract with MAAS Companies to
complete Phase I of the Facilities Services & Master Plan.
M.O. 2023-29
A motion was made by Cou ncilman Gutierrez and seconded by Mayor Lamb to approve a General Fund budget amendment in the amount of $172,000 for FY 2022/2023 to complete the previously approved contract with MAAS Companies to complete Phase I of the Facilities Services & Master Plan.
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Minutes Acceptance: Minutes of Feb 22, 2023 5:30 PM (Minutes Approval) Cathedral City P a g e 5 Printed on 3/02/2023
RESULT: APPROVED [UNANIMOUS]
MOVER: Ernesto Gutierrez, Councilmember
SECONDER: Rita Lamb, Mayor
AYES: Lamb, Carnevale, Ross, Gregory, Gutierrez
D. Cannabis Industry Analysis and Taxation Modification Recommendation: To adopt a resolution reducing the cannabis dispensary tax rate to 5% of gross proceeds, the cultivation rate to $10.00 per square foot, and the manufacturing per piece tax rate to $0.05 cents.
Kenneth Churchill, West Coast Cannabis Club, expressed his support of lowering the cannabis retail tax rate to 5% and urged the Council to approve staff's recommendation.
Scott Rusczyk, Chairman of the Legislative Subcommittee of the Coachella Valley Cannabis Alliance Network (CVCAN), expressed their support of the proposed tax reductions and feels it will be a strong step in the right direction.
Armando Perez, Representative for the cannabis cultivation industry, expressed his appreciation for the actions that the city is taking. He understands the concerns related to the loss of revenue, but feels it will be a gain for the cit y if the business stay in business.
Reso 2023-03
A motion was made by Councilman Gutierrez and seconded by Councilmember Ross to adopt a resolution reducing the cannabis dispensary tax rate to 5% of gross proceeds, the cultivation rate to $10.00 per squ are foot, and the manufacturing per piece tax rate to $0.05 cents.
RESULT: APPROVED [UNANIMOUS]
MOVER: Ernesto Gutierrez, Councilmember
SECONDER: Nancy Ross, Councilmember
AYES: Lamb, Carnevale, Ross, Gregory, Gutierrez
7. DISCUSSION ON FUTURE AGENDA ITEMS
Councilmember Ross would like to agendize a future item to discuss banning mylar balloons in Cathedral City.
After discussion, there was not a consensus of the City Council to agendize an item to discuss banning mylar balloons.
8. CLOSED SESSION
City Attorney Eric Vail reported that the City Council met in Closed Session during the Study Session meeting of February 22, 2023, and there was no reportable action taken.
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Minutes Acceptance: Minutes of Feb 22, 2023 5:30 PM (Minutes Approval) Cathedral City P a g e 6 Printed on 3/02/2023
ADJOURN
Mayor Rita Lamb adjourned the Regular City Council meeting at 7:15 p.m.
Mayor, City of Cathedral City City Clerk, City of Cathedral City
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Minutes Acceptance: Minutes of Feb 22, 2023 5:30 PM (Minutes Approval)
CITY COUNCIL
MINUTES
Special Meeting
Wednesday, March 1, 2023
2:00 PM
City Council Chambers
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
• CALL TO ORDER
The meeting was called to order at 2:00 PM by Mayor Rita Lamb. • ROLL CALL
Attendee Name Title Status Arrived
Rita Lamb Mayor Present 2:00 PM
Mark Carnevale Mayor Pro Tem Present 2:00 PM
Nancy Ross Councilmember Present 2:00 PM
Raymond Gregory Councilmember Present 2:00 PM
Ernesto Gutierrez Councilmember Present 2:00 PM
1. AGENDA ITEMS
A. Staffing Review of the Development Services Department Recommendation: This item is presented for information, discussion and direction only.
Robert Rodriguez, Director of Planning and Building, provided an overview of the staffing for the Developm ent Services Department and provided an overview of the services and functions each division of the department is responsible for, and the amount of time spent doing them. He provided information on some of the major accomplishments of each division and in troduced their future goals and initiatives.
Danny Lee, commended staff for all of their efforts and accomplishments, especially related to STVR's. He also expressed how happy he is to hear what is happening with permitting and inspections.
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Minutes Acceptance: Minutes of Mar 1, 2023 2:00 PM (Minutes Approval) Cathedral City P a g e 2 Printed on 3/02/2023
Council pro vided comments and asked clarifying questions, which were responded to by staff. This item was presented for information and discussion only, there was no formal action taken.
B. Staffing Review of the Assistant City Manager and Economic Development Departments
Recommendation: This item is presented for information, discussion and direction only.
Anne Ambrose, Assistant City Manager, provided an overview of the Assistant City Manager position and the departments that she oversees. She went over the functions of the Assistant City Manager and the approximate time spent in each area. She reported that Information Technology/Management Information Systems will now be under her supervision, and she provided an overview of the department's responsibilities and future goals.
Stone James, Economic Development Director, provided an overview of the staffing of the Economic Development Department, the functions, and the approximate percentage of time spent doing those functions. He presented the department’s activit ies and accomplishments as well as key future goals. He went over proposed changes and additions for the FY 2023/2024 and FY 2024/2025 budget cycle.
There was discussion amongst the members of the City Council and questions were asked related to the prop osed changes and additions for the upcoming budget cycle with responses from staff.
This item was presented for information and discussion only, no formal action was taken.
ADJOURN
Mayor Rita Lamb adjourned the Special City Council Meeting of March 1, 2023, at 4:15 p.m.
Mayor, City of Cathedral City City Clerk, City of Cathedral City
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Minutes Acceptance: Minutes of Mar 1, 2023 2:00 PM (Minutes Approval)
Cathedral City Page 1 of 2 Printed on 3/2/2023
Staff Report
City Council
Item No. 7.A
Meeting Date: March 8, 2023
From: Robert Rodriguez, Director of Planning/Building
Title: Contract for Thousand Palms Annexation Fiscal Analysis
City Council
RECOMMENDATION:
To approve a contract with Terra Nova Planning & Research, Inc in an amount not to exceed $70,070, which reflects the base contract of $63,700 and a 10% contingency of $6,300, and authorize a budget amendment in the amount of $70,070.
BACKGROUND:
At their Annual Goal Setting Strategy S ession held in January 2022, the City Council directed staff to update the Thousand Palms Fiscal Analysis. Last updated in 2018, t he Fiscal Analysis provided the fiscal effect of a potential annexation of the City’s Sphere of Influence (SOI) at four stages : immediately upon annexation (Phase 1); at the time 10 percent of the currently vacant land is developed (Phase 2); at the time 50 percent of the currently vacant land has been developed (Phase 3); and at build out (Phase 4). It also described how the demand for local services will be met when the annexed area is developed.
The Analysis examined anticipated annual costs needed to serve the future annexation area at the four phases of development including general government and public safety services, pro jected annual revenues including property, local sales tax, and transient occupancy tax, projected cannabis tax and what the costs and revenues would be for the City should that revenue not be available, one -time revenue sources, and significant one-time costs associated with Fire Department facilities and roadway improvements to bring currently substandard streets to City standards.
A review of the 2018 fiscal analysis was discussed with the City Council in a study session on August 24, 2022. After discu ssion, Council provided direction to develop a scope of work for a new fiscal analysis with specific direction to include an analysis of current and proposed development in the eastern end of the sphere of influence and an analysis of options for the provi sion of public safety services in the sphere considering both direct provision of services by the City and the use of contractual arrangements at least in the early stages of annexation.
A proposed scope of work was presented to the City Council in a stud y session on
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October 26, 2022. After discussion, the City Council directed staff to move forward with the Request for Proposal (RFP) process as recommended by staff.
DISCUSSION:
Staff developed a Request for Proposals (RFP) to identify consultants with th e ability to prepare the annexation fiscal analysis. The RFP was issued on December 23, 2022, and responses were due on January 20, 2023. The RFP was sent to firms previously identified through the 2018 analysis and posted on the City’s website. Upon the d ue date, proposals were received from two firms:
Consultant Location
Terra Nova Planning & Research, Inc. Palm Desert, California Civic Solutions, Inc. San Juan Capistrano, California
The proposals were reviewed and evaluated by an internal committee of staff members.
Each proposal was evaluated based on experience, project approach , scope of work, schedule, and cost. The two proposals were ranked as follows:
Consultant Ranking
(1 Highest)
Schedule Cost
Terra Nova Planning &
Research, Inc.
1 6 months $63,700
Civic Solutions, Inc. 2 8 months $149,819
The committee ranked Terra Nova as the highest due to their familiarity with the City and project, previous local experience including preparing the fiscal analysis of the Acrisure Arena for the City of Palm Desert, and cost, which was more than 50% less than the other proposal.
FISCAL IMPACT:
Approving the contract with Terra Nova Planning & Research, Inc. will require a budget amendment in the amount of $70,700.
ATTACHMENTS:
Cathedral City Services Agreement - Terra Nova Research & Planning Terra Nova Planning & Reserch Proposal
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1 AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
TERRA NOVA PLANNING & RESEARCH, INC.
This Agreement for Services (“Agreement”) is entered into as of March 8, 2023 (“Effective Date”) by and between the City of Cathedral City , a m unicipal corporation (“City”) and Terra Nova Planning & Research, Inc ., a California Corporation (“Service Provider”). City and Service Provider are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by request for proposals the performance of the services defined and described particularly in Section 2 of this Agreement.
B. Service Provider, following submission of a proposal for the performance of the service s defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Cathedral City’s Municipal Code, City has authority to enter into this Services Agreement and the City Manager has authority to execute this Agreement.
D. The Parties desire to formalize the selection of Service Provider for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performan ce be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 19 "Termination of Agreement" of this Agreement, the Term of this Agreement is for six (6) months commencing on the Effective Date.
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
2 SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE. (a) Scope of Services . Service Provider agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference.
(b) Schedule of Performance . The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Service Provider shall be deemed to be in Default of this Agreement.
The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Service Provider to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Service Provider shall not be compensated for any work rendered in connection with its performance of this Agr eement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writi ng in accordance with Section 25 “Administration and Implementation” or Section 2 7 “Amendment” of this Agreement. If and when s uch additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Service Provider the amounts specified in Exh ibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed sixty-three thousand and seven hundred dollars ($63,700), unless additional compensation is approved in writing in accordance with Section 2 5 “Administration and Implementation” or Section 2 7 “Amendment” of this Agreement.
(b) Each month Service Provider shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub -category), travel, materials, equipment, supplies, and sub -Service Provider contracts. Sub -Service Provider charges shall be detailed by the following categorie s: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Exhibit “B” include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of task performed and the amount of time incurred for or allocated to that task. City s hall independently review each invoice submitted by the Service Provider to determine whether the work performed and expenses i ncurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c).
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
3 In the event any charges or expenses are di sputed by City, the original invoice shall be returned by City to Service Provider for correction and resubmission. (c) Except as to any charges for work performed or expenses incurred by Service Provider which are disputed by City, City will use its best effo rts to cause Service Provider to be paid within forty -five (45) days of receipt of Service Provider ’s correct and undisputed invoice.
(d) Payment to Service Provider for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Service Provider.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Service Provider’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Service Provider’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Service Provider’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud.
Acceptance of any of Service Provider’s work by City sha ll not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 1 5 “Indemnification” and Section 16 “Insurance.”
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, survey s, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Service Provider in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Service Provider . Upon completion, expiration or termination of this Agreement, Service Provider shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Service Provider in the course of providing the Services p ursuant to this Agreement, Service Provider’s guarantees and warranties in Section 9 “Standard of Performance ; Familiarity With W ork” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, repo rts, data, notes, computer files, files or other documents.
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
4 SECTION 7. SERVICE PROVIDER'S BOOKS AND RECORDS.
(a) Service Provider shall maintain any and all documents and records demonstrating or relating to Service Provider’s performance of the Services. Service Provider shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evide ncing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement.
Any and all su ch documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Service Provider pursuant to this Agr eement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreeme nt and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or docu ments required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time d uring regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternati ve is mutually agreed upon, such documents and records shall be made available at Service Provider’s address indicated for receipt of notices in this Agreement. (c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Service Provider’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors -in-interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Service Provider is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Service Provider shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City.
(b) The personnel performing the Services under this Agreement on behalf of Service Provider shall at all times be under Service Provider’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Service Provider or any of Service Provider’s officers, employees, or agents except as set forth in this Agreement.
Service Provider shall not at any time or in any manner represent that Service Provider
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
5 or any of Service Provider’s officers, employees, or agents are in a ny manner officials, officers, employees or agents of City.
(c) Neither Service Provider , nor any of Service Provider ’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Service Provider expressly waives any claim Service Provider may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK. (a) Service Provider represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Service Provider shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Service Provider shall employ, at a minimum, generally accepted standards and p ractices utilized by persons engaged in providing services similar to the Services required of Service Provider under this Agreement. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Service Provider’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance crite ria, the specific standard or criteria shall prevail over the general.
(b) Service Pro vider warrants that (1) it has thoroughly inve stigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered how the work should be performed, and (4) it fully understands the facilities, difficultie s and restrictions attending performance of the work under this Agreement.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Service Provider shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Service Provider shall obtain any and all licens es, permits and authorizations necessary to perform the Services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any fai lure of Service Provider to comply with this section.
SECTION 11. PREVAILING WAGE LAWS
It is the understanding of City and Service Provider that California prevailing wage laws do not apply to this Agreement because the Agreement does not involve any
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
6 of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
SECTION 12. NONDISCRIMINATION.
Service Provider shall not discriminate, in any way, against any person on the basis of race, color, religious cree d, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement.
SECTION 13. CONFLICTS OF INTEREST.
(a) Service Provider covenants that neither it, nor any officer or princip al of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Service Provider’s performance of the Services. Service Provider further covenants th at in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Service Provider agrees to at all times avoid confl icts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City may determine that Service Provider must disclose its financial interests by completing and filing a Fair Political Practi ces Commission Form 700, Statement of Economic Interests. If such a determination is made, Service Provider shall file the subj ect Form 700 with the City Clerk ’s Office pursuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request. (c) City understands and acknowledges that Service Provider is, as of the date of execution of this Agr eement, independently involved in the performance of non - related services for other governmental agencies and private parties. Service Provider is unaware of any stated position of City relative to such projects. Any future position of City on such proje cts shall not be considered a conflict of interest for purposes of this section.
(d) City understands and acknowledges that Service Provider will perform non-related services for other governmental agencies and private Parties following the completion of the S ervices under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 14. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
7 (a) All information gained or work product produced by Service Provider in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Service Provider . Service Provider shall not release or disclose any such information or work product to persons or entities o ther than City without prior written authorization from the City Manager, except as may be required by law.
(b) Service Provider, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court or der shall not be considered "voluntary" provided Service Provider gives City notice of such court order or subpoena.
(c) If Service Provider, or any officer, employee, agent or subcontractor of Service Provider , provides any information or work product in vio lation of this Agreement, then City shall have the right to reim bursement and indemnity from Service Provider for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Service Provider’s conduct.
(d) Service Provider shall promptly notify City should Service Provider , its officers, employees, agents or subcontractors, be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery re quest, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the righ t, but has no obligation, to represent Service Provider or be present at any deposition, hearing or similar proceeding. Service Provider agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery reque sts provided by Service Provider. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
SECTION 15. INDEMNIFICATION.
(a) Indemnification for Professional Liability. Where the law establ ishes a professional standard of care for Service Provider ’s services, to the fullest extent permitted by law, Service Provider shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Par ties”) from and against any and all liability (including liability for claims, suits, actions, arbitration proceedings, administ rative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, includ ing attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees) arise out of, are a consequence of, or are in any way attributable to, in whole or in part, any negligent or wrongful act, error or omission of Service Provider , or by any individual or entity for which Service Provider is legally liable, including but not limited to officers, agents,
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
8 employees or subcontractors of Service Provider , in the performance of professional services under this Agreement.
(b) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permit ted by law, Service Provider shall indemnify, protect, defend and hold harmless City, and any and all of its employees, official s and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administra tive proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Service Provider, o r by any individual or entity for which Service Provider is legally liable, including but not limited to officers, agents, emplo yees or subcontractors of Service Provider.
(c) Indemnification from Sub -Service Provider s. Service Provider agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every sub-Service Provider or any other person or entity involved by, for, with or on behalf of Service Provider in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Service Provider fails to obtain such indemnity obligation s from others as required herein, Service Provider agrees to be fully responsible according to the terms of this section.
Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a w aiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Service Provider and shall survive the termination of this Agreement or this section.
(d) Limitation of Indemnification. Notwithstanding any provision of this section to the contrary, design professionals are required to defend and inde mnify the City only to the extent permitted by Civil Code Section 2782.8, which limits the liability of a design professional to claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the design professional. The term “design professional,” as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, reg istered professional engineers, professional land surveyors, and the business entities that offer such services in accordance wi th the applicable provisions of the California Business and Professions Code.
(e) City’s Negligence . The provisions of this sec tion do not apply to claims occurring as a result of City’s sole negligence. The provisions of this section shall not release Ci ty from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
9 SECTION 16. INSURANCE.
Service Provider agrees to obtain and maintain in full force and effect during the term of this Agreeme nt the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Service Provider agrees to provide City with copies of required policies upon request.
SECTION 17. ASSIGNMENT.
The expertise and experience of Service Provider are material considerations for this Agreement. City has an interest in the q ualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Service Provid er under this Agreement. In recognition of that interest, Service Provider shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Service Provider’s duties or obligations under this Agreement without the prior written consent of the City. Any attempted assignment shall be ineffective, null and void, and shall constitute a materia l breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 19 “Termination of Agreement.” City acknowledges, however, that Service Provider, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 18. CONTINUITY OF PERSONNEL.
Service Provider shall make every reason able effort to maintain the stability and continuity of Service Provider’s staff and subcontractors, if any, assigned to perform the Services. Service Provider shall notify City of any changes in Service Provider’s staff and subcontractors, if any, assign ed to perform the Services prior to and during any such performance.
SECTION 19. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement , with or without cause, at any time by giving thirty (30) days written notice of termination to Service Provider . In the event such notice is given, Service Provider shall cease immediately all work in progress. (b) Service Provider may terminate this Agreem ent for cause at any time upon thirty (30) days written notice of termination to City. (c) If either Service Provider or City fail t o perform any material obligation under this Agreement, then, in addition to any other remedies, either Service Provider, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Service Provider or City, all property belonging exclusively to City which is in Service Provider’s possession shall be
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10 returned to City. Service Provider shall furnish to City a final invoice for work performed and expenses incurred by Service Provider , prepared as set for th in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the sa me manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
SECTION 20. DEFAULT.
In the event that Service Provider is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Service Provider for any work performed after the date of default. Instead, the City may give notice to Service Provider of the default and the reasons for the default. The notice shall include the timeframe in which Service Provider may cure the defaul t. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Service Provider is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Service Provider does not cure the default, the City may take necessary steps to terminate this Agreement under Section 19 “Termination of Agreement.” Any failure on the part of the City to give notice of the Service Provider’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 21. EXCUSABLE DELAYS.
Service Provider shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Service Provider. Su ch causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, a cts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 22. COOPERATION BY CITY.
All public information, data, r eports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Service Provider in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 23. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
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11 To City: City of Cathedral City
Attn: City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Service Provider: __________________________
__________________________
__________________________
__________________________
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days afte r deposit of the same in the custody of the United States Postal Service.
SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Service Provider represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Service Provider to the performance of its obligations hereunder.
SECTION 25. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shal l have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additio nal funds, consistent with Section 2 7 “Amendment” and the City Manager’s contracting authority under the Cathedral City Municipal Code.
SECTION 26. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 27. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Service Provider and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Cathedral City Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the
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12 requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 28. WAIVER.
Waiver by any Party to this Agreemen t of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Service Provider shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 29. LAW TO GOVERN; VENUE.
This Agreeme nt shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation be tween the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 30. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Ag reement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees , costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including t he attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into betwe en Service Provider and City prior to the execution of this Agreement. No statements, representations or other agreements, whet her oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or un enforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 33. CONFLICTING TERMS.
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13 Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF , the Parties hereto have executed this Agreem ent on the date and year first-above written.
CITY OF CATHEDRAL CITY TERRA NOVA RESEARCH &
PLANNING, INC.
__________________________ _______________________
Charles P. McClendon By:________________________
City Manager Its:________________________
ATTEST: ___________________________
By:________________________
Its:________________________
___________________________
Tracey Hermosillo
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
NOTE: SERVICE PROVIDER’S SIGNATURES SHALL BE DULY NOTARIZED,
AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY
BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION,
OR O THER RULES OR REGULATIONS APPLICABLE TO SERVICE
PROVIDER’S BUSINESS ENTITY.
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
COUNTY OF RIVERSIDE )
On ____________________, 2023, before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared , Name of Signer(s) who proved to me on the basis of satisfactor y evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me t hat he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person (s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On ____________________, 2023, before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared , Name of Signer(s) 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 autho rized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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A-1
EXHIBIT "A"
SCOPE OF SERVICES
Develop up to Two Annexation Scenarios
The first step in developing the Annexation Study will be consultation with City staff on credible scenarios to be considered. Terra Nova will coordinate a project kick -off meeting to go over the history of the Sphere, listen to staff’s perspectives on annexation potential, and discuss the pros and cons of the two scenarios described in our assumptions above. Our scope and budget assume up to two annexation scenarios, which we see as annexation of the entire Sphere of Influence; or annexation of all lands west of Cook Street.
Review 2018 Annexation Study and City Documentation
Terra Nova will review and update the data and assumptions made in 2018, including physical constraints and land use patterns, as they are still valid in many respects today. In addition, the City undertook considerable research and documentation in the preparation of its Sphere of Influence applications, including a fiscal impact analysis. Terra Nova will review these documents, as well as documentation associated with the Messenger annexation in order to develop a baseline of information, and to determine what additional research and data is required.
Land Use and Zoning by Scenario
Terra Nova will work with the City to review and update a land use and zoning map for each of the two annexation scenarios. As described above, the land uses are projected to be equivalent or close to those currently assigned in the County’s General Plan. As described above, the County’s zoning designations are not consistent with its General Plan, and some adjustments may be necessary in order to assure that property owners’ and City expect ations for build out are consistent. These maps will serve as the basis for build out calculations, which are critical to the fiscal impact analysis described below.
Update Physical Constraints and Opportunities Report
Terra Nova will assess both the envir onmental and infrastructure constraints and opportunities within the Sphere. Constraints and opportunities to be updated include roadway infrastructure and potential deficits (on an order of mag nitude basis), water and sanitary sewer, flood control challen ges, provision of municipal services (including quantified need for additional staff), and MSHCP adjacencies and development potential. Additional issue areas may be generated at the kick-off meeting.
Prepare Fiscal Impact Analysis
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A-2
The fiscal impact analysis will be developed based on the constraints and opportunities analysis, and will include both general fund and restricted fund costs and revenues. The analysis will be prepared for each of up to two scenarios. The fiscal impact analysis can be prepared based on a 4-phased development assumption – showing costs and revenues at 5 or 10 year intervals as development occurs, for example – and as a build out analysis. The cost analysis wi ll include both City -provided and County -contracted Police, Fire and recreation services.
Community Outreach
The community of Thousand Palms has been very attentive in the past to the City’s Sphere expansions, including the analysis prepared in 2018. Based on that history, we would recommend a presentation to the Thousand Palms Community Council, once the preliminary analysis of the annexation scenarios has been developed. At this stage, we would not recommend further meetings. Terra Nova will work with City staff in developing a presentation, preparing handout materials and PowerPoint slides, and will assist in a joint presentation, with City staff, to the Community Council.
Draft and Final Annexation Study
The constraints and opportunities analysis and the fiscal impact analysis will be combined into a single document which will include recommendation on future actions. This document will be reviewed and discussed with City staff, edited as necessary, and will be distributed to City Council for their consideration.
Study Session Attendance
Working with City staff, we will assist in the preparation of a staff report and presentation materials for a City Council Study Session. The presentation would summarize the analysis and offer the Council an opportunity to ask questions and discuss next steps, if appropriate.
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B-1
EXHIBIT "B"
COMPENSATION
Annexation Study
Project Budget
City Team Meetings, Internal Meetings, etc. $8,370.00
(30 hrs @ $195./Hr.)
(10 hours @ $160./Hr.)
(8 hrs @ $115./Hr.)
Preparation and Attendance: Community Council Presentation and City Council Presentation (2) $7,020.00
(20 hrs @ $195./Hr.)
(8 hours @ $160./Hr.)
(16 hrs @ $115./Hr.)
Research and Documentation $4,980.00
(10 hrs @ $195./Hr.)
(8 hours @ $160./Hr.)
(20 hrs @ $115./Hr.)
Land Use Scenarios (2) $5,770.00
(6 hrs @ $195./Hr.)
(12 hours @ $160./Hr.)
(12 hrs @ $115./Hr.)
(20 hrs @ $65./Hr.)
Update Physical Constraints and Opportunities Report $5,010.00 (8 hrs @ $195./Hr.)
(30 hrs @ $115./Hr.)
Fiscal Impact Analysis (2 Scenarios) $21,100.00
(40 hrs @ $195./Hr.)
(40 hours @ $160./Hr.)
(60 hrs @ $115./Hr.)
GIS Mapping & Exhibit Preparation $1,300.00
(20 hrs @ $65./Hr.)
Project Management $7,800.00
(40 hrs @ $195./Hr.)
Administrative Support $1,350.00
(30 hrs @ $45./Hr.)
Miscellaneous Office Expenses: copies, data acquisition, etc. $1,000.00
Total Annexation Study Costs $63,700.00
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C-1
EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property whic h may arise from or in connection with the performance of the Services by Service Provider, its agents, representatives or employees. Service Provider shall procure and maintain the following scope and limits of insurance:
Only the following “marked” requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence basis to protect Service Provider and City against liability or claims of liability which may arise out of this Agreement in the amount of one million dollars ($1,0 00,000) per occurrence and subj ect to an annual aggregate of two million dollars ($2,000,000).
Coverage shall be at least as broad as Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). There shal l be no endorsement or modification of the CG L limiting the scope of coverage for either insured vs. additional insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insurance in an amount not l ess than $1,000,000 for injuries, including accidental death, to any one person, and subject to the same minimum for each person, in an amount not less than one million dollars ($1,000,000) for each accident, an d property dam age insurance in an amount of n ot less than one million dollars ($1,000,000). A combined single limit policy with aggregate limits in an amount of not less than $2,000,000 shall be considered equivalent to the said required minimum limits. Coverage shall be at least as broad as Insurance Services Office form number CA 0001 covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the approval of the City.
__X___ Workers’ Compensation Insurance: Workers’ Compensation insurance that includes a minimum of one million dollars ($1,000,000) of employers’ liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of subrogation against the City and i ts respective elected officials, officers, em ployees, agents and representatives. In the event a claim under the provisions of the California Workers’ Compensation Act is filed against City by a bona fide employee of Service Provider participating under t his Agreement, Service Provider is to defend and indemnify the City from such claim.
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C-2
X Professional Liability Insurance: Professional liability insurance appropriate to the Service Provider’s profession in an amount not less than one million dolla rs $1,000,000 per occurrence. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based up on, arising ou t of or related to Services per formed under this Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Service Provider’s services or the termination of this Agreement. During this additional three (3) year period, Service Pro vider shall annually and upon request of the City submit written evidence of this continuous coverage.
B. Other Provisions . Insurance policies requi red by this Ag reement shall contain the following provisions:
1. All Coverages.
a. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either P arty to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt requested, has been given to City.
b. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII.
2. Commercial General Liability and Automobile Liability Coverages.
a. City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liabi lity arising out of activities Service Provider performs; products and completed operations of Service Provider ; premises owned, occupied or used by Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider.
The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees.
b. Service Provider ’s insurance coverage shall be primary insurance with respect t o City, and it s respective elected and appoin ted, its officers, officials, employees and volunteers. Any insurance or self -insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Service P rovider’s insurance.
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C-3
c. Service Provider’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
d. Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.
e. The insurer waives all rights of subrog ation against the City, its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage . Unless the City Manager otherwise agrees in writing, th e insurer shall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may req uire that Service Provider furnish City with copies of original endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Service Provider shall furnish certificates and endorsements from each subcontractor identical to those Service Provider provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City or i ts respective elected or appointed officers, officials, employees and volunteers, or the Service Provider shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required polic y or policies of insurance shall not be construed to limit Service Provider ’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
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Attachment: Cathedral City Services Agreement - Terra Nova Research & Planning (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) PROPOSAL TO PREPARE SPHERE OF INFLUENCE ANNEXATION STUDY Prepared for: City of Cathedral City 68-700 Avenida Lalo Guerrero Cathedral City, CA 92234 Prepared by: Terra Nova Planning & Research, Inc.® 42635 Melanie Place, Suite 101 Palm Desert, CA 92211 January, 2023
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
City of Cathedral City Annexation Study and Phase 2 Annexation Activities Table of Contents I. EXPERIENCE AND QUALIFICATIONS ................................................................................. 4 A. Terra Nova .................................................................................................................. 4 B. Relevant Project Experience ........................................................................................ 5 C. Litigation History, Firm Size and Terminated Contracts ................................................ 8 II. PROJECT APPROACH ...................................................................................................... 10 A. Introduction and Assumptions .................................................................................. 10 B. Approach and Methods ............................................................................................. 11 III. KEY PERSONNEL ............................................................................................................ 14 IV. COST PROPOSAL ............................................................................................................ 16
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) TERRA NOVA PLANNING & RESEARCH, INC.
42635 MELANIE PLACE, SUITE 101, PALM DESERT, CA 92211 (760) 341-4800 January 20, 2023 Mr. Robert Rodriguez Director of Planning/Building City of Cathedral City 68-700 Avenida Lalo Guerrero Cathedral City, CA 92234 RE: Proposal to Prepare an Annexation Study Dear Robert: Terra Nova Planning & Research is pleased to submit this proposal for the preparation of an Annexation Study, as described in the City’s Request for Proposals (RFP) of December 23, 2022. Terra Nova is uniquely qualified to assist the City in this important project. § We prepared the Annexation Study for the City in 2018. § We are extremely familiar with the City’s current Sphere of Influence and surrounding areas. § We prepared fiscal analysis for the Acrisure arena and its surrounding Specific Plan for the City of Palm Desert at the time the arena was proposed. § We have prepared annexation studies, fiscal impact analyses, plans of services and annexation applications for a broad range of annexations in Riverside and San Bernardino counties. The contact person for Terra Nova through the proposal process is Nicole Sauviat Criste. I will also be the City’s prime contact, should we be selected for this project. I can be reached at 760-341-4800, or by email at [email protected]. Terra Nova has the resources and staff to complete the work requested, is currently meeting the City’s insurance requirements, and will continue to do so. We look forward to having the opportunity to discuss our thoughts with you further. If you have any questions or require additional information, please feel free to contact me. Sincerely, Nicole Sauviat Criste Principal
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
City of Cathedral City Annexation Study I. EXPERIENCE AND QUALIFICATIONS A. Terra Nova Terra Nova has been providing planning and environmental services to a wide range of public agencies, including all cities of the Coachella Valley, the County of Riverside, the Towns of Apple Valley and Yucca Valley, the City of San Bernardino, and other agencies, including the Coachella Valley Association of Governments, College of the Desert and the Coachella Valley Water District since 1984. Most recently, Terra Nova completed the City’s General Plan Update, and is currently working to complete its Housing Element. Terra Nova will be responsible for all Annexation Study tasks, and does not propose any additional team members. We have been involved in annexation projects for both the public and private sectors since the beginnings of the firm. Projects have included municipal annexations and sphere of influence amendments, project-driven annexations, and annexation studies that led to City Council decisions not to proceed with annexation. As a result, we understand the process and requirements of the Local Agency Formation Commission (LAFCO), but more importantly the needs and concerns of the annexing jurisdiction. Finally, we at Terra Nova understand the importance and responsibility we have for our projects as if we were the project proponent or the public agency. Our vested personal response assures a high degree of engagement and sensitivity. Our experience allows us to bridge the interests of both the public and private sector and facilitate community and economic development within a properly regulated environment.
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B. Relevant Project Experience The following first describes projects directly relevant to the City’s current RFP, and also provides examples of other similar work which demonstrate the breadth of our experience. As requested in the City’s RFP, references and contract information are provided for each project. City of Cathedral City Annexation Study Terra Nova conducted an analysis of physical constraints, a fiscal impact analysis, and coordinated a meeting with the Thousand Palms Community Council to consider the feasibility of annexing the City’s Sphere of Influence. Terra Nova received substantial support from the City’s Police and Fire Departments, who each provided detailed estimates of the additional services needed to cover the Sphere should it be annexed. Although multiple land use scenarios were considered, ultimately the analysis considered the entire Sphere, as the need to keep Thousand Palms intact and the potential for the land east of Cook Street to offset costs was considered. The scope of work also included a meeting with the Thousand Palms Community Council, attended by several City Council members, where the Mayor spoke to the Community Council about the potential for annexation. The Community Council and residents in attendance spoke at length, generally in opposition to the potential for annexation. At a Study Session following that meeting, where the fiscal impact analysis was presented to the City Council, it was determined that efforts toward annexation should be suspended, and reconsidered at a later date. Client Contact: Mr. Charlie McClendon, City Manager City of Cathedral City 68700 Avenida Lalo Guerrero Cathedral City, CA 92234 Telephone: 760-770-0399 Project Team: Terra Nova: fiscal impact analysis Terra Nova Staff: Nicole Sauviat Criste, Project Manager; Andrea Randall, Senior Planner; Kelly Clark, Associate Planner Contract Period: Project initiated July, 2018. City Council suspended consideration November 2018. Contract Amount: $53,500.00 City of La Quinta Sphere of Influence Fiscal Impact Analysis Terra Nova is currently preparing a fiscal impact analysis for the City’s existing Sphere of Influence, to determine whether annexation should be considered. The primary issue for the City is that due to existing County redevelopment bonding, the City would not receive property tax until at least 2039. This limitation has in the past stymied annexation efforts, as the area is primarily residentially zoned, and will generate limited sales tax revenue. The analysis is considering the potential for transient occupancy tax generated by future vacation rentals which could be developed in this area in the future. The scope of work also includes fiscal analysis of an area east of the existing Sphere, as a potential expansion of the
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
Sphere if the existing Sphere is annexed, and the processing of LAFCo applications for the existing Sphere, if the City Council directs annexation. Client Contact: Ms. Cheri Flores, Planning Manager City of La Quinta 78495 Calle Tampico La Quinta, CA 92253 Telephone: 760-777-7000 Project Team: Terra Nova: fiscal impact analysis Terra Nova Staff: Nicole Sauviat Criste, Project Manager; Kelly Clark, Senior Planner Contract Period: Project initiated October 2022. Draft document due to staff by end of January 2023. Contract Amount: $117,250.00 for all three tasks (Sphere Fiscal, Potential Sphere Fiscal and Annexation processing). City of Palm Desert Northstar Specific Plan Fiscal Analysis The City of Palm Desert was concerned with the fiscal impacts of the development of the Acrisure arena as it related to public safety. Terra Nova was retained to first analyze the likely costs associated with the City’s providing police and fire coverage for events at the arena. The City’s concern was that the County Sherriff and Fire services were not sufficient, and that the City would be called in to assist. That work was expanded by the City to include a fiscal analysis of the potential costs and revenues associated with the Northstar Specific Plan’s build out, of which the arena is a part. The City continues to monitor activities associated with the arena, but has not proceeded further. Client Contact: Mr. Eric Ceja, Director of Economic Development City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Telephone: 760-346-0611 Project Team: Terra Nova: fiscal impact analysis Terra Nova Staff: Nicole Sauviat Criste, Project Manager; Andrea Randall, Senior Planner Contract Period: The initial analysis was conducted in April of 2021. The fiscal analysis of the Northstar Specific Plan was conducted between November, 2021 and February, 2022. Contract Amount: Both efforts together totaled $32,000.00 Town of Apple Valley “Modified Golden Triangle” Annexation Terra Nova filed an annexation application, fiscal impact analysis and plan of services for the annexation of 1,300± acres at the northwest corner of the Town of Apple Valley. This effort also included the preparation of an EIR Addendum for the project. The annexation was initially part of the Town’s General Plan Update, for which we also prepared documentation (please see below), but was rejected by voters in 2010. The 2017 annexation focused on a portion of the original Golden Triangle annexation, specifically on lands adjacent to the Interstate 15 corridor and the Dale Evans Parkway interchange, and was intended to expand the Town’s economic development potential in the future by adding potential
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
commercial and business park property. The annexation was successful. A subsequent effort, required by LAFCo, to annex the balance of the Golden Triangle failed in 2021, due to a protest vote by the residents of that area. Our project manager for the Town, Ms. Lori Lamson, has retired but Mr. Acevedo was involved as well. Client Contact: Mr. Orlando Acevedo, Assistant Town Manager Town of Apple Valley 14955 Dale Evans Parkway Apple Valley, CA 92307 Telephone: 760-240-7000 Project Team: Terra Nova: prime contractor, application materials, EIR Addendum, plan of services and fiscal impact analysis; AMEC Foster Wheeler (now Wood Environmental): biological resources; Urban Crossroads: traffic analysis. Terra Nova Staff: Nicole Sauviat Criste, Project Manager; Andrea Randall, Senior Planner; Kelly Clark, Associate Planner Contract Period: Project initiated July, 2017. Annexation completed February 2019. Contract Amount: $55,580.00 Town of Apple Valley General Plan and Golden Triangle Annexation Terra Nova was retained to prepare the Town’s first General Plan update since incorporation, and to prepare all materials associated with two annexations. The first, dubbed the “Golden Triangle,” covered a 2,775± acre area at the northwest boundary of the Town; while the second, added during the process, involved 805± acres at the northeast boundary of the Town. The General Plan EIR was structured to include separate and discrete discussions of each annexation area, as well as cumulative analyses of all three projects (the General Plan update and the two annexations). The Golden Triangle annexation was rejected during the protest hearing due to resident opposition. Our project manager for the Town, Ms. Lori Lamson, has retired but Mr. Acevedo was involved as well. Client Contact: Mr. Orlando Acevedo, Assistant Town Manager Town of Apple Valley 14955 Dale Evans Parkway Apple Valley, CA 92307 Telephone: 760-240-7000 Project Team: Terra Nova: prime contractor, General Plan and EIR, application materials, plan of services and fiscal impact analysis; AMEC Foster Wheeler (now Wood Environmental): biological resources; CRM Tech: cultural resources; Urban Crossroads: traffic and noise analysis; Earth System International: geotechnical and flooding analysis; Aerial Information Systems: GIS mapping
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
Terra Nova Staff: Nicole Sauviat Criste, Project Manager; Andrea Randall, Senior Planner; Laura Alstadt, Senior Planner Contract Period: Project initiated March, 2007. Adopted by Town Council August, 2009. Contract Amount: $766,685.00 City of Palm Desert Sun City-Bermuda Dunes Annexation Study Terra Nova prepared an annexation study that focused on the fiscal impacts of annexing the Sun City Palm Desert Community, located north of Interstate 10 and east of Washington Street as well as lands to the west. Two scenarios were considered, one extending to the east of the Classic Club, and one including the Classic Club. Following consultation with LAFCO, the Bermuda Dunes community of interest was also considered. At the time, LAFCO indicated that it would not support Sun City’s annexation without the inclusion of Bermuda Dunes. The analysis showed that the City of Palm Desert would be negatively impacted from a fiscal perspective, and the City Council opted to suspend efforts toward annexation. Ms. Lauri Aylaian, the City Manager at the time, has since retired, but Mr. Ceja was involved as well. Client Contact: Mr. Eric Ceja, Director of Economic Development City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Telephone: 760-346-0611 Project Team: Terra Nova: prime contractor Terra Nova Staff: Nicole Sauviat Criste, Project Manager; Andrea Randall, Senior Planner Contract Period: The initial analysis was conducted between November, 2011 and February, 2012. The addition of Bermuda Dunes was considered between June and September of 2013. Contract Amount: Both efforts together totaled $47,565.00 Other Relevant Projects In addition to the projects described above, Terra Nova has completed a number of free-standing fiscal impact analyses, including the fiscal impact analysis for the Coachella Valley MSHCP, which analysed the loss of revenue stemming from lands to be placed in conservation as a result of the MSHCP. We also completed the fiscal impact analysis for the new town of Paradise Valley, proposed east of the Coachella Valley, which analysed the build out of approximately 12,000 acres with a mix of residential, commercial and institutional land uses in unincorporated Riverside County. C. Litigation History, Firm Size and Terminated Contracts Litigation History Terra Nova has not been involved in any litigation regarding a General Plan or Specific Plan in the last five years. On CEQA projects, Terra Nova prepared an EIR for a residential project in Indio. After its approval, a neighbor sued the City, claiming inadequate CEQA analysis, among other issues. The judge
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
ruled against the neighbor on all matters, and the suit was dismissed in 2022. We have not been involved in any other CEQA projects that resulted in legal action in this time period. Firm Size Terra Nova is currently comprised of 7 employees, including 4 planners, 1 graphics/GIS specialist, and two administrative staff. Over the past seven years, we have fluctuated between 7 and 9 employees. Terminated Contracts Terra Nova has not had any contracts terminated, either in part or in full in the last five years.
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
City of Cathedral City Annexation Study II. PROJECT APPROACH A. Introduction and Assumptions The Cathedral City Annexation Study consists of an evaluation of the potential constraints and opportunities associated with the annexing a portion or all of the City’s current Sphere of Influence. In addition, based on our understanding of the RFP, our knowledge of the area and our telephone conversation with City staff, we have made the following broad assumptions. 1. Based on LAFCo’s and the Thousand Palms Community Council’s past input, only two potential annexation scenarios are realistic: all lands west of Cook Street, and all lands within the Sphere. This assumption is based on both the input by the Community Council, and LAFCo’s explicit direction that Thousand Palms be kept whole if the City proceeds with annexation. The lands east of Cook Street are not included in this area, but are not contiguous to existing City boundaries, and therefore would require the annexation of lands to the west in order to become part of the City. Our experience with LAFCo in recent years has been that they will not consider partial annexations without substantial support. For example, it is unlikely that LAFCo would consider a narrow strip of annexation along Varner Road from existing City limits, in order to reach lands east of Cook, but would rather direct that the entire Sphere be annexed. 2. The City wishes to consider contracting for County services such as fire and police in the Sphere area if it were to be annexed. 3. The City’s intent is to maintain equivalent or similar land use and zoning designations on lands within the Sphere. The closest City land use/zone when compared to the County’s land use or zone will be applied to any area considered for annexation, and will be the basis for build out analysis. 4. The County has never completed its zoning consistency with its General Plan. Therefore, it cannot be assumed that the zone currently occurring on Sphere properties is consistent with the General Plan land use designation. These discrepancies must be identified and compromises reached as part of the Annexation Study.
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
5. We recommend, and have included in our scope, that the City, including both staff and Council members, request to meet with the Thousand Palms Community Council, to once again gage the level of support or opposition currently likely to occur if annexation is undertaken. 6. Although much improved in recent years, much of the County’s roadway system in the Sphere was built to County standards, which are not equivalent to City standards. 7. We would rely on City staff to assist with the development of Police and Fire Department costs, and would reach out to the County to secure cost estimates for continued County services for police and fire. 8. Regional flood control is an on-going issue due to the substantial flows from the north. B. Approach and Methods General Approach Terra Nova relies on close and on-going consultation and coordination within the project team, and considers the City integral to the Team. Terra Nova and City staff will prepare a refined strategic plan outlining project tasks and milestones, including identifying issues, collecting data and information, developing and updating baseline mapping compatible with City capabilities, and scheduling the development and review of documents. Communications and Coordination Communications with City staff will be accomplished through regular visits to and meetings at City Hall or by Zoom, and by email and telephone. Terra Nova’s administrative services function will relieve City staff of much of the administrative effort associated with this project, including document transmittals, resolutions and staff reports. Terra Nova will also establish a cloud-based Sharepoint Site that will include project calendars, resource and document folders and other resources that will facilitate information sharing and project management. Task and Cost Controls This proposal relies on the base data we prepared for the 2018 Annexation Study to the greatest extent possible, in order to limit costs. Much of the base data previously collected will be updated for this effort. In addition, GIS land use data will be used to assure accurate acreages of vacant and developed lands, which form the basis of the fiscal analysis. As stated above, we recommend that the City equivalents of the County zoning designations be assumed, as LAFCo would assume that the City would honor land uses currently allowed in the County should the City annex. A task-based cost tracking and billing spreadsheet will be established for the project and will provide the City with an easy to follow tool to track project progress and costs, providing task-based monthly reporting and staff hours-based invoicing identifying billings by task to date, for the month and budget remaining. In this manner, Terra Nova and the City will always know that we are on track and on budget.
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
Annexation Study Tasks Develop up to Two Annexation Scenarios The first step in developing the Annexation Study will be consultation with City staff on credible scenarios to be considered. Terra Nova will coordinate a project kick-off meeting to go over the history of the Sphere, listen to staff’s perspectives on annexation potential, and discuss the pros and cons of the two scenarios described in our assumptions above. Our scope and budget assume up to two annexation scenarios, which we see as annexation of the entire Sphere of Influence; or annexation of all lands west of Cook Street. Review 2018 Annexation Study and City Documentation Terra Nova will review and update the data and assumptions made in 2018, including physical constraints and land use patterns, as they are still valid in many respects today. In addition, the City undertook considerable research and documentation in the preparation of its Sphere of Influence applications, including a fiscal impact analysis. Terra Nova will review these documents, as well as documentation associated with the Messenger annexation in order to develop a baseline of information, and to determine what additional research and data is required. Land Use and Zoning by Scenario Terra Nova will work with the City to review and update a land use and zoning map for each of the two annexation scenarios. As described above, the land uses are projected to be equivalent or close to those currently assigned in the County’s General Plan. As described above, the County’s zoning designations are not consistent with its General Plan, and some adjustments may be necessary in order to assure that property owners’ and City expectations for build out are consistent. These maps will serve as the basis for build out calculations, which are critical to the fiscal impact analysis described below. Update Physical Constraints and Opportunities Report Terra Nova will assess both the environmental and infrastructure constraints and opportunities within the Sphere. Constraints and opportunities to be updated include roadway infrastructure and potential deficits (on an order of magnitude basis), water and sanitary sewer, flood control challenges, provision of municipal services (including quantified need for additional staff), and MSHCP adjacencies and development potential. Additional issue areas may be generated at the kick-off meeting. Prepare Fiscal Impact Analysis The fiscal impact analysis will be developed based on the constraints and opportunities analysis, and will include both general fund and restricted fund costs and revenues. The analysis will be prepared for each of up to two scenarios. The fiscal impact analysis can be prepared based on a 4-phased development assumption – showing costs and revenues at 5 or 10 year intervals as development occurs, for example – and as a build out analysis. The cost analysis will include both City-provided and County-contracted Police, Fire and recreation services.
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
Community Outreach The community of Thousand Palms has been very attentive in the past to the City’s Sphere expansions, including the analysis prepared in 2018. Based on that history, we would recommend a presentation to the Thousand Palms Community Council, once the preliminary analysis of the annexation scenarios has been developed. At this stage, we would not recommend further meetings. Terra Nova will work with City staff in developing a presentation, preparing handout materials and PowerPoint slides, and will assist in a joint presentation, with City staff, to the Community Council. Draft and Final Annexation Study The constraints and opportunities analysis and the fiscal impact analysis will be combined into a single document which will include recommendation on future actions. This document will be reviewed and discussed with City staff, edited as necessary, and will be distributed to City Council for their consideration. Study Session Attendance Working with City staff, we will assist in the preparation of a staff report and presentation materials for a City Council Study Session. The presentation would summarize the analysis and offer the Council an opportunity to ask questions and discuss next steps, if appropriate.
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
City of Cathedral City Annexation Study III. KEY PERSONNEL The following section provides brief resumes of both Terra Nova key personnel. All personnel listed will be fully involved in the project, and have availability to perform the scope of work detailed in this proposal. We do not anticipate the need for any changes or substitutions. Nicole Sauviat Criste, Principal Ms. Criste joined Terra Nova in 1985, coming from a career in publishing, marketing, market research and analysis. She has managed the preparation of numerous General Plans, Specific Plans, Zoning Ordinances and other projects, including the La Quinta and Apple Valley General Plans, the Palm Springs Museum Market Plaza Specific Plan and the 5,000-acre North Apple Valley Industrial Specific Plan. She is the author of the award-winning Apple Valley Climate Action Plan and managed the CVAG Green for Life Program. Her extensive work in socio-economic modeling and fiscal impact analysis will be key to the success of the Cathedral City Annexation Study effort. She managed the 2018 effort for the City, the fiscal analyses for the City of Palm Desert, and the 1,300 acre Apple Valley Annexation project, and conducted the fiscal impact analysis for the Coachella Valley Multiple Species Habitat Conservation Plan. Ms. Criste is a graduate of Scripps College with a Bachelor of Arts degree in European Studies. She is a member of the American Planning Association. Ms. Criste will be the City’s primary point of contact and will serve as Project Manager for this project. Kelly Clark, Senior Planner Ms. Clark joined Terra Nova in 2011. She is a graduate of the University of California, Berkeley with a Bachelor of Science degree in Conservation and Resource Studies. Ms. Clark’s coursework emphasized sustainable urban development, environmental policy and community design.
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
She has assisted in the preparation of the Green Building, Benchmarking and Energy Management Programs for CVAG’s Green for Life project, the current update to the Apple Valley Climate Action Plan and other similar projects. Ms. Clark has also provided research and analysis required for CEQA and NEPA documents for various development projects throughout the Coachella Valley. She contributed to the preparation of the College of the Desert Indio Educational Center EIR and expansion Mitigated Negative Declaration. She played a key role in the SCAG/Rancho Cucamonga Foothill Boulevard BRT corridor study, and has been intimately involved in land use and socio-economic research, public outreach and participation, and the collection of data and information. Dominique Camps, Assistant Planner Ms. Camps has been with Terra Nova since 2022. She holds a Master of City Planning degree from the University of Manitoba, and a Bachelor of Fine Art degree in Art History and Studio Art from Concordia University in Montreal, Canada. Prior to joining Terra Nova, Ms. Camps worked for Open North in Canada, researching open data options for small cities. Her work included data collection, surveys, interviews and document drafting for an initiative aimed at improving transparency and access at the municipal level. Since joining Terra Nova, Ms. Camps has worked on various CEQA documents, as well as research and documentation of air quality and GHG modeling and statistical analysis for land use projects throughout the Coachella Valley.
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
City of Cathedral City Annexation Study & Phase 2 Annexation Activities IV. COST PROPOSAL The following cost proposal has been prepared based on the efficiencies that can be gained from updating the documents and models prepared for Cathedral City in 2018. The cost proposal is presented as a not-to-exceed cost, based on hours expended to complete the scope of work.
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
Annexation Study Project Budget City Team Meetings, Internal Meetings, etc. $8,370.00 (30 hrs @ $195./Hr.) (10 hours @ $160./Hr.) (8 hrs @ $115./Hr.) Preparation and Attendance: Community Council Presentation and City Council Presentation (2) $7,020.00 (20 hrs @ $195./Hr.) (8 hours @ $160./Hr.) (16 hrs @ $115./Hr.) Research and Documentation $4,980.00 (10 hrs @ $195./Hr.) (8 hours @ $160./Hr.) (20 hrs @ $115./Hr.) Land Use Scenarios (2) $5,770.00 (6 hrs @ $195./Hr.) (12 hours @ $160./Hr.) (12 hrs @ $115./Hr.) (20 hrs @ $65./Hr.) Update Physical Constraints and Opportunities Report $5,010.00 (8 hrs @ $195./Hr.) (30 hrs @ $115./Hr.) Fiscal Impact Analysis (2 Scenarios) $21,100.00 (40 hrs @ $195./Hr.) (40 hours @ $160./Hr.) (60 hrs @ $115./Hr.) GIS Mapping & Exhibit Preparation $1,300.00 (20 hrs @ $65./Hr.) Project Management $7,800.00 (40 hrs @ $195./Hr.) Administrative Support $1,350.00 (30 hrs @ $45./Hr.) Miscellaneous Office Expenses: copies, data acquisition, etc. $1,000.00 Total Annexation Study Costs $63,700.00
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis) Terra Nova/City of Cathedral City Annexation Study
Terra Nova Fee Schedule Terra Nova invoices its clients on a cost-basis using an hourly billing system. The scope of each planning effort is typically broken down by task and assigned estimated necessary staff time and the applicable hourly rate. Reimbursable expenses are charged on a cost basis, except where otherwise indicated. Clients are invoiced on a monthly basis. STANDARD FEE SCHEDULE 2023 Terra Nova Staff Hourly Rate Principal Planner $ 195.00 Senior Planner $ 160.00 Associate Planner $ 140.00 Assistant Planner $ 115.00 Media Specialist $ 85.00 Graphic Design/GIS Specialist $ 65.00 Administrative Assistant $ 45.00 REIMBURSABLES Photo Copies (8.5” X 11” BW) $ 0.15 ea. (8.5” X 11” Color) $ 0.30 ea. (11” X 17” BW) $ 0.30 ea. (11” X 17” Color) $ 0.60 ea. Large Format Plots BW $ 1.00/S.F. Color $ 5.00/SF Reproduction, Special photographic services, document printing, aerial photogrammetry, postage, etc. Cost
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Attachment: Terra Nova Planning & Reserch Proposal (3647 : Contract for 1000 Palms Annexation Fiscal Analysis)
Cathedral City Page 1 of 4 Printed on 3/2/2023
Staff Report
City Council
Item No. 7.B
Meeting Date: March 8, 2023
From: John Corella, Director of Engineering/Public Works Title: Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects
City Council
RECOMMENDATION:
To approve a contract with Petrochem Materials Innovation, LLC. for $1,038,633.92 to supply and apply Rubber Emulsion Aggregate Slurry (REAS) on La Pasada Neighborhood streets, Avenida Maravilla, Avenida La Paz, Avenida La Vista, and Date Palm Drive, including traffic control, crack seal and striping replacement; and, approve a fifteen percent (15%) contingency in the amount of $155,796.08 for unforeseeable construction costs, making the total encumbrance $1,194,430; and, authorize the City Manager to execute the required contract documents.
BACKGROUND:
Since 2015, the City of Cathedral City has used Rubberized Emulsion Aggregate Slurry (REAS) as the primary pavement maintenance surface treatment to preserve the asphalt on public streets because of its dur ability and longevity. The City utilizes REAS to preserve streets reconstructed five to seven years ago and to prolong older streets needing reconstruction in the next five to seven years.
In addition, the City has been able to “piggyback” and secure the lowest prices available for REAS by contracting with Petrochem Materials Innovation (PMI) and receiv e the same prices as the City of Los Angeles’ multi -year bid pricing structure contract. By piggybacking on City of Los Angeles’ contract, the City receive s the same unit price per gallon for PMI’s material and equipment as the City of Los Angeles; thereby providing significant savings for Cathedral City.
DISCUSSION:
Staff is proposing to apply REAS on the following streets:
• La Pasada Neighborhood streets.
• Avenida Maravilla from Vista Chino to Ramon Road.
• Avenida La Paz from Vista Chino to 30th Avenue.
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• Avenida La Vista from Adelina Road to 30th Avenue.
• Date Palm Drive from Varner Road to the I-10 Interchange.
Maps of the REAS application areas are attached to this Staff Report.
La Pasada Neighborhood
The scope of work in the La Pasada Neighborhood will include Type II and Type III REAS according to the existing condition of the roads. Crack sealing treatment will precede the REAS applications, and the s treet striping and marking will occur after the REAS work. This work is included in the FY 22 -23 CIP budget and is proposed to be funded with Senate Bill ( SB)-1/Road Maintenance and Rehabilitation Account ( SB- 1/RMRA) funding.
Avenida Maravilla, Avenida La Paz, and Avenida La Vista The scope of work in Avenida Maravilla, Avenida La Paz and Avenida La Vista will include crack seal, Type II REAS application and the installation of street striping and markings. The REAS treatment of these streets is included i n the FY 22-23 CIP Budget and is proposed to be funded from the City’s Maintenance of Effort (MOE) account in the City’s General Fund.
Date Palm Drive (I-10 Interchange to Varner Road)
Date Palm Drive from Varner Road to the I -10 Interchange was proposed to be completed within the FY 23-24 and is now rescheduled for the FY 22-23 REAS Project.
The scope of work will include crack seal, Type II REAS application and the installation of street striping and markings. This segment of Date Palm Drive is proposed to be funded from the City’s MOE account from the City’s General Fund,
PMI has evaluated the condition of the proposed streets with City Staff and has determined the REAS application will have an average spread ratio of approximately eleven square feet per gallon (11 Sq. Ft./gallon). Based on this evaluation and subsequent calculations, PMI prepared a cost estimate that includes the price of the slurry, machinery, and labor. The cost estimate also includes traffic control, notice to residents, crack seal and striping replacement.
City Staff and PMI will coordinate with local utilities and service providers, such as Burrtec and Sunline Transit, to accommodate service schedules with the work to be performed.
Staff requests City Council approve a contrac t with Petrochem Materials Innovation, LLC. For:
• $1,038,633.92 to supply and apply REAS on the La Pasada Neighborhood streets, Avenida Maravilla, Avenida La Paz, Avenida La Vista and Date Palm Drive, including traffic control, crack seal and striping replacement, • fifteen percent (15%) contingency in the amount of $155,795.08 for unforeseeable construction costs,
• for an encumbrance totaling $1,194,429; and,
• authorize the City Manager to execute the required contract documents.
ENVIRONMENTAL ANALYSIS:
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No environmental impact. A slurry project is Categorically Exempt as it involves work on existing streets and is listed as a Class 1 Exemption under CEQA Guidelines §15301(c).
FISCAL IMPACT:
FY 2022-23 Capital Improvement Program (CIP) Plan
SB-1/RMRA Funding
La Pasada Neighborhood Street Rehabilitation Project
The FY 22-23 CIP amount of $650,000 from SB -1/RMRA funds was estimated for the work within the La Pasada Neighborhood Street Rehab Project. PMI ’s proposal for this Project is in the amount of $424,0 09.35. Staff recommends including a 15% contingency of $63,601.65 for unforeseeable construction condition for a total estimated construction cost of $487,611.
MOE Funding
Avenida Maravilla, Avenida La Paz/La Vista, and Date Palm Drive Project
PMI’s pro posal for Avenida Maravilla , Avenida La Paz/La Vista, and the Date Palm Drive REAS Project is in the amount of $ 614,624.57. Staff also proposes including a 15% contingency of $92,194.43 for the Project for a total estimated construction cost of $706,819. The CIP FYs 2 2-23 budgeted amounts for the four Projects is $785,000 with General Fund (MOE) funds available for these Projects.
The overall PMI proposal to complete the FY 22-23 REAS Projects is $1,038,633.92.
The total 15% contingency is $155,796.08, and the total estimated cost of the FY 22-23 REAS Projects is $1,194,430 as shown in the table below.
Project Funding
Source
CIP
Budget
PMI
Estimated
Amount
15%
Contingency
Total
La Pasada
Neighborhood
SB-1/RMRA
Fund 248
$650,000 $424,009.35 $63,601.65 $487,611
Avenida
Maravilla
FY 22-23
MOE
Fund 100
$280,000 $273,440.40 $41,016.60 $314,457
Avenida La
Vista/La Paz
FY 22-23
MOE
Fund 100
$225,000 $211,423.62 $31,713.38 $243,137
Date Palm
Drive
FY 22-23
MOE
Fund 100
$280,000 $129,760.55 $19,464.45 $149,225
TOTALs $1,435,000 $1,038,633.92 $155,796.08 $1,194,430
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ATTACHMENTS:
Project Area Map
PMI Cost Estimate
PMI Agreement
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OADAVENIDA DEL PUEBLO
REAS
AVENIDA MARAVILLA
PROJECT AREA
AVENIDA MARAVILLA
AVENIDA MARAVILLA
AVENIDA MARAVILLA
SAN MARTIN ST
AVENIDA MARAVILLA
DESCANSO CIRWALKER ST
AVENIDA EL PUEBLO
AVENIDA CONDENSA
AVENIDA VALDEZ
VALENCIA ST
30TH AVE
VISTA CHINO
PASADA RD
LOS GATOS RD
ENCI
NITAS RD
EMPALMO RD
ESPADA RD
ESTIO RD
PELADORA RD
TACHEVAH DR
CONCEPCION RD
TORTUGA RD
HERMOSILLO RD
RISUENO RD
DURANGO RD
VERANO RD
PERLITA RD
VEGA RD
WALKER ST
CORTA RD
ALCITA RD
MCCALLUM WAY
BARISTO RD
ALISO RD
RAMON RD
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Attachment: Project Area Map (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects) REAS
AVENIDA LA PAZ
PROJECT AREA
AVENIDA LA PAZ
LANDAU BLVD
AVENIDA LA PAZ
LANDAU BLVD
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Attachment: Project Area Map (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects) REAS
AVENIDA LA VISTA
PROJECT AREA
DATE PALM DR
AV
ENI
DA L
A V
ISTA
AV
ENI
DA
LA
V
ISTA
DA
TE
PAL
M
DR
HO
RIZ
ON
RDAV
ENI
DA P
RIM
AVE
RA
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Attachment: Project Area Map (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects) REAS
DATE PALM DRIVE
PROJECT AREA
DATE PALM DR
VARNE
R RD
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City of Cathedral City
Summary of Estimate Charges
Central Mix REAS Type II & III
Quote no:
23-09 QTY U/M Unit Price Days Total
*Material Type II REAS 54,748 GAL $2.22 6 $121,540.56
Type III REAS 34,168 GAL $2.22 $75,852.96
*Freight Delivery 244Miles ($3/mile) 38 LOAD $732.00 $27,816.00 Applicator Trucks ($252/per hr) (2Trucks) 96 HR $252.00 $24,192.00 Tanker Rental (4) 38 LOAD $200.00 $7,600.00
Service Haul Trucks (4) 36 EA $200.00 $7,200.00
Slurry Box 6 EA $250.00 $1,500.00
Slurry Pump 6 EA $500.00 $3,000.00
Sevice Labor crew(13) $110 per hr / per person @ 8hr/day 528 HR $110.00 $58,080.00 Supervisor 6 DAY $1,000.00 $6,000.00
Per Diem ($256 per person/ per day) 76 DAY $256.00 $19,456.00 Traffic Control equipment 6 DAY $1,500.00 $9,000.00
Sweeping (Subcontract) 56 HR $300.00 $16,800.00
Door Hanger 1 EA $300.00 $300.00
Striping - Chrisp Co 1 LS $7,633.00 $7,633.00
Crack Seal - Rubberized 1 LS $14,083.00 $14,083.00
Project Bonds 1 LS $4,250.00 $4,250.00
$404,303.52
Sales Tax* 8.75% $19,705.83
Subtotal:
La Pasada Neighborhood
$424,009.35Total
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QTY U/M Unit Price Days Total
*Material Type II REAS 46,898 GAL $2.22 3 $104,113.56
*Freight Delivery 244Miles ($3/mile) 18 LOAD $732.00 $13,176.00 Applicator Trucks ($252/per hr) (2Trucks) 48 HR $252.00 $12,096.00 Tanker Rental (4) 18 LOAD $200.00 $3,600.00
Service Haul Trucks (4) 18 EA $200.00 $3,600.00
Slurry Box 3 EA $250.00 $750.00
Slurry Pump 3 EA $500.00 $1,500.00
Sevice Labor crew(13) $110 per hr / per person @ 8hr/day 270 HR $110.00 $29,700.00 Supervisor 3 DAY $1,000.00 $3,000.00
Per Diem ($256 per person/ per day) 39 DAY $256.00 $9,984.00 Traffic Control equipment 3 DAY $1,500.00 $4,500.00
Sweeping (Subcontract) 32 HR $300.00 $9,600.00
Door Hanger 1 EA $300.00 $300.00
Striping - Chrisp Co 1 LS $37,733.00 $37,733.00
Crack Seal - Rubberized 1 LS $26,875.00 $26,875.00
Project Bonds 1 LS $2,650.00 $2,650.00
$263,177.56
Sales Tax* 8.75% $10,262.84
Avenida Maravilla
Subtotal:
$273,440.40Total
QTY U/M Unit Price Days Total
*Material Type II REAS 18,733 GAL $2.22 2 $41,587.26
*Freight Delivery 244Miles ($3/mile) 8 LOAD $732.00 $5,856.00 Applicator Trucks ($252/per hr) (2Trucks) 32 HR $252.00 $8,064.00 Tanker Rental (4) 8 LOAD $200.00 $1,600.00
Service Haul Trucks (4) 12 EA $200.00 $2,400.00
Slurry Box 2 EA $250.00 $500.00
Slurry Pump 2 EA $500.00 $1,000.00
Sevice Labor crew(13) $110 per hr / per person @ 8hr/day 180 HR $110.00 $19,800.00 Supervisor 2 DAY $1,000.00 $2,000.00
Per Diem ($256 per person/ per day) 26 DAY $256.00 $6,656.00 Traffic Control equipment 2 DAY $1,500.00 $3,000.00
Sweeping (Subcontract) 16 HR $300.00 $4,800.00
Traffic Control Plan 2 EA $200.00 $400.00
CMS Boards 20 EA $225.00 $4,500.00
Striping - Chrisp Co 1 LS $18,813.00 $18,813.00
Crack Seal - Rubberized 1 LS $3,333.00 $3,333.00
Project Bonds 1 LS $1,300.00 $1,300.00
$125,609.26
Sales Tax* 8.75% $4,151.29
Date Palm (I-10 to Varner)
Subtotal:
$129,760.55Total
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QTY U/M Unit Price Days Total
*Material Type II REAS 40,352 GAL $2.22 2 $89,581.44
*Freight Delivery 244Miles ($3/mile) 16 LOAD $732.00 $11,712.00 Applicator Trucks ($252/per hr) (2Trucks) 32 HR $252.00 $8,064.00 Tanker Rental (4) 16 LOAD $200.00 $3,200.00
Service Haul Trucks (4) 12 EA $200.00 $2,400.00
Slurry Box 2 EA $250.00 $500.00
Slurry Pump 2 EA $500.00 $1,000.00
Sevice Labor crew(13) $110 per hr / per person @ 8hr/day 180 HR $110.00 $19,800.00 Supervisor 2 DAY $1,000.00 $2,000.00
Per Diem ($256 per person/ per day) 26 DAY $256.00 $6,656.00 Traffic Control equipment 2 DAY $1,500.00 $3,000.00
Sweeping (Subcontract) 24 HR $300.00 $7,200.00
Striping - Chrisp Co 1 LS $3,832.00 $3,832.00
Crack Seal - Rubberized 1 LS $41,495.00 $41,495.00
Project Bonds 1 LS $2,120.00 $2,120.00
$202,560.44
Sales Tax* 8.75% $8,863.18
Avenida La Vista, Avenida La Paz, Horizon Rd and Adelina Rd Subtotal:
$211,423.62Total
Total Estimated Charges ( Included Sales Tax)
Estimate good through June 30, 2023
$1,038,633.92
Prices Includes: Bonds, Central Mix REAS, transportation of material, Traffic Control, Traffic control plans for Date Palm only, (2) CMS Boards, posting and notifying, sweeping, crack sealing, striping removals and install in paint (2) coats 7 days apart, equipment and labor for application of approximately 160,732 gallons of Type II and approximately 34,168 gallons of Type III.
* La Posada neighborhood, Avenida Maravilla, Avenida La Vista, Avenida La Paz, Date Palm (I -10 to Varner), Horrizon Rd and Adelina Rd
**Type III on various street within La Posada neighborhood only
Prices Exclude: Any asphalt repairs, weed kill, weekend work
The foregoing quotation is subject to all the Terms and conditions set forth in PMI’s Master Terms and Conditions and the application for open business credit agreement entered into by and between Petrochem Materials Innovation, LLC. and customer. If terms and conditions are not attached, please call our office
Name: Vicki Nguyen Signature: Date: 2/9/2023_____
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Master Terms and Conditions
1. Binding Agreement. The following terms and conditions constitute a binding agreement (“Agreement”) effective as of July 1 , 2015 (“Effective Date”) by and between Petrochem Materials Innovation, LLC, a California limited liability company (“Company”) and the undersigned cu stomer (“Customer”) and govern all goods sold and all Equipment (as defined hereinafter) rented, leased or provided by Company to Customer and shall be deemed to be incorporated in all invoices, purchase orders, price quotations and shipping confirmations. Company and Custome r are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.” For purposes of this Agreement the term “Equipment” shall mean all trucks, trailers, tractors, pumpers, tankers, tanks, m ixers, vehicles and t ools. Nothing contained in any purchase order, memoranda or other writing submitted by Customer to Company shall modify, amend or supersede this Agreement or any portion thereof. Customer’s submission of any provisions that are incons istent, in conflict with or create any ambiguity with this Agreement or any portion thereof are rejected. Company’s failure to object to any different terms or conditions shall not constitute acceptance or approval by Company.
2. Quotations and Pricing. All price quotations provided by Company to Customer shall only be valid for the duration and project specified in the written quotation provided by Company. Company reserves the right in its sole and absolute discretion to decline to quote or sell to Cus tomer. Company shall not be liable for any refusal to quote Customer or rejection of any offer to purchase by Customer.
Any request for quotation by Customer shall constitute a representation that Customer is solvent. All requests for quotation shall specify the name and address of the project where the goods and Equipment will be used, name and address of the original contractor, name and address of the public agency and any other information reasonably requested by Company to enable Company to serve a P reliminary Notice or Stop Notice pursuant to the California Civil Code. Company’s issuance of a quotation to Customer shall not obligate Company to provide any future quotations to Customer. Company reserves the right to require Customer to adhere to quality control measures imposed by Company in its sole and absolute discretion as a condition of accepting any offer to purchase by Customer and/or delivering goods and/or renting Equipment to the Customer. The parties agree that the foregoing provision is reasonable based on the need to maintain the quality of the goods, their application, the reputation of the brand and to maintain public safety. Customer shall be free to resell the goods purchased from Company at any price selected by Customer. The Equipment identified in any price quotation is subject to availability. Unless expressly provided in any price quotation, the prices in the quotation do not include an operator(s). The prices set forth in any price quotation will be charged from the time the Equipment leaves Company’s facility until it is returned, without proration for partial days and without regard as to whether the Equipment is actually used unless specifically provided otherwise in the applicable price quotation.
3. Delivery and Risk of Loss.
a. If the Company delivers the goods, delivery shall take place and all risk of loss shall pass when Company delivers the goods to the project and they pass the last flange on Company’s truck or trailer. If the Customer or its representative pi ck up the goods, deli very and all risk of loss shall pass when the goods pass the last flange on Company’s piping at Company’s plant. Company shall have the right to allocate goods to its customers pro rata in the event the Company experiences a shortage o f goods. All claims for defective goods shall be made within ten (10)
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calendar days of delivery. Failure to make a claim within that time shall operate as unequivocal acceptance and waiver of all claims.
b. Delivery of the Equipment from Company to Customer shall take place when the Equipment leaves the gate at Company’s South Gate or El Cajon facilities, as applicable, and shall not be deemed to be returned until the Equipment is delivered back inside of the gate at Company’s South Gate or El Cajon facilities, as applicable, in the same condition as when the Equipment left, ordinary wear and tear excepted. Customer shall be responsible for all risk of loss, damages and liability from the point in time that the Equipment leased or rented by Company t o Customer leaves the gate at Company’s facility until it is returned back inside the gate at
Company’s facility. Customer shall be solely responsible for the loss of any materials transported or mixed in the Equipment leased or rented by Company to Cust omer after the Equipm ent leaves Company’s facility and before it is returned to Company’s facility including, but not limited to, any loss of materials which solidify, break, or become stuck as a result of the failure of the Customer to follow the operating instructions for th e Equipment. Customer shall operate the Equipment in compliance with all applicable laws, ordinances and regulations. Customer shall be solely responsible for all fines and violations arising out of or relating to the Customer’s use or operation of the Equipment. Customer is only obtaining the right to use the Equipment specified in the applicable price quotation and shall obtain no ownership interest in the Equipment.
4. Payment Terms. Company’s standard terms of sale of goods and rental of Equipment are cash on delivery unless the Company grants credit to Customer in Company’s sole and absolute discretion.
All goods, applicable freight and insurance charges and Equipment rental charges will be invoiced as of the date of delivery. Company reserves the right to suspend credit, change credit terms or deny credit in its sole discretion at any time with or without notice to Customer. Company reserves the right to require from Customer adequate assurances of performance before delivery of goods or rental o f Equipment. Company reserves the right to suspend performance until Company receives adequate assurances satisfactory to Company. Company shall have the right to take possession of the Equipment and/or goods if Customer fails to mak e timely payment with in forty eight (48) hours of the time that Customer is deemed to have received written notice of failure to make payment. Payment by Customer to Company shall not be contingent upon Customer receiving payment from any third party. Customer shall pay all sales, use and excise taxes. Interest at eighteen percent (18%) per annum shall accrue on all past due payments. Customer’s failure to pay invoices when due, at Company’s election shall make all subsequent invoices immediately due an d payable irrespectiv e of prior negotiated terms. Company may withhold delivery or shipment of goods or rental of Equipment until Customer’s account is settled in full. Customer expressly waives any liability of Company for any refusal to deliver goods o r rent Equipment for accounts in arrears. Customer authorizes Company to obtain credit information on Customer on an ongoing basis and authorizes the release of all credit information on Customer to Company.
5. Equipment.
a. Company requires that each third-party user and operator of Company’s Equipment be briefed on the proper use of the Equipment and acknowledge that the user understands all such requirements in writing on a form which is substantially similar to Exhibit “A” hereto. Each employee of Customer who will make use of or operate the Equipment shall sign a form that is substantially similar to Exhibit “A” hereto before Customer’s employee will be permitted to make any use of or operate the Equipment.
b. The fuel level of all Equipment will be recorded when it leaves Company’s facility and the Customer is responsible for returning the Equipment to Company’s facility with the same amount of fuel
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as when it left. If the Equipment is returned with less fuel than when the Equipment left Company’s facility, the Customer will be responsible for paying the cost of the fuel to bring the fuel level back to the level when it departed Company’s facility.
c. Customer shall be responsible for maintaining the Eq uipment inside and outside in a clean manner. Customer wi ll be charged for the cost of cleaning the Equipment if it is not returned to Company in at least as clean a condition as when it left the Company facility. No smoking is allowed in or around any of the Equipment.
d. All material valves shall be closed when transporting all Equipment. All lids and covers shall be maintained in a closed condition on all Equipment. Customer shall check for damage to all Equipment on a regular basis no less frequently than prior to departure from Company’s facility and again when the Equipment is returned to Company’s facility. e. Customer shall notify Company of any operating problems or any required repairs to the Equipment so that Company can make any requ ired repairs. An authorized representative of the Customer will be required
to confirm in writing on a form substantially similar to Exhibit “B” that the Equipment (i) delivered at the start of the work day is in good operating condition free from any op erating problems or required repairs, and (ii)
was returned in g ood operating condition free from any operating problems or required repairs. The Customer is responsible for promptly notifying Company in writing of any operating problems or required repairs so that any operating problems or required repairs can be promptly handled. Company shall not be responsible for any damages or delays as a result of operating problems or required repairs if the Customer does not promptly notify Company. Customer s hall be responsible for all damages to the Equipment while the Equipment is in the possession, custody or control of the Customer.
6. Insurance Requirements For Equipment Rental.
a. Coverage. Customer shall procure and maintain at its own expense compr ehensive general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss or damage resulting from the use or operation of the Equipment by Customer or its officers, em ployees, servants, volunteers, agents and independent contractors. Customer shall further procure and maintain at its own expense commercial vehicle liability insurance covering personal inj ury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, covering the Equipment that names Company as the loss payee. Said policies of insurance shall have deductibles of One Thousand Dollars ($1,000) or less. b. Workers Compensation Insurance. Customer shall procure and maintain at its own expense, during the term of this Agreement, workers' compensation insurance, providing coverage as required by the California State Workers' Compensation Law.
c. Additional Named Insured. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers' Compensation coverage, shall bear an endorsement whereby it is provided that, Company and its officers, directors, shareholders, members, managers, employees, agents, representatives and lessors are named as an additional insured. d. Proof of Insurance Coverage; Certificates. Customer shall secure from a good and responsible company or companies authorized to do insurance business in the State of California the
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policies of insurance required by this Agreement and furnish to Company certificates of said insurance on or before delivery or use of the Equ ipment by the Customer . Each policy required herein must be endorsed to provide that the policy shall not be cancelled or reduced in coverage unless the insurer has provided Company with thirty (30) days prior written notice of cancellation or reduction i n coverage.
All insurance policies required to be provided by Customer or any other party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self-insurance, primary or excess, maintained or available to Company. The insurance provisions of this Agreement shall in no way modify Customer’s duty to indemnify, defend and hold Company harmless pursuant to the terms of th is Agreement. Company shall have the right to terminate this Agreement immediately and take possession of the Equipment if the Customer fails at any time to provide and maintain the required insurance or certificates.
7. Trademarks and Intellectual Property. Customer shall not make any use of the Flex Seal® or other Company trademarks, service marks or symbols unless Customer has submitted such proposed use to Company and received Company’s express prior written consent. Customer shall not use Company’s trademarks, service marks or symbols in Customer’s business name or letterhead. Company and its licensor shall be the exclusive
owner of the Flex Seal® trademarks, service marks, symbols, trade secrets, confidential information, know how, copyrights and patents together with all Improvements (as defined hereinafter) to any of the foregoing and
Customer shall not challenge such exclusive ownership or make any unauthorized use. For purposes of this Agreement, “Improvements” shall mean all inventions, modifications, revisions, alterations, enhancements, betterments, ideas and discoveries (whether or not patentable) conceived or reduced to practice (actually or constructively), either solely or jointly with others.
8. Disclaimer of Warranti es. Customer shall be solely responsible for determining whether the goods and Equi pment are appropriate for any project or application or whether the goods must be modified to make them suitable for any project or application. Company makes no represent ation or warranty that the goods or Equipment will be suitable for any particular project or application. It shall be the Customer’s sole responsibility to obtain a mix design from a qualified engineer for each project or application. Company shall have no liability for any mix designs used by Customer.
COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED, AS TO THE GOODS AND EQUIPMENT, INCLUDING BUT NOT LIMITED TO, ANY
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND W ARRANTY OF MERCHANTABILITY.
COMPANY HAS NO CONTROL OVER THE MATERIAL SUPPLIERS SELE CTED BY BUYER OR THE MATERIALS PURCHASED FROM THIRD PARTIES. COMPANY SHALL HAVE NO
LIABILITY FOR ANY MATERIALS PURCHASED BY BUYER FROM ANY
THIRD PARTIES. BUYER SHALL BE SOLELY RESPONSIBLE FOR VERIF YING THAT ALL
MATERIALS OBTAINED BY BUYER FROM THIRD PA RTIES ARE COMPATIBLE WITH ANY MATERIALS PURCHASED BY BUYER FROM COMPANY. BUYER SHALL BE
SOLELY RESPONSIBLE FOR ADJUSTING AND CALIBRATING BUYER’S EQUIPMENT TO
ACCOUNT FOR VARIATIONS IN THE MATERIALS PURCHASED BY BUYER FROM THIRD PARTIES. COMPANY SHALL N OT BE LIABLE FOR ANY CALIBRATION OR OTHER ASSISTANCE THAT MAY BE PROVIDED TO BUYER BY COMPANY.
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9. Limitation of Liability. Company shall not be liable under any circumstances for any special, consequential, incidental, punitive or exemplary damages arising out of or in any way connected with this Agreement to sell goods or rent Equipment to the Customer, including damages for loss of use, lost profits, or damages paid to third parties even if Company has been advised of the possibility of such damages. Customer’s exclusive remedy and Company’s entire liability to Customer shall be limited to the total invoice price paid or incurred by Customer for the goods and/or Equipment that are the subject of any dispute or claim for damages. Customer shall report all alleged problems with the goods and Equipment to Company immediately. Company shall have no liability for any problems which are not reported immediately. No legal action shall be brought by Customer against the Company for any claim with respect to any goods sold or Equipment rented by Company to Customer more than one (1) year after delivery of such goods or Equipment to the Customer. It is agreed that any cause of action with respect to such goods or Equipment shall accrue as the date of delivery of such goods or Equipment.
10. Relationship of the Parties. Nothing in this Agreement shall restrict Company’s right to sell the same or similar goods to third parties. The relationship of the Parties shall be that of purchaser and vendor and/or lessor and lesser, as applicable, and nothing contained in this Agr eement shall be construed to create a joint venture, association, agency, partnership or franchise relationship.
11. Termination. Either Party may terminate this Agreement on thirty (30) calen dar day written notice. Any such termination shall not affec t any accepted orders or the duty of Customer to make payment.
12. Indemnification. Customer shall indemnify, defend, and hold harmless Company and its officers, directors, shareholders, partne rs, members, managers, agents, employees, attorneys, successors, and permitted assigns with respect to any and all claims, demands, liabilities, judgments, awards, liens, losses, damages, or
costs (including reasonable attorneys’ fees and expenses) of any kind or nature arising from or in any manner related to (i) any use of the goods purchased or Equipment rented from Company; or (ii) the failure of Customer to observe or perform the covenants and agreements of Customer under this Agreement (hereinafter c ollectively “Claims”) with the exception of Claims caused by the sole negligence of Company. Customer’s duty to defend, indemnify and hold harmless the Company shall survive the termination of this Agreement for any reason.
13. Further Assurances. Each of the Parties hereto agrees to execute and deliver any and all additional papers and documents, and to do any and all acts reasonably necessary in connection with performance of its obligations hereunder to carry out the intent of the Parties hereto.
14. Entire Agreement. This Agreement and the documents expressly referenced herein, shall constitute the entire Agreement between the Parties hereto with respect to the subject matter hereof, and shall supersede all prior and contemporaneous agreements, repr esentations and negotiations of the Parties concerning the subject matter hereof and the terms applicable thereto.
15. Amendment. This Agreement may not be supplemented, modified or amended in any manner, except by an instrument in writing stating that it is a supplement, modification or amendment of this Agreement and signed by each of the Parties hereto.
16. Waiver. No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provision, whether or not simil ar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.
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17. Successors and Assigns. All terms and provisions contained herein shall inure to the benefit of and shall be binding on each of the Parties hereto and their respecti ve directors, officers, shareholders, partners, members, managers, employees, agents, heirs, representatives, successors and permitted assigns and each of them.
18. Applicable Law. This Agreeme nt shall be deemed to have been entered into, and shall be construed and interpreted, in accordance with the laws of the State of California without reference to California’s application of principles of conflicts of law.
19. Severability. In the event that any provisions hereof are deemed to be illegal or unenforceable, such a determination shall not affect the validity or enforceability of the remaining provisions hereof, all of which shall remain in full force.
20. Form. As used in this Agreement, the masculine, feminine and neuter gender, and singular and plural number shall be deemed to include the other and others whenever the context so indicates. All captions used in this Agreement are for convenience only and shall not be construed in interpreting this Agreement.
21. Time is of The Essence. Time is of the essence for this Agreement and all of the terms, provisions, covenants and conditions hereof.
22. Parties In Interest. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties to it and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any Party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over or against any Party to this Agreement.
23. Remedies. In addition to any other available remed ies, either Pa rty, upon an appropriate showing, shall be entitled to equitable relief including, but not limited to, injunction and specific performance in the event of a
breach or threatened breach of this Agreement. No remedy conferred by any specific provision of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, or now or hereinafter existing at law, in equity, by
statute or otherwise. The el ection of one or more remedies by a Party shall not constitute a waiver of the right to pursue other available remedies.
24. Attorneys’ Fees. The prevailing party in any arbitration or legal action arising out of this Agreement shall be entitled to an award of its attorneys’ fees, expert witness fees and costs.
25. Nonassignability. This Agreement may not be assigned by either Party without the express written consent of each of the Parties. For purposes of this Agreement, the prohibition o n assignment shall also apply to licenses, sublicenses and subcontractors.
26. Interpretation. This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the parties and the parties hereby expressly agre e that any uncertainty or ambiguity existing herein shall not be interpreted against either of them.
27. Force Majeure. Company shall not be responsible for any delays or failure to perform for any reason including, but not limited to, fire, flood, strikes, lockouts, accidents, war, terrorist acts, insurrection, Acts
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of God, inc lement weather, delays in transportation, Equipment failure, shortage of Equipment, governmental interference or regulation, or any other reason beyond Company’s reasonable control.
28. Waiver. No waiver shall be binding, unless executed in writing by t he Party making the waiver.
No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor sh all any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
29. Captions and Headings. The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
30. Notices. All notices required or permitted under this Agreement shall be in writing, shall be sent to the Party’s address as set forth immediately below, shall reference this Agreement, and shall be deemed given (i) when delivered pe rsonally; (ii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one day after deposit with a commercial overnight carrier with verification of receipt.
“Company” Petrochem Materials Innovation, LLC
6168 Innovation Way
Carlsbad, CA 92009
“Customer” _________________
Any correctly addressed notice that is refused, unclaimed, or undeliverable because of any act or omission of the Party to be noti fied will be deemed effective as of the first date that the notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or overnight delivery service. A Party may change its address for purposes of receiving notices by giving notice of said change of address in the manner provided for herein.
31. Arbitration. Any and all controversies, claims and disputes arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in the Co unty of San Diego, State of California, in accordance with the Commercial Arb itration Rules of the American Arbitration Association then in effect. The arbitrator shall be an attorney admitted to practice law in the State of California with at least fiftee n (15) years of business law experience. The award rendered by the arbitrator shall be final and non-appealable and may be entered as a final judgment in any court having jurisdiction thereof. The award of the arbitrator shall be in the form of findings of fact and conclusions of law and shall set forth in detail the legal and factual basis of the decision.
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AGREEMENT
THIS CONTRACT, by and between the CITY OF CATHEDRAL CITY, a municipal corporation, herein referred to as "City,” and PETROCHEM MATERIALS INNOVATION, LLC (PMI), herein referred to as, "Contractor."
W I T N E S S E T H:
In consideration of their mutual covenants, the parties hereto agree as follows:
1. Contractor shall furnish all necessary labor, material, equipment, transportation an d services to supply and install Type II and Type III Rubberized Emulsion Aggregate Slurry (REAS) deliver ed from an approved Central Plant on all La Pasada Neighborhood streets, Avenida Maravilla, Avenida La Paz, Avenida La Vista, Adelina Road, Horizon Road from Adelina Road to Vista Chino Drive, and Date Palm Drive from Varner Road to the I-10 Interchange, including traffic control and striping, thermoplastic stop bars, legen ds and crosswalks in accordance with Attachments A thru J, in the City of Cathedral City, California.
2. Contractor shall comply with all Fed eral, State, Cou nty, and Cathedral City Municipal Code, which are, as amended from time to time, incorporated herein by reference.
3. A
ll work shall be done in a manner satisfactory to the City Engineer.
4. Cont
ractor shall commence work after the execution of this agreement and purchase order and agrees to have all work completed within the specified 45 working days.
5. In c
onsideration of said work, City agrees to pay Contractor such sums as shall be approved by the City Engineer at lump sums and/or unit prices stated in the Contractor's proposal, attached hereto, in the amount of One Million Thirty Eight Thousand Six Hundred Thirty Three Dollars and 92/100 ($1,038,633.92). All payments shall be subject to approval by the Director of Engineering/ Public Works.
6. The
Contractor shall not knowingly pay less than the higher of the Federal minimum wage rate or the general prevailing rate for per diem wages, as determined by the State of California Department of Industrial Relations and referred to in the Invitation to Bid, to any workman employed for the work to be performed under this contract; and the Contractor shall forfeit as a penalty to the City the sum of Twenty- Five Dollars ($25.00) for each calendar day, or fraction thereof, for such workman paid by him or by any subcontractor under him in violation of this provision (Sections 1770-1777, Labor Code of California).
7. Cont
ractor agrees to indemnify, hold harmless, release and defend (even if the allegations are false, fraudulent or groundless), to the maximum extent permitted by law, the City, its City Council, and each member thereof, and its officers, employees, commission members and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney's fees and costs of litigation) which in whole or in part are claimed to result from or to arise out of the usage or operation, including the malfunctioning of, or, any injury caused by, any product purchased herein; or any acts, errors or omissions (including, without limitation, professional negligence) of Contractor, its employees, representatives, subcontractors, or agents in connection with the performance of this Contract.
Thi
s agreement to indemnify includes, but is not limited to, personal injury (including death at any time) and damage to property (including, but without limitation, contract or tort or patent, copyright, trade secret or trademark infringement) sustained by any person or persons (including, but not limited to, companies, or corporations, Contractor and its employees or agents, and members of the general public).
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8. Except as otherwise required, Contractor shall concurrent ly with the execution of this contract, furnish the City satisfactory evidence of insurance of the kinds and in the amounts on Attachment B. This insurance shall be kept in full force and effect by Contractor during this entire contract and all premiums thereon shall be promptly paid by it. Each policy shall further state that it cannot be canceled without 30 days’ unconditional written notice to the City and shall name the City and the County of Riverside as additional insured. Contractor shall furnish evidence of having in effect, and shall maintain Workers Compensation Insurance coverage of not less than the statutory amount or otherwise show a certificate of self-insurance, in accordance with the Workers Compensation laws of the State of California.
Failure to maintain the required amounts and types of coverage throughout the duration of this Contract shall constitute a material breach of this Contract.
9. Contractor shall forfeit as a penalty to City $25.00 for each laborer, workman, or mechanic employed in the execution of this Contract by said Contractor, or any subcontractor under it, upon any of the work herein mentioned, for each calendar day during which such laborer, workman, or mechanic is required or permitted to work at other than a rate of pay provided by law for more than 8 hours in any one calendar day and 40 hours in any one calendar week, in violation of the provisions of Sections 1810- 1815 of the Labor Code of the State of California.
10. In accepting this Contract, Contractor certi fies that in the conduct of its business it does not deny the right of any individual to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marit al status, sex or age as provided in the California Fair Employment Practice Act (Government Code Sections 12900, et seq.) Contractor agrees that a finding by the State Fair Employment Practices Commission that Contractor has engaged during the term of this Contract in any unlawful employment practice shall be deemed a breach of this Contract and Contractor shall pay to City $500.00 liquidated damages for each such breach committed under this contract.
11. This Contract shall not be assignable by Contractor without the written consent of City.
12. Contractor shall notify the City Engineer (in writing) forthwith when the Contract is deemed completed.
13. In accepting this Contract, Contractor certifies that no member or officer of the firm or corporation is an officer or employee of the City except to the extent permitted by law.
14. Contractor certifies that it is the holder of any necessary California State Contractor's License and authorized to undertake the above work.
15. The City, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Contractor records to the extent the City deems necessary to insure it is receiving all money to which it is entitled under the contract and/or is pay ing only the amounts to which Contractor is properly entitled under the Contract or for other purposes relating to the Contract.
16. To ensure proper performance of this Contract, the City shall retain five percent (5%) of the amount of each approved Application for Payment until the project work is 100% complete provided that the Contractor completed the scope of work and properly identified and corrected any non-conforming work. A Notice of Completion will be issued
17. The Contractor shall maintain and preserve all such records for a period of at least four years after termination of the contract.
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18. The Contractor shall maintain all such records in the City of Cathedral City. If not, the Contractor shall, upon request, promptly deliver the records to the City or reimburse the City for all reasonable and extra costs incurred in conducting the audit at a location other than at City offices including, but not limited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead.
19. The further terms, conditions, and covenants of the Contract are set forth in Attachments A thru H, each of which is by this reference made a part hereof.
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Attachment: PMI Agreement (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects)
IN WITNESS, WHEREOF, the parties have executed this Agreement as of the dates stated below.
"CITY"
CITY OF CATHEDRAL CITY,
a California municipal corporation
By: ________________________ Dated: _____________________________ Charles P. McClendon, City Manager
ATTEST:
Dated: _____________________________
Tracey R. Hermosillo, City Clerk
APPROVED AS TO FORM:
Dated: _____________________________
Eric S. Vail, City Attorney
“CONTRACTOR”
Dated: _____________________ By: __________________________________
Name: Leland Pace
Title: Chief Executive Officer (CEO)
Dated: _____________________ By: __________________________________
Name: Frank B. Hoffman
Title: Chief Financial Officer (CFO)
"CONTRACTOR"
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Attachment: PMI Agreement (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects)
(If corporation, affix seal)
ATTACHMENT A
WORKERS' COMPENSATION INSURANCE CERTIFICATE
In accordance with California Labor Code Section 1861, prior to commencement of work on the Contract, the Contractor shall sign and file with the City the following certification:
"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract."
__________________________________________________
Signature
__________________________________________________
Title
__________________________________________________
Date
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Attachment: PMI Agreement (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects)
ATTACHMENT B
LIABILITY AND INSURANCE REQUIREMENTS
1.0 INDEMNIFICATION
The Contractor shall indemnify, hold harmless and assume the defense of the City of Cathedral City (City), its elected officials, officers, agents, employees, commission members and representatives, from all damages, costs, or expenses in law or equity that may at any time arise to cause damages to property, or of personal injury received by reason of or in the course of performing work, which may be occasioned by any willful or negligent act or omission of the Contractor, any of the Contractor's employees, or any of its subcontractors arising out of work under this Contract.
The City does not, and shall not, waive any rights that it may have against Contractor, any of the Contractor’s employees, or any of its subcontractors under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Contract. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described herein. The City shall not be liable for any accident, loss, or damage to the work prior to its completion and acceptance.
2.0 INSURANCE REQUIREMENTS
2.1 General
The Contractor shall provide evidence of all the insurance required by Paragraph 1340- 2.0, INSURANCE REQUIREMENTS, and shall submit coverage verification for review and approval by the City upon execution of the Contract.
The Contractor shall not commence work, until such insurance has been approved by the City. The Contractor shall not allow any subcontractors to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and verified by Contractor. Such insurance shall remain in full force and effect at all times during the prosecution of the Work and until the final completion and acceptance thereof.
2.2 Commercial General Liability Policy
The Contractor shall maintain during the life of the Contract, a Commercial General Liability Policy, on an occurrence basis, with a minimum limit of not less than Two Million Dollars ($2,000,000) combined single limit for bodily injury and property damage for any one occurrence and a Four Million Dollar ($4,000,000) annual project aggregate, for all of the following:
a. Premises Operations, including Explosion, Collapse and Underground (X, C, and U) Coverage.
b. Completed Operations/Products, including X, C, and U Coverage.
c. Independent Contractors.
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d. Blanket Contractual.
e. Deductible shall not exceed One Thousand Dollars ($1,000).
2.3 Commercial Business Auto Policy
The Contractor shall maintain during the life of this Contract a Commercial Business Auto Policy, on an occurrence basis, with a minimum amount of not less than Two Million Dollars ($2,000,000) combined single limit for bodily injury and property damage, providing at least all of the following coverage:
a. Coverage shall be applicable to any and all leased, owned, hired, or non- owned vehicles used in pursuit of any of the activities associated with this Contract.
b. Any and all mobile equipment, including cranes, which is not covered under said Commercial Business Auto Policy shall have said coverage provided for under the Commercial General Liability Policy.
c. Deductible shall not exceed One Thousand Dollars ($1,000).
2.4 Workers' Compensation Insurance
The Contractor shall maintain during the life of the Contract, Worker's Compensation and Employers' Liability insurance providing coverage for any and all employees of Contractor:
a. The required policy shall provide coverage for Workers' Compensation (Coverage A).
b. This policy shall provide coverage for One Million Dollars ($1,000,000) Employers' Liability (Coverage B).
2.5 Endorsements
All of the following endorsements are required to be made a part of the policies described in this Section hereof:
a. "The City, City employees and officers, the City Engineer, its consultants, elected officials, agents are hereby added as additional insured insofar as Work done under this Contract is concerned."
b. "This policy shall be considered primary insurance as respects any other valid and collectible insurance, including self-insured retention, the City may possess, and any other insurance the City does possess shall be considered excess insurance only."
c. "This insurance shall act for each insured, and additional insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company.
d. “Thirty (30) days prior written notice of cancellation shall be given to the City. Such notice shall be sent to:
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Attachment: PMI Agreement (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects) Armando J.G. Baldizzone, P.E., City Engineer
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
2.6 Change in Terms
The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to the above stated location, identified in Section 2.5, Endorsements. The Contractor shall be obligated to pay any extra premium for maintaining the insurance requirements specified here.
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ATTACHMENT C
PMI CERTIFICATE OF LIABILITY INSURANCE
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ATTACHMENT D
CATHEDRAL CITY COST ESTIMATE
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City of Cathedral City
Summary of Estimate Charges
Central Mix REAS Type II & III
Quote no:
23-09 QTY U/M Unit Price Days Total
*Material Type II REAS 54,748 GAL $2.22 6 $121,540.56
Type III REAS 34,168 GAL $2.22 $75,852.96
*Freight Delivery 244Miles ($3/mile) 38 LOAD $732.00 $27,816.00 Applicator Trucks ($252/per hr) (2Trucks) 96 HR $252.00 $24,192.00 Tanker Rental (4) 38 LOAD $200.00 $7,600.00
Service Haul Trucks (4) 36 EA $200.00 $7,200.00
Slurry Box 6 EA $250.00 $1,500.00
Slurry Pump 6 EA $500.00 $3,000.00
Sevice Labor crew(13) $110 per hr / per person @ 8hr/day 528 HR $110.00 $58,080.00 Supervisor 6 DAY $1,000.00 $6,000.00
Per Diem ($256 per person/ per day) 76 DAY $256.00 $19,456.00 Traffic Control equipment 6 DAY $1,500.00 $9,000.00
Sweeping (Subcontract) 56 HR $300.00 $16,800.00
Door Hanger 1 EA $300.00 $300.00
Striping - Chrisp Co 1 LS $7,633.00 $7,633.00
Crack Seal - Rubberized 1 LS $14,083.00 $14,083.00
Project Bonds 1 LS $4,250.00 $4,250.00
$404,303.52
Sales Tax* 8.75% $19,705.83
Subtotal:
La Pasada Neighborhood
$424,009.35Total
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QTY U/M Unit Price Days Total
*Material Type II REAS 46,898 GAL $2.22 3 $104,113.56
*Freight Delivery 244Miles ($3/mile) 18 LOAD $732.00 $13,176.00 Applicator Trucks ($252/per hr) (2Trucks) 48 HR $252.00 $12,096.00 Tanker Rental (4) 18 LOAD $200.00 $3,600.00
Service Haul Trucks (4) 18 EA $200.00 $3,600.00
Slurry Box 3 EA $250.00 $750.00
Slurry Pump 3 EA $500.00 $1,500.00
Sevice Labor crew(13) $110 per hr / per person @ 8hr/day 270 HR $110.00 $29,700.00 Supervisor 3 DAY $1,000.00 $3,000.00
Per Diem ($256 per person/ per day) 39 DAY $256.00 $9,984.00 Traffic Control equipment 3 DAY $1,500.00 $4,500.00
Sweeping (Subcontract) 32 HR $300.00 $9,600.00
Door Hanger 1 EA $300.00 $300.00
Striping - Chrisp Co 1 LS $37,733.00 $37,733.00
Crack Seal - Rubberized 1 LS $26,875.00 $26,875.00
Project Bonds 1 LS $2,650.00 $2,650.00
$263,177.56
Sales Tax* 8.75% $10,262.84
Avenida Maravilla
Subtotal:
$273,440.40Total
QTY U/M Unit Price Days Total
*Material Type II REAS 18,733 GAL $2.22 2 $41,587.26
*Freight Delivery 244Miles ($3/mile) 8 LOAD $732.00 $5,856.00 Applicator Trucks ($252/per hr) (2Trucks) 32 HR $252.00 $8,064.00 Tanker Rental (4) 8 LOAD $200.00 $1,600.00
Service Haul Trucks (4) 12 EA $200.00 $2,400.00
Slurry Box 2 EA $250.00 $500.00
Slurry Pump 2 EA $500.00 $1,000.00
Sevice Labor crew(13) $110 per hr / per person @ 8hr/day 180 HR $110.00 $19,800.00 Supervisor 2 DAY $1,000.00 $2,000.00
Per Diem ($256 per person/ per day) 26 DAY $256.00 $6,656.00 Traffic Control equipment 2 DAY $1,500.00 $3,000.00
Sweeping (Subcontract) 16 HR $300.00 $4,800.00
Traffic Control Plan 2 EA $200.00 $400.00
CMS Boards 20 EA $225.00 $4,500.00
Striping - Chrisp Co 1 LS $18,813.00 $18,813.00
Crack Seal - Rubberized 1 LS $3,333.00 $3,333.00
Project Bonds 1 LS $1,300.00 $1,300.00
$125,609.26
Sales Tax* 8.75% $4,151.29
Date Palm (I-10 to Varner)
Subtotal:
$129,760.55Total
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P a g e 3 | 10
QTY U/M Unit Price Days Total
*Material Type II REAS 40,352 GAL $2.22 2 $89,581.44
*Freight Delivery 244Miles ($3/mile) 16 LOAD $732.00 $11,712.00 Applicator Trucks ($252/per hr) (2Trucks) 32 HR $252.00 $8,064.00 Tanker Rental (4) 16 LOAD $200.00 $3,200.00
Service Haul Trucks (4) 12 EA $200.00 $2,400.00
Slurry Box 2 EA $250.00 $500.00
Slurry Pump 2 EA $500.00 $1,000.00
Sevice Labor crew(13) $110 per hr / per person @ 8hr/day 180 HR $110.00 $19,800.00 Supervisor 2 DAY $1,000.00 $2,000.00
Per Diem ($256 per person/ per day) 26 DAY $256.00 $6,656.00 Traffic Control equipment 2 DAY $1,500.00 $3,000.00
Sweeping (Subcontract) 24 HR $300.00 $7,200.00
Striping - Chrisp Co 1 LS $3,832.00 $3,832.00
Crack Seal - Rubberized 1 LS $41,495.00 $41,495.00
Project Bonds 1 LS $2,120.00 $2,120.00
$202,560.44
Sales Tax* 8.75% $8,863.18
Avenida La Vista, Avenida La Paz, Horizon Rd and Adelina Rd Subtotal:
$211,423.62Total
Total Estimated Charges ( Included Sales Tax)
Estimate good through June 30, 2023
$1,038,633.92
Prices Includes: Bonds, Central Mix REAS, transportation of material, Traffic Control, Traffic control plans for Date Palm only, (2) CMS Boards, posting and notifying, sweeping, crack sealing, striping removals and install in paint (2) coats 7 days apart, equipment and labor for application of approximately 160,732 gallons of Type II and approximately 34,168 gallons of Type III.
* La Posada neighborhood, Avenida Maravilla, Avenida La Vista, Avenida La Paz, Date Palm (I -10 to Varner), Horrizon Rd and Adelina Rd
**Type III on various street within La Posada neighborhood only
Prices Exclude: Any asphalt repairs, weed kill, weekend work
The foregoing quotation is subject to all the Terms and conditions set forth in PMI’s Master Terms and Conditions and the application for open business credit agreement entered into by and between Petrochem Materials Innovation, LLC. and customer. If terms and conditions are not attached, please call our office
Name: Vicki Nguyen Signature: Date: 2/9/2023_____
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Attachment: PMI Agreement (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects)
ATTACHMENT E
PMI'S REPRESENTATIONS AND WARRANTIES
PMI hereby makes the following representations, warranties and acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Effective Date:
a. PMI has the full right, power and authority to enter into this Agreement and to sell Central Mix and rent the Equipment to the City, and to take all actions required of PMI by the terms of this Agreement.
b. All the documents executed by PMI pursuant to this Agreement will be duly authorized, executed and delivered by PMI and will be legal, valid and binding obligations of PMI enforceable against PMI in accordance with their respective terms, and will not violate any provisions of any agreement to which PMI is a party or to which it is subject. c. PMI has manufactured the Central Mix and has centrally mixed the Central Mix in accordance with Sections 203-5.5 and 203-5.5 .3, respectively, of the Greenbook. d. PMI has good and marketable title to the Type II Central Mix, which is to be sold and transferred to the City free and clear of all liens, security agreements, encumbrances, claims, demands, and charges of every kind and nature whatsoever. e. The Central Mix and Equipment are free from all defects and are of good quality and fit for the purposes and uses intended herein.
f. PMI possesses the ability to deliver approximately 160,731 gallons of Type II and 34,168 gallons of Type III Central Mix product daily to Cathedral City, California, during the term of this Agreement.
g. The Equipment has been maintained in substantial accordance with the specifications of the Equipment manufacturers, or has otherwise been maintained in a manner to enable PMI to complete the Project.
h. PMI has inspected the Equipment and the Equipment is or will be in good and operable condition as of March 8, 2023, sufficient to enable PMI to complete the Project o n a timely basis.
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Attachment: PMI Agreement (3604 : Contract with Petrochem Materials Innovation, LLC (PMI) for FY 22-23 REAS Projects)
PRODUCT AND DELIVERY WARRANTIES
a. PMI hereby warrants that the Type II/ III Central Mix product (sometimes hereinafter, "Product") will not Fail (as defined hereinafter) for five (5 ) years from the d ate of application (hereinafter, "Useful Life"), provided all persons involved in the installation of the Product substantially follo w the guidelines, instructions, recommendations and best practices published and/or provided by PMI. The City hereby grants PMI and its representatives, in consultation with the City's inspector, the right to inspect, observe, monitor, provide instructions and recommend corrective actions to the City and any person installing the Product on all applications of the Product, including, without limitation, compliance with the guidelines and best practices for the application of the Product.
The granting of this right to PMI and its representatives does not impose any additional duty on PMI or its representatives in addition to those duties outlined in this Agreement. b. Should the Product Fail, PMI shall, at its election, and within thirty (30) days after determination of Failure, either repair or pay for the material cost of the Product to repair those areas of the Product covered by this warranty that Fail during its Useful Life, as well as for labor and other incidental costs (hereinafter, "Labor and Incidental Costs"), including, but not limited to, any affected striping, markings, and reflective pavement markers; provided, however, that such Failure shall occur within one (1) year from the date of Product application. For any Failure that occurs thereafter but during the Useful Life, PMI shall only be responsible for the repair or payment for the material cost of the Product, which shall also occur within thirty (30) days after determination of Product Failure. For purposes of this Agreement, whether the Product has Failed must be evaluated using the Slurry Seal Survey Procedures set forth in Exhibit "D" ("SSSP"), attached hereto and incorporated herein by this reference. The term "Fail," "Fails," "Failure" or "Failed" shall mean that, prior to the expiration of the Useful Life, more than ten percent (10%) of the native asphalt for any street segment (as defined in Exhibit "D") becomes uncovered (i.e., no longer covered by the Product), and such uncovering does not arise out of conditions outside of PMI's control, including, but not limited to, subgrade conditions, improper subbase and/or compaction, cracks, earthquakes, over watering, frequent sprinkler overspray, standing or ponding water, heavy truck or equipment traffic, corrosive or acid materials that may leak or spill on the Product, or a Force M ajeure event, as defined below.
c. P
rovided PMI and the City mutually agree, either Steve Marvin, of LaBelle Marvin, or Steve Escobar, of Asphalt Pavement and Recycling Technology, shall make the exclusive determination of whether the Product "Failed" during its Useful Life and, if so, identify the areas and the square footage of Failure that "Failed." If PMI elects not to perform the repair itself, then PMI shall pay one hundred percent (100%) of the Product material cost for the percentage of "Failed" square footage, and for any related Labor and Incidental Costs to the extent there may be any Labor and Incidental Costs during the first year of the Product's Useful Life. If Steve Marvin or Steve Escobar are unavailable to make the determination of whether the Product "Failed," an independent engineer approved by both the City and PMI with qualifications and experience as extensive as Steve Marvin's or Steve Escobar's shall be used. This warranty only applies to the Project that is the subject of this Agreement and no other location. If the evaluator concludes the Product Failed, PMI will bear the cost of the evaluation. If the evaluator concludes the Product did not Fail, the City will bear the cost of the evaluation. d. This warranty shall be ineffective unless the City provides PMI written notice of any problems, defects or perceived Failures of the Product within thirty (30) days of the City's discovery of the problem, defect or perceived Failure. PMI shall be given the opportunity t o inspect, investigate, test, repair and remediate any alleged problems, defects or failures in connection with the Product prior to any
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repair by the City, and, repair without notice shall void and waive this warranty. Inspection, investigation, testing, repair and remediation by PMI shall not operate as an admission of liability by PMI. e. Subject to Sections 21b and 21f hereof, regardless of whether any remedy set forth herein fails of its essential purpose, in no event shall PMI be liable to City for a ny special, consequential, incidental, exemplary, punitive, indirect or similar damages, including loss of profits, Joss of use, or personal injury, in connection with any Failed Product, even if PMI has been advised of t he possibility of such damages.
f. Notwithstanding anything else to the contrary herein, in the event PMI should fail to deliver the entirety of any per diem amount of Type II Central Mix as required by the City in accordance with Section 2 of this Agreement, or, in the event of a delay due to any portion of the Type II Central Mix being deemed by the City to be unusable for the timely completion of the Project through sample testing or otherwise, PMI shall be responsible and shall immediately pay for any and all direct or indirect damages of whatever character, nature or kind, in connection therewith, in accordance with the method of calculation of damages from delays set forth in Section 25 of the General Provisions, which is expressly incorporated herein by this reference with the same fo rce and effect as though set forth at length herein, and which provisions are part of the City's contract with Contractor for the Project; provided, however, that PMI shall not be held responsible for delays if such delays are as a result of any Act of God (hereinafter, "Force Majeure"), which includes fire, flood, earthquake, storm, hurricane or other natural disaster, war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service . In the event of any delay, PMI shall immediately notify the City in writing of the delay and the estimated extent of the delay, and the cause of the delay. The term of this Agreement, including the Rental Term, may be extended by the City in the City's sole discretion in the event of a Force Majeure delay but in no event shall PMI be considered in breach of this Agreement or any warranty as a result of any such Force Majeure delay.
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ATTACHMENT F
PMI MASTER TERMS AND CONDITIONS
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Master Terms and Conditions
1. Binding Agreement. The following terms and conditions constitute a binding agreement (“Agreement”) effective as of July 1 , 2015 (“Effective Date”) by and between Petrochem Materials Innovation, LLC, a California limited liability company (“Company”) and the undersigned cu stomer (“Customer”) and govern all goods sold and all Equipment (as defined hereinafter) rented, leased or provided by Company to Customer and shall be deemed to be incorporated in all invoices, purchase orders, price quotations and shipping confirmations. Company and Custome r are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.” For purposes of this Agreement the term “Equipment” shall mean all trucks, trailers, tractors, pumpers, tankers, tanks, m ixers, vehicles and t ools. Nothing contained in any purchase order, memoranda or other writing submitted by Customer to Company shall modify, amend or supersede this Agreement or any portion thereof. Customer’s submission of any provisions that are incons istent, in conflict with or create any ambiguity with this Agreement or any portion thereof are rejected. Company’s failure to object to any different terms or conditions shall not constitute acceptance or approval by Company.
2. Quotations and Pricing. All price quotations provided by Company to Customer shall only be valid for the duration and project specified in the written quotation provided by Company. Company reserves the right in its sole and absolute discretion to decline to quote or sell to Cus tomer. Company shall not be liable for any refusal to quote Customer or rejection of any offer to purchase by Customer.
Any request for quotation by Customer shall constitute a representation that Customer is solvent. All requests for quotation shall specify the name and address of the project where the goods and Equipment will be used, name and address of the original contractor, name and address of the public agency and any other information reasonably requested by Company to enable Company to serve a P reliminary Notice or Stop Notice pursuant to the California Civil Code. Company’s issuance of a quotation to Customer shall not obligate Company to provide any future quotations to Customer. Company reserves the right to require Customer to adhere to quality control measures imposed by Company in its sole and absolute discretion as a condition of accepting any offer to purchase by Customer and/or delivering goods and/or renting Equipment to the Customer. The parties agree that the foregoing provision is reasonable based on the need to maintain the quality of the goods, their application, the reputation of the brand and to maintain public safety. Customer shall be free to resell the goods purchased from Company at any price selected by Customer. The Equipment identified in any price quotation is subject to availability. Unless expressly provided in any price quotation, the prices in the quotation do not include an operator(s). The prices set forth in any price quotation will be charged from the time the Equipment leaves Company’s facility until it is returned, without proration for partial days and without regard as to whether the Equipment is actually used unless specifically provided otherwise in the applicable price quotation.
3. Delivery and Risk of Loss.
a. If the Company delivers the goods, delivery shall take place and all risk of loss shall pass when Company delivers the goods to the project and they pass the last flange on Company’s truck or trailer. If the Customer or its representative pi ck up the goods, deli very and all risk of loss shall pass when the goods pass the last flange on Company’s piping at Company’s plant. Company shall have the right to allocate goods to its customers pro rata in the event the Company experiences a shortage o f goods. All claims for defective goods shall be made within ten (10)
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calendar days of delivery. Failure to make a claim within that time shall operate as unequivocal acceptance and waiver of all claims.
b. Delivery of the Equipment from Company to Customer shall take place when the Equipment leaves the gate at Company’s South Gate or El Cajon facilities, as applicable, and shall not be deemed to be returned until the Equipment is delivered back inside of the gate at Company’s South Gate or El Cajon facilities, as applicable, in the same condition as when the Equipment left, ordinary wear and tear excepted. Customer shall be responsible for all risk of loss, damages and liability from the point in time that the Equipment leased or rented by Company t o Customer leaves the gate at Company’s facility until it is returned back inside the gate at
Company’s facility. Customer shall be solely responsible for the loss of any materials transported or mixed in the Equipment leased or rented by Company to Cust omer after the Equipm ent leaves Company’s facility and before it is returned to Company’s facility including, but not limited to, any loss of materials which solidify, break, or become stuck as a result of the failure of the Customer to follow the operating instructions for th e Equipment. Customer shall operate the Equipment in compliance with all applicable laws, ordinances and regulations. Customer shall be solely responsible for all fines and violations arising out of or relating to the Customer’s use or operation of the Equipment. Customer is only obtaining the right to use the Equipment specified in the applicable price quotation and shall obtain no ownership interest in the Equipment.
4. Payment Terms. Company’s standard terms of sale of goods and rental of Equipment are cash on delivery unless the Company grants credit to Customer in Company’s sole and absolute discretion.
All goods, applicable freight and insurance charges and Equipment rental charges will be invoiced as of the date of delivery. Company reserves the right to suspend credit, change credit terms or deny credit in its sole discretion at any time with or without notice to Customer. Company reserves the right to require from Customer adequate assurances of performance before delivery of goods or rental o f Equipment. Company reserves the right to suspend performance until Company receives adequate assurances satisfactory to Company. Company shall have the right to take possession of the Equipment and/or goods if Customer fails to mak e timely payment with in forty eight (48) hours of the time that Customer is deemed to have received written notice of failure to make payment. Payment by Customer to Company shall not be contingent upon Customer receiving payment from any third party. Customer shall pay all sales, use and excise taxes. Interest at eighteen percent (18%) per annum shall accrue on all past due payments. Customer’s failure to pay invoices when due, at Company’s election shall make all subsequent invoices immediately due an d payable irrespectiv e of prior negotiated terms. Company may withhold delivery or shipment of goods or rental of Equipment until Customer’s account is settled in full. Customer expressly waives any liability of Company for any refusal to deliver goods o r rent Equipment for accounts in arrears. Customer authorizes Company to obtain credit information on Customer on an ongoing basis and authorizes the release of all credit information on Customer to Company.
5. Equipment.
a. Company requires that each third-party user and operator of Company’s Equipment be briefed on the proper use of the Equipment and acknowledge that the user understands all such requirements in writing on a form which is substantially similar to Exhibit “A” hereto. Each employee of Customer who will make use of or operate the Equipment shall sign a form that is substantially similar to Exhibit “A” hereto before Customer’s employee will be permitted to make any use of or operate the Equipment.
b. The fuel level of all Equipment will be recorded when it leaves Company’s facility and the Customer is responsible for returning the Equipment to Company’s facility with the same amount of fuel
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as when it left. If the Equipment is returned with less fuel than when the Equipment left Company’s facility, the Customer will be responsible for paying the cost of the fuel to bring the fuel level back to the level when it departed Company’s facility.
c. Customer shall be responsible for maintaining the Eq uipment inside and outside in a clean manner. Customer wi ll be charged for the cost of cleaning the Equipment if it is not returned to Company in at least as clean a condition as when it left the Company facility. No smoking is allowed in or around any of the Equipment.
d. All material valves shall be closed when transporting all Equipment. All lids and covers shall be maintained in a closed condition on all Equipment. Customer shall check for damage to all Equipment on a regular basis no less frequently than prior to departure from Company’s facility and again when the Equipment is returned to Company’s facility. e. Customer shall notify Company of any operating problems or any required repairs to the Equipment so that Company can make any requ ired repairs. An authorized representative of the Customer will be required
to confirm in writing on a form substantially similar to Exhibit “B” that the Equipment (i) delivered at the start of the work day is in good operating condition free from any op erating problems or required repairs, and (ii)
was returned in g ood operating condition free from any operating problems or required repairs. The Customer is responsible for promptly notifying Company in writing of any operating problems or required repairs so that any operating problems or required repairs can be promptly handled. Company shall not be responsible for any damages or delays as a result of operating problems or required repairs if the Customer does not promptly notify Company. Customer s hall be responsible for all damages to the Equipment while the Equipment is in the possession, custody or control of the Customer.
6. Insurance Requirements For Equipment Rental.
a. Coverage. Customer shall procure and maintain at its own expense compr ehensive general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss or damage resulting from the use or operation of the Equipment by Customer or its officers, em ployees, servants, volunteers, agents and independent contractors. Customer shall further procure and maintain at its own expense commercial vehicle liability insurance covering personal inj ury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, covering the Equipment that names Company as the loss payee. Said policies of insurance shall have deductibles of One Thousand Dollars ($1,000) or less. b. Workers Compensation Insurance. Customer shall procure and maintain at its own expense, during the term of this Agreement, workers' compensation insurance, providing coverage as required by the California State Workers' Compensation Law.
c. Additional Named Insured. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers' Compensation coverage, shall bear an endorsement whereby it is provided that, Company and its officers, directors, shareholders, members, managers, employees, agents, representatives and lessors are named as an additional insured. d. Proof of Insurance Coverage; Certificates. Customer shall secure from a good and responsible company or companies authorized to do insurance business in the State of California the
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policies of insurance required by this Agreement and furnish to Company certificates of said insurance on or before delivery or use of the Equ ipment by the Customer . Each policy required herein must be endorsed to provide that the policy shall not be cancelled or reduced in coverage unless the insurer has provided Company with thirty (30) days prior written notice of cancellation or reduction i n coverage.
All insurance policies required to be provided by Customer or any other party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self-insurance, primary or excess, maintained or available to Company. The insurance provisions of this Agreement shall in no way modify Customer’s duty to indemnify, defend and hold Company harmless pursuant to the terms of th is Agreement. Company shall have the right to terminate this Agreement immediately and take possession of the Equipment if the Customer fails at any time to provide and maintain the required insurance or certificates.
7. Trademarks and Intellectual Property. Customer shall not make any use of the Flex Seal® or other Company trademarks, service marks or symbols unless Customer has submitted such proposed use to Company and received Company’s express prior written consent. Customer shall not use Company’s trademarks, service marks or symbols in Customer’s business name or letterhead. Company and its licensor shall be the exclusive
owner of the Flex Seal® trademarks, service marks, symbols, trade secrets, confidential information, know how, copyrights and patents together with all Improvements (as defined hereinafter) to any of the foregoing and
Customer shall not challenge such exclusive ownership or make any unauthorized use. For purposes of this Agreement, “Improvements” shall mean all inventions, modifications, revisions, alterations, enhancements, betterments, ideas and discoveries (whether or not patentable) conceived or reduced to practice (actually or constructively), either solely or jointly with others.
8. Disclaimer of Warranti es. Customer shall be solely responsible for determining whether the goods and Equi pment are appropriate for any project or application or whether the goods must be modified to make them suitable for any project or application. Company makes no represent ation or warranty that the goods or Equipment will be suitable for any particular project or application. It shall be the Customer’s sole responsibility to obtain a mix design from a qualified engineer for each project or application. Company shall have no liability for any mix designs used by Customer.
COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED, AS TO THE GOODS AND EQUIPMENT, INCLUDING BUT NOT LIMITED TO, ANY
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND W ARRANTY OF MERCHANTABILITY.
COMPANY HAS NO CONTROL OVER THE MATERIAL SUPPLIERS SELE CTED BY BUYER OR THE MATERIALS PURCHASED FROM THIRD PARTIES. COMPANY SHALL HAVE NO
LIABILITY FOR ANY MATERIALS PURCHASED BY BUYER FROM ANY
THIRD PARTIES. BUYER SHALL BE SOLELY RESPONSIBLE FOR VERIF YING THAT ALL
MATERIALS OBTAINED BY BUYER FROM THIRD PA RTIES ARE COMPATIBLE WITH ANY MATERIALS PURCHASED BY BUYER FROM COMPANY. BUYER SHALL BE
SOLELY RESPONSIBLE FOR ADJUSTING AND CALIBRATING BUYER’S EQUIPMENT TO
ACCOUNT FOR VARIATIONS IN THE MATERIALS PURCHASED BY BUYER FROM THIRD PARTIES. COMPANY SHALL N OT BE LIABLE FOR ANY CALIBRATION OR OTHER ASSISTANCE THAT MAY BE PROVIDED TO BUYER BY COMPANY.
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9. Limitation of Liability. Company shall not be liable under any circumstances for any special, consequential, incidental, punitive or exemplary damages arising out of or in any way connected with this Agreement to sell goods or rent Equipment to the Customer, including damages for loss of use, lost profits, or damages paid to third parties even if Company has been advised of the possibility of such damages. Customer’s exclusive remedy and Company’s entire liability to Customer shall be limited to the total invoice price paid or incurred by Customer for the goods and/or Equipment that are the subject of any dispute or claim for damages. Customer shall report all alleged problems with the goods and Equipment to Company immediately. Company shall have no liability for any problems which are not reported immediately. No legal action shall be brought by Customer against the Company for any claim with respect to any goods sold or Equipment rented by Company to Customer more than one (1) year after delivery of such goods or Equipment to the Customer. It is agreed that any cause of action with respect to such goods or Equipment shall accrue as the date of delivery of such goods or Equipment.
10. Relationship of the Parties. Nothing in this Agreement shall restrict Company’s right to sell the same or similar goods to third parties. The relationship of the Parties shall be that of purchaser and vendor and/or lessor and lesser, as applicable, and nothing contained in this Agr eement shall be construed to create a joint venture, association, agency, partnership or franchise relationship.
11. Termination. Either Party may terminate this Agreement on thirty (30) calen dar day written notice. Any such termination shall not affec t any accepted orders or the duty of Customer to make payment.
12. Indemnification. Customer shall indemnify, defend, and hold harmless Company and its officers, directors, shareholders, partne rs, members, managers, agents, employees, attorneys, successors, and permitted assigns with respect to any and all claims, demands, liabilities, judgments, awards, liens, losses, damages, or
costs (including reasonable attorneys’ fees and expenses) of any kind or nature arising from or in any manner related to (i) any use of the goods purchased or Equipment rented from Company; or (ii) the failure of Customer to observe or perform the covenants and agreements of Customer under this Agreement (hereinafter c ollectively “Claims”) with the exception of Claims caused by the sole negligence of Company. Customer’s duty to defend, indemnify and hold harmless the Company shall survive the termination of this Agreement for any reason.
13. Further Assurances. Each of the Parties hereto agrees to execute and deliver any and all additional papers and documents, and to do any and all acts reasonably necessary in connection with performance of its obligations hereunder to carry out the intent of the Parties hereto.
14. Entire Agreement. This Agreement and the documents expressly referenced herein, shall constitute the entire Agreement between the Parties hereto with respect to the subject matter hereof, and shall supersede all prior and contemporaneous agreements, repr esentations and negotiations of the Parties concerning the subject matter hereof and the terms applicable thereto.
15. Amendment. This Agreement may not be supplemented, modified or amended in any manner, except by an instrument in writing stating that it is a supplement, modification or amendment of this Agreement and signed by each of the Parties hereto.
16. Waiver. No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provision, whether or not simil ar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.
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17. Successors and Assigns. All terms and provisions contained herein shall inure to the benefit of and shall be binding on each of the Parties hereto and their respecti ve directors, officers, shareholders, partners, members, managers, employees, agents, heirs, representatives, successors and permitted assigns and each of them.
18. Applicable Law. This Agreeme nt shall be deemed to have been entered into, and shall be construed and interpreted, in accordance with the laws of the State of California without reference to California’s application of principles of conflicts of law.
19. Severability. In the event that any provisions hereof are deemed to be illegal or unenforceable, such a determination shall not affect the validity or enforceability of the remaining provisions hereof, all of which shall remain in full force.
20. Form. As used in this Agreement, the masculine, feminine and neuter gender, and singular and plural number shall be deemed to include the other and others whenever the context so indicates. All captions used in this Agreement are for convenience only and shall not be construed in interpreting this Agreement.
21. Time is of The Essence. Time is of the essence for this Agreement and all of the terms, provisions, covenants and conditions hereof.
22. Parties In Interest. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties to it and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any Party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over or against any Party to this Agreement.
23. Remedies. In addition to any other available remed ies, either Pa rty, upon an appropriate showing, shall be entitled to equitable relief including, but not limited to, injunction and specific performance in the event of a
breach or threatened breach of this Agreement. No remedy conferred by any specific provision of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, or now or hereinafter existing at law, in equity, by
statute or otherwise. The el ection of one or more remedies by a Party shall not constitute a waiver of the right to pursue other available remedies.
24. Attorneys’ Fees. The prevailing party in any arbitration or legal action arising out of this Agreement shall be entitled to an award of its attorneys’ fees, expert witness fees and costs.
25. Nonassignability. This Agreement may not be assigned by either Party without the express written consent of each of the Parties. For purposes of this Agreement, the prohibition o n assignment shall also apply to licenses, sublicenses and subcontractors.
26. Interpretation. This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the parties and the parties hereby expressly agre e that any uncertainty or ambiguity existing herein shall not be interpreted against either of them.
27. Force Majeure. Company shall not be responsible for any delays or failure to perform for any reason including, but not limited to, fire, flood, strikes, lockouts, accidents, war, terrorist acts, insurrection, Acts
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of God, inc lement weather, delays in transportation, Equipment failure, shortage of Equipment, governmental interference or regulation, or any other reason beyond Company’s reasonable control.
28. Waiver. No waiver shall be binding, unless executed in writing by t he Party making the waiver.
No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor sh all any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
29. Captions and Headings. The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
30. Notices. All notices required or permitted under this Agreement shall be in writing, shall be sent to the Party’s address as set forth immediately below, shall reference this Agreement, and shall be deemed given (i) when delivered pe rsonally; (ii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one day after deposit with a commercial overnight carrier with verification of receipt.
“Company” Petrochem Materials Innovation, LLC
6168 Innovation Way
Carlsbad, CA 92009
“Customer” _________________
Any correctly addressed notice that is refused, unclaimed, or undeliverable because of any act or omission of the Party to be noti fied will be deemed effective as of the first date that the notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or overnight delivery service. A Party may change its address for purposes of receiving notices by giving notice of said change of address in the manner provided for herein.
31. Arbitration. Any and all controversies, claims and disputes arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in the Co unty of San Diego, State of California, in accordance with the Commercial Arb itration Rules of the American Arbitration Association then in effect. The arbitrator shall be an attorney admitted to practice law in the State of California with at least fiftee n (15) years of business law experience. The award rendered by the arbitrator shall be final and non-appealable and may be entered as a final judgment in any court having jurisdiction thereof. The award of the arbitrator shall be in the form of findings of fact and conclusions of law and shall set forth in detail the legal and factual basis of the decision.
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ATTACHMENT G
CITY OF LOS ANGELES CONTRACT 59680
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ATTACHMENT H
MAPS OF PROGRAMMED STREETS
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OADAVENIDA DEL PUEBLO
REAS
AVENIDA MARAVILLA
PROJECT AREA
AVENIDA MARAVILLA
AVENIDA MARAVILLA
AVENIDA MARAVILLA
SAN MARTIN ST
AVENIDA MARAVILLA
DESCANSO CIRWALKER ST
AVENIDA EL PUEBLO
AVENIDA CONDENSA
AVENIDA VALDEZ
VALENCIA ST
30TH AVE
VISTA CHINO
PASADA RD
LOS GATOS RD
ENCI
NITAS RD
EMPALMO RD
ESPADA RD
ESTIO RD
PELADORA RD
TACHEVAH DR
CONCEPCION RD
TORTUGA RD
HERMOSILLO RD
RISUENO RD
DURANGO RD
VERANO RD
PERLITA RD
VEGA RD
WALKER ST
CORTA RD
ALCITA RD
MCCALLUM WAY
BARISTO RD
ALISO RD
RAMON RD
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AVENIDA LA PAZ
PROJECT AREA
AVENIDA LA PAZ
LANDAU BLVD
AVENIDA LA PAZ
LANDAU BLVD
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AVENIDA LA VISTA
PROJECT AREA
DATE PALM DR
AV
ENI
DA L
A V
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DA
LA
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PAL
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DATE PALM DRIVE
PROJECT AREA
DATE PALM DR
VARNE
R RD
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