718 Sunset Drive, Pacific Grove, CA
September 22, 2021 Not an Official City of Pacific Grove Document 3 Tree Removal
After proper authorization, the tree shall be removed by a licensed insured professional tree service. No surrounding tree protection is necessary when the tree drop zone is clear of City protected vegetation. Tree removal shall be consistent with safe arboricultural work practices utilizing removal of trees and their parts in smaller manageable pieces and roped down carefully so as not to damage any surrounding trees or plants. The use of specialized equipment may be authorized if it can be shown that no damage to the surrounding ecosystem will be sustained. At no time shall any tree be dropped in one piece to damage any surrounding trees or property. Tree wood and clippings are to be disposed of consistent with current California Department of Forestry guidelines which include stockpiling of material on-site or disposal at an approved refuse site.
Replanting
The City of Pacific Grove through its ordinances and the general plan has tree replacement conditions as part of a tree removal permit (when sufficient space exists to replant that does not create an overcrowded vegetated situation). Replacement of the tree would be at the City’s determination
Disclosure Statement
Use of report: This letter and the THEF score sheet are to be considered and used as background information for the current tree removal application process implemented by the City of Pacific Grove. The report is prepared to assist the City, along with other required documents, in determining if and under what circumstances a permit may be issued.
Inspection limitations: The inspection of the tree consisted solely of a visual inspection from the ground. While more thorough techniques are available for inspection and evaluation, they were neither requested nor considered necessary or appropriate at this time. This report is based on a visual inspection of tree conditions and for obvious defects. It is not intended to constitute a complete health and hazard evaluation. Further investigation would be required to more definitively evaluate the health and hazards posed by the subject trees, some of which may not be disclosed by visual inspections. Investigations include but are not limited to core samples, root crown excavation, and visual inspection of the entire trees by climbing.
Please be advised that healthy trees and/or limbs may fail under certain conditions and that the above recommendations are based on industry standards of tree care.
Urban Foresters/Arborists are tree specialists who use their education, knowledge training, and experience to examine trees, recommend measures to enhance their health and beauty, and attempt to reduce the risk of living near trees. Clients may choose to accept or disregard the recommendations of the arborist or to seek additional advice. Trees and other plant life are living, changing organisms affected by innumerable factors beyond our control. Trees fail in ways and because of conditions we do not fully understand.
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718 Sunset Drive, Pacific Grove, CA
September 22, 2021 Not an Official City of Pacific Grove Document 4 Urban Foresters/Arborists cannot detect or anticipate every condition or event that could lead to the structural failure of a tree. Conditions are often hidden within the trees and below ground. Urban Foresters/Arborists cannot guarantee that a tree will be healthy or safe under all circumstances, for any specific period or when a tree or its parts may fail. Further, remedial treatments, as with any treatment or therapy, cannot be guaranteed. Treatment, pruning, bracing and removal of trees may involve considerations beyond the scope of the arborists' skills and usual services such as the boundaries of properties, property ownership, site lines, neighbor disputes and agreements, and other issues. Therefore, urban forester/arborists cannot consider such issues unless complete and accurate information is disclosed in a timely fashion. Then, the urban forester/arborist can be expected, reasonably, to rely upon the completeness and accuracy of the information provided. Trees can be managed but not controlled. To live near trees, regardless of their condition, is to accept some degree of risk. The only way to eliminate all risks associated with trees is to eliminate all trees.
Hazard/hazard potential: For this evaluation and/report, a tree or tree part that presents a threat to humans, livestock, vehicles, structures, landscape features, or other entities of civilization from uprooting, falling, breaking, or growth development (e.g., roots). While all large landscape trees in proximity to such targets present some degree of hazard regardless of their condition, such inherent hazard is not intended as within this definition and its usage in this evaluation and report. As trees and other plant life are living, changing organisms affected by innumerable factors beyond our control, F. O. Consulting and its personnel offer no guarantees, stated or implied, as to tree, plant, or general landscape safety, health, condition or improvement, beyond that specifically stated in writing in accepted contracts.
Thank you very much and please feel free to call if there are any questions or if I can be of further assistance.
Sincerely,
Frank Ono Justin Ono
Certified Arborist # 536 ISA Board Certified Master Arborist #WE-9388B Society of American Foresters # 048004 ISA Tree Risk Assessment Qualified PGCC 1-19-2022
718 Sunset Drive, Pacific Grove, CA
September 22, 2021 Not an Official City of Pacific Grove Document 5 PHOTOGRAPHS
Tree #404, view from the rear yard
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718 Sunset Drive, Pacific Grove, CA
September 22, 2021 Not an Official City of Pacific Grove Document 6 #404 view from the rear yard
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718 Sunset Drive, Pacific Grove, CA
September 22, 2021 Not an Official City of Pacific Grove Document 7 #404 view from driveway, note the yellowing of foliage and initial tip dieback View from the adjacent neighbor back yard on Marino Pines Road PGCC 1-19-2022
718 Sunset Drive, Pacific Grove, CA
September 22, 2021 Not an Official City of Pacific Grove Document 8 View from Marino Pines Road, note yellowing of branch tips Interior of tree #404 from Marino Pines
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A-2.0
WWW.ATELIERINC.COM ~ (831) 402 7413 ROOF PLANSCALE: 1/8"=1'-0" SITE PLANSCALE: 1/8"=1'-0" DIRECT ALL ROOF AND GROUND SURFACE WATER TO PLANTING AREAS 6"+5" k 16" k
23" P
#403
#404
#405
#403
#404
#405
Tree For Removal
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A-2.0
WWW.ATELIERINC.COM ~ (831) 402 7413 ROOF PLANSCALE: 1/8"=1'-0" SITE PLANSCALE: 1/8"=1'-0" DIRECT ALL ROOF AND GROUND SURFACE WATER TO PLANTING AREAS 6"+5" k 16" k
23" P
#403
#404
#405
#403
#404
#405
Tree For Removal
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City of Pacific Grove
300 Forest Avenue, Pacific Grove CA 93950
10/1/21
RE: Requested removal of Monterey pine at 718 Sunset
Mr. Moe Ammar
The City of Pacific Grove has reviewed the revised tree report that was provided to the Public Works Department and has also reviewed the tree in question and in person again on 9/29/2021. Per my original reply of February 8, 2019, Mr. Ono letter dated September 9, 2021, and Mr. Ono report dated September 22, 2021, my decision still stands to deny your request for removal.
As stated by your arborist, the findings are based on Bartlet Research laboratories and personal experience while not pertaining to the current situation of the subject tree.
The original report calls out for Implementation of appropriate construction design approaches to minimize affects, such as hand digging, bridging or tunneling under roots and describes root cutting as accepted and completed during spring, preferably done in the months of late June and July.
The arborist report states If at any time significant roots are discovered that will destabilize or negatively affect the tree, the property owner will be immediately notified and at that point a determination for removal will be assessed and made as required.
No preliminary exploration was noted by your arborist to determine if roots were present that would be in conflict of the proposed project and no contact was made during construction with the city arborist to indicate root pruning would be required or that proper construction design to prevent any damage would be necessary.
Recent findings of your arborist state that recent limb failures are likely do to effects of root removal for development contradicting previous statements that no significant roots were removed.
The city of Pacific Grove takes into great consideration the concerns and safety of its residents. Removal of the tree is premature based on the condition of the tree and lack of findings by your arborist.
Limb failure does occur during weather conditions and unless the entire tree has been compromised and in a state of disrepair, proper maintenance is the correct solution. The tree does have some lower limbs to the north over power lines that are recommended for removal to prevent failure and damage to power and communication lines. A large lateral limb of approximately 12 inches in diameter extends to the south over the constructed ADU. The lateral has been thinned with heavy end weight remaining.
Although the attachment of this limb appears sound, weight reduction or possible removal is suggested as a precaution. One smaller mid canopy lateral limb remains that is compromised and should be removed. There are no indications of advanced beetle activity to the base of the trunk that would be an indication of decline of the tree. No swelling, cavities, conks, mushrooms, fractures, nesting or bird cavities are visible on the trunk that would indicate structural defects are present. The canopy remains intact with normal color and needle length for a tree of this size and age. Thinning canopy to the north is common on mature trees due to age and competition for light. If Pine Pitch Canker is present as stated by the arborist, it is minimal and does not warrant removal of the tree.
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February 8, 2019
Moe and Buttler-Ammar
718 Sunset Dr
Pacific Grove, CA 93950
RE: Request for Monterey pine tree removal 718 Sunset Drive for proposed ADU The request for removal has been denied based on the following reasons; A. The tree in question does not meet the criteria of high-risk tree per the city tree ordinance
12.40.010
B. Per the arborist report, the initial concept (SITE PLAN) was to retain the Monterey pine.
Discussion
Per the arborist report pages 6/7: If at any time significant roots are discovered that will destabilize or negatively affect the tree, the property owner will be immediately notified and at that point a determination for removal will be assessed and made as required. It also goes on to state that Implementation of appropriate construction design approaches to minimize affects, such as hand digging, bridging or tunneling under roots etc. Page 7 of the arborist report (E) describes root cutting as accepted and completed during spring preferably done in the months of late June and July.
This tree is mature and healthy while it is a stand-out tree for the neighborhood. It is visible from Sunset drive and offers value to the surrounding community and wildlife. Trees in good condition can withstand root pruning while under the direction of a project arborist.
Recommendation
Retain the tree.
1. The arborist report does not identify any roots within the canopy of the proposed project that would affect the tree from development.
2. The property does not currently attain the canopy coverage required per CHAPTERS
12.10 TO 12.70 – TREES AND THE URBAN FOREST 12.20.080 Canopy coverage goals.
3. If the ADU is to be developed in the proposed location that is described in the site plan, all work is to be hand done within the canopy of the tree. The project arborist will be notified of roots greater than 4 inches in diameter and the City Arborist is to be notified if the project arborist feels the stability or health of the tree will be compromised by root cutting. All efforts are too be made in regards to root retention by using the latest I.S.A. Best Management Practices - Root Management.
4. Only canopy pruning is allowed for safety trimming and will be approved by the City Arborist per a submitted tree application by the property owner.
Albert Weisfuss
City Arborist
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Agenda No. 12 A
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Daniel Gho, Public Works Director / Deputy City Manager MEETING DATE: January 19, 2022
SUBJECT: Public Works Warehouse and Office Building Fire Replacement and Repair CEQA: Categorical Exemption, CEQA Guidelines Section 15302, Class 2, Replacement or Reconstruction of Existing Structures and Facilities
RECOMMENDATION
Authorize an agreement with Jacob Construction & Design not to exceed $485,643 plus a 15% contingency for the replacement of the metal building & repairs to the administration office at the Public Works Corporation Yard.
DISCUSSION
On June 5, 2021, a vehicle traveling southbound on Grove Acre Ave left the roadway after crossing Sunset Dr. The vehicle struck the curb and continued to travel south crashing through the Public Works chain link fence and colliding with a Public Works building. This caused a major fire that destroyed the metal warehouse, which housed the sites main electrical panels, IT infrastructure, phone systems, and various documents and materials.
The Administrative Office, attached to the metal warehouse, also sustained significant water and smoke damage and is unsafe to occupy.
Following the incident, water and fire remediation activities were conducted to clear debris and damaged materials. A structural engineer was also consulted to assess the damage of the structures and provide recommendations for repair; this review was utilized as the basis for the development of a Request for Qualifications (RFQ) for repairs to the damaged structures on site.
On September 22, 2021, the City issued an RFQ for repairs to the Public Works Yard which included the following scope of work:
Warehouse
· Demolition of the existing 3,240 square foot metal structure · Design of the new structure with plans delivered to City for approvals, and · Fabrication and installation of new warehouse, including paint to match existing buildings on site Administration Office
· Remove and replace damaged 2x4 studs and sheetrock
· Remove entire roof and replace with new trusses, plywood sheathing, trim and 30-year composite roof PGCC 1-19-2022
· Install new flooring, and
· Install central heating unit
On October 20, 2021, the RFQ period closed. The City received two proposals from the following firms
Company Name Bid Amount
Jacob Construction & Design $485,643
Diede Construction Inc. $885,000
City staff has qualified Jocob Construction & Design as the lowest responsible bidder. Their proposal was also reviewed by Sedgwick, the independent insurance adjusters, assisting the California Joint Powers Authority (CJPIA) with the fire claim.
The scope of work for this project does not include electrical repairs. Development of plans and specifications for repairs and upgrades to the Public Works electrical system is currently underway by a qualified electrical engineering firm. Following completion of plans and specifications, the City will issue an RFP. This will be a separate agreement, which will return to the City Council for authorization
OPTIONS
1. Do not authorize agreement and provide alternative direction.
FINANCIAL IMPACT:
This project is funded under the City’s existing property insurance coverage with the California Joint Powers Insurance Authority (CJPIA). The City will be fully reimbursed for this project by Sedgwick, an independent insurance adjuster, assisting the CJPIA with this claim.
The City’s $10,000 deductible related to this claim has already been met with costs associated with the initial post-fire response to get the department operational. This deductible was paid for via the City’s existing Liability Fund budget.
As part of Ordinance 21-026, the City Council authorized a budget adjustment which included the allocation of $300,000 to the Capital Improvement Fund (Fund 63) to cover the initial costs associated with the fire damage repairs. This figure was based on a rough estimate developed by the City’s claims adjuster at the onset of the damage and prior to the issuance of an RFQ. City staff will return with an updated budget adjustment as part of the mid-year budget process to increase the fire damage improvements and repair appropriation to match the authorized contract amount. The mid-year budget is anticipated to be brought for review at the second meeting in February or the first meeting in March.
Attachment 1 is a memo from Sedgwick accepting the $485,643 proposal by Jacob Construction & Design and requesting permission for advanced payment to assist with the commencement of the repairs.
GOAL ALIGNMENT: City Asset Stewardship: Repair, maintain and improve City assets, including streets, sidewalks, sewer systems, buildings, and parks and trails.
Attachments
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Sedgwick Approval Letter
Jacobs Construction Contract
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Logan R. Pase
Phone: 818.736.4980
Fax: 747.477.1115
1612 W. Olive Avenue Suite 301
Burbank, CA 91506
[email protected]
December 16, 2021
City of Pacific Grove
300 Forest Ave
Pacific Grove CA 93950.
Attention: Daniel Gho
Public Works Director
RE: Loss Report Number: 1623692280
Insured: City of Pacific Grove
Coverage: MOC-PP
Term: 07/01/20 - 07/01/21
Date of Loss: June 5
th, 2021
Type of Loss: Vehicle impact / Fire Damage
Location of Loss: Pacific Grove Public Works Yard
2100 Sunset Drive
Pacific Grove, CA 93950
Sedgwick File Number: BUR21039880
Dear Mr. Gho,
As you know, we are independent insurance adjusters assisting the California Joint Powers Insurance Authority (CJPIA) with the investigation of the above captioned claim.
The purpose of this letter is to advise you that we are accepting of the attached repair estimate provided by Jacob Construction Company & Design for $485,643.00 which includes the replacement of the damaged metal building and repair of connected offices at the City of Pacific Grove Public Works Corporate Yard.
If any change orders are received, please notify us forward them to the undersigned as soon as possible for review.
We are requesting permission for advance payment of a portion of the total repair estimate to assist with the commencement of repairs. Once repairs are completed and a final repair invoice has been received, we will request permission to issue final payment.
We thank you for your cooperation in this matter. If there are any questions or concerns, please contact the undersigned.
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Sincerely,
Logan Pase
Regional General Adjuster
Logan R. Pase
Phone: 818.736.4980
Mobile: 747.201.0807
Fax: 747.477.1115
1612 W. Olive Avenue Suite 301
Burbank, CA 91506
[email protected]
Enclosures:
Repair estimate by Jacob Construction Company & Design
PGCC 1-19-2022
1 CITY OF PACIFIC GROVE
CONSTRUCTION SERVICES AGREEMENT
This CONSTRUCTION SERVICES AGREEMENT (“Agreement”), is made and effective January 31, 2022, by and between the City of Pacific Grove, a municipal corporation (“City”), and Jacob Construction & Design (“CONTRACTOR”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on January 31, 2022, and shall remain and continue in effect until tasks described herein are completed, but in no event later than June 30, 2023, unless sooner terminated pursuant to the provisions of this Agreement.
2. SCOPE OF WORK
CONTRACTOR shall perform within the time set forth in the project specifications and shall furnish all labor, materials, equipment, tools, utility services, and transportation and perform and complete all work required in connection with the design/construction of the metal building and repairs to the administration office at the Public Works Yard “Work” for the Public Works Fire Damage Improvements & Repairs Project (hereinafter “Project”).
By entering into this Agreement, CONTRACTOR acknowledges that there may be other contractors on the site whose work will be coordinated with that of its own.
CONTRACTOR expressly warrants and agrees that it will cooperate with other contractors and will do nothing to delay, hinder, or interfere with the work of other separate contractors, the City, the Construction Manager, the Architect, or utilities.
CONTRACTOR also expressly agrees that, in the event its work is hindered, delayed, interfered with, or otherwise affected by a separate contractor, its sole remedy will be a direct action against the separate contractor. To the extent allowed by law, CONTRACTOR will have no remedy, and hereby expressly waives any remedy against the City, the Construction Manager, or the Architect on account of delay, hindrance, interference or other events caused by a separate contractor.
3. PERFORMANCE
a. CONTRACTOR shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all tasks described herein. CONTRACTOR shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of CONTRACTOR hereunder in meeting its obligations under this Agreement.
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2 Construction Services Agreement
b. CONTRACTOR shall conform to the rules and regulations pertaining to safety established by the California Division of Industrial Safety. CONTRACTOR further agrees to take all necessary precautions for the safety of its employees and shall comply with all applicable provisions of federal, state and local regulations, ordinances and codes. CONTRACTOR shall be responsible for erecting and properly maintaining at all times as required by the conditions and progress of the work, all necessary safeguards for the protection of workers and the public and shall post danger signs warning against known or reasonably foreseeable or unusual hazards. c. CONTRACTOR must possess at the time of commencing work and throughout the Project duration, a Contractor’s License, issued by the State of California, which is current and in good standing. CONTRACTOR shall ensure that any subcontractor working on the Project possesses at the time of commencing work and throughout the Project duration, a Contractor’s License, issued by the State of California, which is current and in good standing.
d. CONTRACTOR shall obtain a valid City Business License and shall maintain said Business License for the term of this Agreement and any extensions. e. CONTRACTOR shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by CONTRACTOR or in any way affect the performance of its service pursuant to this Agreement. CONTRACTOR shall at all times observe and comply with all such laws and regulations. City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of CONTRACTOR to comply with this Section.
f. CONTRACTOR agrees to comply with all the applicable provisions of Sections 1777.5 and 1777.6 of the Labor Code, which Sections are hereby specifically referred to, incorporated herein by reference and made a part hereof as though set forth at length herein.
g. CONTRACTOR agrees that in the performance of this Agreement or any subagreement hereunder, neither CONTRACTOR nor any person acting on CONTRACTOR’s behalf shall refuse to employ or refuse to continue in any employment any person on the basis of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sexual preference, sex or age. Harassment in the workplace is not permitted in any form. CONTRACTOR further agrees to comply with all laws with respect to employment when performing this Agreement.
h. CONTRACTOR shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this Agreement.
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3 Construction Services Agreement
i. To ensure performance, CONTRACTOR must provide Faithful Performance and Labor and Material Bonds in favor of City, each in the amount of one hundred percent (100%) of the value of the Agreement.
j. CONTRACTOR declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial agreement or financial inducement. No officer or employee of the City will receive compensation, directly or indirectly, from CONTRACTOR, or from any officer, employee or agent of CONTRACTOR, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to any and all remedies at law or in equity.
4. REGISTRATION REQUIREMENTS
Pursuant to Section 1771.1(a) of the Labor Code:
a. “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.”
b. CONTRACTOR must be registered with the Department of Industrial Relations (DIR) of the State of California in order to be eligible to work on public works projects. CONTRACTOR shall ensure registration with the DIR that is active and in good standing.
c. No contractor or subcontractor may be listed on a bid proposal for a public works project (submitted on or after March 1, 2015) unless registered with the DIR pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
d. No contractor or subcontractor may be awarded a contract for public work on a public works project (awarded on or after April 1, 2015) unless registered with the DIR pursuant to Labor Code section 1725.5.
e. This Project is subject to compliance monitoring and enforcement by the DIR. f. CONTRACTOR is not subject to public works requirements (including registration with the DIR) if the public works project is under $1,000, unless the City knows that PGCC 1-19-2022
4 Construction Services Agreement
the same CONTRACTOR will be awarded total project costs in excess of $1,000 for a given year.
5. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
CONTRACTOR is bound by the contents of City’s Request for Proposal on file at the Public Works Department hereto and incorporated herein by this reference, and the contents of the proposal submitted by CONTRACTOR, available on file at the Public Works Department, hereto and incorporated herein by this reference. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in CONTRACTOR’s proposals.
6. CITY MANAGEMENT
Public Works Director shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by CONTRACTOR, but not including the authority to enlarge the Scope of Work or change the compensation due to CONTRACTOR. The City Manager shall be authorized to act on City’s behalf and to execute all necessary documents which enlarge the Scope of Work or change CONTRACTOR’s compensation, subject to Section 7 hereof.
7. PAYMENT
a. City agrees to pay CONTRACTOR monthly, in accordance with the bid on file at the Public Works Department attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. THIS AMOUNT SHALL NOT EXCEED $485,643 PLUS A 15% CONTINGENCY which sum shall include all costs, if any, for the total term of the Agreement unless additional payment is approved as provided in this Agreement. b. The City Manager’s contract authority is limited to a total threshold of $40,000, which includes all costs. Contracts, including any contract amendments that exceed the total threshold, require City Council approval. Any contracts, including contract amendments that exceed the total threshold, which do not have City Council approval, shall be void.
c. CONTRACTOR will submit invoices monthly for actual services performed. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of CONTRACTOR’s fees, it shall give written notice to CONTRACTOR within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice.
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d. Retention of securities: Public Contract Code Section 22300 permits the substitution of securities for any monies withheld by a public agency to ensure performance under a contract, at the request and expense of CONTRACTOR.
e. Final Payment: Final payment, constituting the entire unpaid balance of the Agreement Sum, shall be paid by the City to the CONTRACTOR no sooner than thirty-five (35) days after a Notice of Completion has been recorded, unless otherwise stipulated in the Notice of Completion, provided the work has then been completed, the Agreement fully performed, and a final Certificate for Payment has been issued by the Architect.
8. INSPECTION
City shall at all times have the right to inspect the work and materials. CONTRACTOR shall furnish all reasonable aid and assistance required by City for the proper examination of the work and all parts thereof. Such inspection shall not relieve CONTRACTOR from any obligation to perform said work strictly in accordance with the specifications or any modifications thereof and in compliance with the law.
9. CONTRACTOR’S FAILURE TO PROCURE COMPLETION OF PROJECT In the event CONTRACTOR fails to furnish tools, equipment, or labor in the necessary quantity or quality, or fails to prosecute the work or any part thereof contemplated by this Agreement in a diligent and workmanlike manner, and if CONTRACTOR for a period of three (3) calendar days after receipt of written demand from City or its designated representative to do so, fails to furnish tools, equipment, or labor in the necessary quantity or quality, and to prosecute its work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within said three (3) calendar days, fails to continue to do so; then City may exclude the CONTRACTOR from the premises, or any portion thereof, and take possession of said premises or any portion thereof, together with all material and equipment thereon, and may complete the work contemplated by this Agreement or any portion of said work, either by furnishing the tools, equipment, labor or material necessary, or by letting the unfinished portion of said work, or the portion taken over by the City to another contractor or by a combination of such methods. In any event, the procuring of the completion of said work, or the portion thereof taken over by the City, shall be a charge against the CONTRACTOR, and may be deducted from any money due or becoming due to CONTRACTOR from the City, or the CONTRACTOR shall pay the City the amount of said charge, or the portion thereof unsatisfied. The sureties, provided for under this Agreement shall become liable for payment should CONTRACTOR fail to pay in full any said cost incurred by the City.
10. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE a. City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon CONTRACTOR at least thirty (30) days prior written notice. Upon receipt of said notice, CONTRACTOR shall immediately cease all work under this Agreement, unless the notice provides otherwise.
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If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. b. In the event this Agreement is terminated pursuant to this Section, City shall pay to CONTRACTOR the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, CONTRACTOR will submit an invoice to the City pursuant to Section 7.c.
11. DEFAULT OF CONTRACTOR
a. CONTRACTOR’s failure to comply with the provisions of this Agreement shall constitute a default. In the event CONTRACTOR is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating CONTRACTOR for any work performed after the date of default and can terminate this Agreement immediately by written notice to CONTRACTOR. If such failure by CONTRACTOR to make progress in the performance of work hereunder arises out of causes beyond CONTRACTOR’s control, and without fault or negligence of CONTRACTOR, it shall not be considered a default. b. If the City Manager or designee determines CONTRACTOR is in default in the performance of any of the terms or conditions of this Agreement, they shall cause to be served upon CONTRACTOR a written notice of the default. CONTRACTOR shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event CONTRACTOR fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
12. OWNERSHIP OF DOCUMENTS
a. CONTRACTOR shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by City that relate to the performance of services under this Agreement. CONTRACTOR shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
CONTRACTOR shall provide free access to the representatives of City or its designees at reasonable times to such books and records; shall give City the right to examine and audit said books and records at CONTRACTORS office; shall permit City to make copies and transcripts there from as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained at the City of Pacific Grove City Hall for a minimum period of three (3) years after receipt of final payment.
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b. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed 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 CONTRACTOR.
With respect to computer files, CONTRACTOR shall make available to City, at City’s office and upon reasonable written request by City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files.
13. RECORD AUDIT
In accordance with Government Code, Section 8546.7, records of both City and CONTRACTOR shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.
14. INDEMNIFICATION
CONTRACTOR shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONTRACTOR’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the City. Should conflict of interest principles preclude a single legal counsel from representing both City and CONTRACTOR, or should City otherwise find CONTRACTOR’s legal counsel unacceptable, then CONTRACTOR shall reimburse the City its costs of defense, including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation. The CONTRACTOR shall promptly pay any final judgment rendered against the City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the CONTRACTOR’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
CONTRACTOR obligations under this section apply regardless of whether such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee.
However, without affecting the rights of City under any provision of this agreement, CONTRACTOR shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where PGCC 1-19-2022
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City’s active negligence accounts for only a percentage of the liability involved, the obligation of CONTRACTOR will be for that entire portion or percentage of liability not attributable to the active negligence of City.
15. INSURANCE
Prior to the beginning of and throughout the duration of the Work, CONTRACTOR and its subcontractors shall maintain insurance in conformance with the requirements set forth below. CONTRACTOR will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth herein, CONTRACTOR agrees to amend, supplement or endorse the existing coverage to do so.
CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to CONTRACTOR or its subcontractors in excess of the limits and coverage identified in this Agreement and which is applicable to a given loss, claim or demand, will be equally available to City.
16. INDEPENDENT CONTRACTOR
a. CONTRACTOR is and shall at all times remain as to City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of CONTRACTOR shall at all times be under CONTRACTOR’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of CONTRACTOR or any of CONTRACTOR’s officers, employees, or agents, except as set forth in this Agreement. CONTRACTOR shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. CONTRACTOR shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner.
b. No employee benefits shall be available to CONTRACTOR in connection with the performance of this Agreement. Except for the fees paid to CONTRACTOR as provided in the Agreement, City shall not pay salaries, wages, or other compensation to CONTRACTOR for performing services hereunder for City. City shall not be liable for compensation or indemnification to CONTRACTOR for injury or sickness arising out of performing services hereunder.
c. Any and all employees or sub-contractors of CONTRACTOR under this Agreement, while engaged in the performance of any work or services required by CONTRACTOR under this Agreement, shall be considered employees or sub-contractors of CONTRACTOR only and not of city. Any and all claims that may arise under the Workers’ Compensation Act on behalf of said employees or sub-contractors, while so engaged and all claims made by a third party as a consequence of any negligent act or PGCC 1-19-2022
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omission on the part of the CONTRACTOR’s employees or sub-contractors, while so engaged in any of the work or services provided for or rendered herein shall not be City’s obligation.
17. PREVAILING WAGE
Wage rates for this Project shall be in accordance with the “General Wage Determination Made by the Director of Industrial Relations Pursuant to California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773 and 1773.1”, for Monterey County. Wage rates shall conform with those posted by Contractor and at the Project site. The following Labor Code sections are hereby referenced and made a part of this Agreement:
a. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates. b. Section 1777.4 - Apprenticeship Requirements.
c. Section 1777.5 - Apprenticeship Requirements.
d. Section 1813 - Penalty for Failure to Pay Overtime.
e. Sections 1810 and 1811 - Working Hour Restrictions.
f. Section 1775 - Payroll Records.
g. Section 1773.8 - Travel and Subsistence Pay.
h. Section 1778 – Kickbacks.
i. Section 1779, 1780 – Acceptance of Fees.
j. Section 1771.4 – Certified Payroll.
Pursuant to the Labor Code, City is required to withhold from any progress payments owed to a contractor any amount that has been forfeited as penalties, or as wages owed to employees who have not been paid the prevailing wage for work performed. This allows the intervention by the Division of Labor Standards Enforcement, which is headed by the State Labor Commission, in a contractor’s lawsuit for recovery of amounts withheld by an awarding body. All withheld wages and penalties will be transferred to the Labor Commissioner for disbursement in those cases where a contractor fails to bring a lawsuit for amounts withheld within ninety (90) days after completion of the public works contract and formal acceptance of the job by the awarding body. The Labor Commissioner is then permitted to intervene in any lawsuit brought by the contractor against an awarding body for recovery of amounts withheld.
18. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during their tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for Work to be performed in connection with the Project performed under this Agreement.
19. CONFLICT OF INTEREST
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CONTRACTOR shall at all times avoid conflicts of interest, or the appearance of conflicts of interest, in the performance of this Agreement.
CONTRACTOR covenants that neither they nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly nor indirectly, which will conflict in any manner or degree with the performance of their services hereunder. CONTRACTOR further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent, or sub-contractor.
CONTRACTOR further covenants that CONTRACTOR has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area and further covenants and agrees that CONTRACTOR and/or its sub-contractors shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area prior to the completion of the work under this Agreement.
If City determines CONTRACTOR comes within the definition of Contractor under the Political Reform Act (Government Code §87100 et seq.), CONTRACTOR shall complete and file and shall require any other person doing work under this Agreement to complete and file a “Statement of Economic Interest” with City disclosing CONTRACTOR’s and/or such other person’s financial interests.
20. NO WAIVER OF BREACH/TIME
The waiver by City of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or provision or any subsequent breach of the same or any other term or promise contained in this Agreement. Time is of the essence in carrying out the duties hereunder.
21. CONFIDENTIAL INFORMATION/RELEASE OF INFORMATION
a. All information gained by CONTRACTOR in performance of this Agreement shall be considered confidential and shall not be released by CONTRACTOR without City’s prior written authorization. CONTRACTOR, its officers, employees, agents, or subcontractors, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered “voluntary” provided CONTRACTOR gives City notice of such court order or subpoena.
b. CONTRACTOR shall promptly notify City should CONTRACTOR, its officers, employees, agents, or sub-contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or PGCC 1-19-2022
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party regarding this Agreement and the work performed there under or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent CONTRACTOR and/or be present at any deposition, hearing, or similar proceeding. CONTRACTOR agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by CONTRACTOR. However, City’s right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
22. SUBSURFACE HAZARDOUS MATERIALS
a. In the event trenches or other excavations extend deeper than four (4) feet below the surface, CONTRACTOR shall promptly, and before the following conditions are disturbed, notify the City in writing of any:
i. Material that CONTRACTOR believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II or Class III disposal site in accordance with the provisions of existing law.
ii. Subsurface or latent physical conditions at the site differing from those indicated.
iii. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in the Work or the character provided for in the Agreement. b. Upon receipt of said notification, City will investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the CONTRACTOR’s cost of or the time required for performance of any part of the work, the City will issue a change order under the procedures described in the Specifications.
c. In the event a dispute arises between the City and CONTRACTOR whether the conditions materially differ, or involve hazardous waste or cause a decrease or increase in the CONTRACTOR’s cost of or time required for performance of any part of the work, CONTRACTOR shall not be excused from any scheduled completion date provided for by the Agreement, but shall proceed with all work to be performed under the Agreement. CONTRACTOR shall retain any and all rights provided either by Agreement or by law which pertain to the resolution of disputes and protests between the contracting parties.
23. LIQUIDATED DAMAGES
Pursuant to Government Code Section 53069.85, if Work is not completed within the Agreement time or in strict accordance with the Project Schedule, it is understood, acknowledged and agreed that the City will suffer damage. It is therefore agreed that the PGCC 1-19-2022
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CONTRACTOR shall pay to the City the $1,000 or each and every calendar day of delay beyond the Agreement Time, or beyond any completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule, or beyond the time indicated in the Project Schedule for any individual Agreement activity.
CONTRACTOR expressly understands, acknowledges and agrees that such liquidated damages can and shall be imposed if the CONTRACTOR does not meet each and every aspect of any activity schedule, completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule. If the City accepts work or makes any payment under this Agreement after a default by reason of delays, the acceptance of such work and/or payment(s) shall in no respect constitute a waiver or modification of any provisions regarding Agreement Time, a completion schedule, the Project Schedule or the accrual of liquidated damages. In the event the same is not paid, the CONTRACTOR further agrees that City may deduct the amount thereof from any money due or that may become due the CONTRACTOR under the Agreement. This Section does not exclude recovery of damages under provisions of the Agreement Documents and is expressly in addition to the City’s ability to seek other damages.
Parties will meet and agree on a contract schedule. Liquidated damages may be assessed if any individual activity duration exceeds the time indicated for that activity on the Project Construction Schedule.
24. WARRANTY
In addition to any and all warranties provided or implied by law or public policy, CONTRACTOR warrants that all Services (including but not limited to all equipment and materials supplied in connection therewith) shall be free from defects in design and workmanship, and that CONTRACTOR shall perform all Services in accordance with all applicable engineering, construction and other codes and standards, and with the degree of high professional skill normally exercised by or expected from recognized professional firms engaged in the practice of supplying services of a nature similar to the Services in question. CONTRACTOR further warrants that, in addition to furnishing all tools, equipment and supplies customarily required for performance of work, CONTRACTOR shall furnish personnel with the training, experience and physical ability, as well as adequate supervision, required to perform the Services in accordance with the preceding standards and the other requirements of this Agreement. In addition to all other rights and remedies which City may have, City shall have the right to require, and CONTRACTOR shall be obligated at its own expense to perform, all further services which may be required to correct any deficiencies which result from CONTRACTOR’s failure to perform any Services in accordance with the standards required by this Agreement. Moreover, if, during the term of this Agreement (or during the one (1) year period following the term hereof), any equipment, goods or other materials or Services used or provided by CONTRACTOR under this Agreement fail due to defects in material and/or workmanship or other breach of this Agreement, CONTRACTOR shall, upon any reasonable notice from City, replace or repair the same to City’s satisfaction. Unless otherwise expressly permitted, all materials PGCC 1-19-2022
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and supplies to be used by CONTRACTOR in the performance of the Services shall be new and best of kind.
CONTRACTOR hereby assigns to City all additional warranties, extended warranties, or benefits like warranties, such as insurance, provided by or reasonably obtainable from suppliers of equipment and material used in the Services.
25. CLAIM PROCEDURES UNDER PUBLIC CONTRACT CODE SECTION 9204 CONTRACTOR shall comply with the procedure set forth in Public Contracts Code section 9204 for any claim, as that term is defined therein, for one or more of the following: 1) a time extension, including, without limitation, for relief from damages or penalties for delay, 2) payment of money or damages arising from work done pursuant to this Agreement, and/or 3) payment of an amount disputed by the City under this Agreement.
26. NOTICES
Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice:
To City: Daniel Gho, Public Works Director
City of Pacific Grove
300 Forest Avenue
Pacific Grove, CA 93950
To CONTRACTOR: Jacob Pickering, President
2436 Broad Street, Suite A
San Luis Obispo, CA 93401
805-441-1766
27. THIRD PARTY BENEFICIARIES
Nothing contained in this Agreement shall be construed to create, and the parties do not intend to create, any rights in third parties.
28. ASSIGNMENT
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CONTRACTOR shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. Subject to the foregoing, all terms of the Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their successors and assigns.
29. GOVERNING LAW
City and CONTRACTOR understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in Monterey County, or the federal district court with jurisdiction over the City. CONTRACTOR agrees not to commence or prosecute any dispute arising out of or in connection with this Agreement other than in the aforementioned courts and irrevocably consents to the exclusive personal jurisdiction and venue of the aforementioned courts.
30. ATTORNEY’S FEES AND COURT VENUE
Should either party to this Agreement bring legal action against the other (formal judicial proceeding, mediation or arbitration) the party prevailing in such action shall be entitled to a reasonable attorney’s fee which shall be fixed by the judge, mediator or arbitrator hearing the case, and such fee shall be included in the judgment together with all costs.
31. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of CONTRACTOR warrants and represents that they have the authority to execute this Agreement on behalf of the CONTRACTOR and the authority to bind CONTRACTOR to the performance of its obligations hereunder.
32. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material.
33. AGREEMENT CONTAINS ALL UNDERSTANDINGS: AMENDMENT
a. This document represents the entire and integrated Agreement between City and CONTRACTOR, and supersedes all prior negotiations, representations and agreements, either written or oral.
b. Any modification or amendment to this Agreement must be in writing.
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c. Neither City nor CONTRACTOR shall be deemed to have waived any obligation of the other, or to have agreed to any modification to this Agreement unless it is in writing, and signed by the party giving the waiver.
34. SEVERABILITY
If any term of this Agreement is held invalid by a court of competent jurisdiction or arbitrator the remainder of this Agreement shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
CITY OF PACIFIC GROVE CONTRACTOR
By: By:
Public Works Director .
Date: Date:
By: ___________________________ By: ____________________________ City Mayor
Date: ___________________________ Date: ___________________________ Approved As To Form:
City Attorney
_______________________________
Date
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Exhibit A
Scope of Work/Services
CONTRACTOR shall provide the City with services per the Request for Qualifications (RFQ) titled “Design/Build Services for Public Works Department Metal Building & Repairs to the Administrative Office,” issued September 22, 2021, and the Statement of Qualification (SOQ) submitted by Jacobs Construction & Design dated October 20, 2021. The RFQ and SOQ are incorporated herein by reference and made an integral part of this agreement.
The Scope of Work for the project is noted below.
METAL BUILDING
The scope of work for the metal building includes:
• Demolition: Demolition of the existing 3,240 SF main metal structure and 2 small structures on the east side of the building (approximately 20’x 12’ and 16’ x12’).
Demolition activities shall include proper hauling and disposal of materials. • Deliverable: This task shall also include development of a demolition and disposal plan which shall be an element of the final Construction Documents submittal.
• Design of a new metal structure. Design development shall include:
o Saw-cutting and/or core drilling to determine the typical representative footing sizes for the new steel framed structure, to assure it meets design requirements. o Ensuring the design shall allow for proper venting, egress, and meet all California Building Code requirements
o Incorporation of an additional exterior door on the east side of the building (approximate dimensions 12’ x10’) to accommodate equipment o In addition to the main building structure, the design shall include a metal generator enclosure (~16”x 12”) and a metal storage shed (20’ x 12’) • Deliverable: A full set of design plans shall be submitted to the City in advance of fabrication and final construction drawings. • Fabrication and installation. The metal structures shall be fabricated and installed based on the approved plans and specifications following the design process o Once installed the new metal structure shall be painted to match the adjacent bays • Deliverable: Construction Documents shall be submitted to the City.
ADMINISTRATIVE OFFICE
The scope of work for repairs to the administrative office building includes:
• Removal and replacement of all 2” x 4” studs on the backwall • Installation of sheetrock walls with smooth finish (40’x 8’) • Removal and replacement of the roof plywood sheathing (to match existing thickness) • Removal and replacement roof trusses for the entire length of the office building • Installation of ~700 SF of Commercial LVT wood plank 138 Kingsley and reinstall existing trim (to be provided by the City)
• Installation of new 30-year composite asphalt shingle roofing to match existing roofing materials
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• Installation of central heating for a building the size of ~700 SF with 4 heating registers (1 in the restroom, 2 on the backwall and 1 in the office) and ducting. o Heating Specifications: Bryant forced air heating system, 40,000 BTU output, energy efficient
All work outlined in this agreement, and in the RFQ document, shall be performed in a workman like manner and in accordance with industry standards.
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Exhibit B
Insurance Specifications
General liability insurance. CONTRACTOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $2,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile liability insurance. CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONTRACTOR arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
Workers’ compensation insurance. CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.
CONTRACTOR shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.
Builder’s risk insurance (construction contracts as applicable). Upon commencement of construction and with approval of City, CONTRACTOR shall obtain and maintain builder’s risk insurance for the entire duration of the Project until only the City has an insurable interest. The Builder’s Risk coverage shall include the coverages as specified below.
The named insureds shall be CONTRACTOR and City, including its officers, officials, employees, and agents. All Subcontractors (excluding those solely responsible for design Work) of any tier and suppliers shall be included as additional insureds as their interests may appear. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to City. The policy shall contain a provision that all proceeds from the builder’s risk policy shall be made payable to the City.
The City will act as a fiduciary for all other interests in the Project.
Policy shall be provided for replacement value on an “all risk” basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) PGCC 1-19-2022
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coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) Ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) Ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site or any staging area. Such insurance shall be on a form acceptable to City to ensure adequacy of terms and sublimits and shall be submitted to the City prior to commencement of construction.
1. Other provisions or requirements
Proof of insurance. CONTRACTOR shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s risk manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of coverage. CONTRACTOR shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by CONTRACTOR, his agents, representatives, employees or subcontractors. CONTRACTOR must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. City and its officers, officials, employees, and agents shall continue as additional insureds under such policies.
Primary/noncontributing. Coverage provided by CONTRACTOR shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
Products/completed operations coverage. Products/completed operations coverage shall extend a minimum of three (3) years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors.
If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage.
Policy shall specifically provide for a duty to defend on the part of the insurer. The City, its PGCC 1-19-2022
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officials, officers, agents, and employees, shall be included as additional insureds under the Products and Completed Operations coverage.
City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by CONTRACTOR or City will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, City may cancel this Agreement.
Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of Agreement provisions (non estoppel). CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of the City to inform CONTRACTOR of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the CONTRACTOR maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
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Additional insured status. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that CONTRACTOR’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass Through Clause. CONTRACTOR agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by CONTRACTOR, provide the same minimum insurance coverage and endorsements required of CONTRACTOR. CONTRACTOR agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. CONTRACTOR agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review.
City’s right to revise requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the CONTRACTOR a ninety (90)-day advance written notice of such change. If such change results in substantial additional cost to the CONTRACTOR, the City and CONTRACTOR may renegotiate CONTRACTOR’s compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
Timely notice of claims. CONTRACTOR shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from CONTRACTOR’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work
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Agenda No. 13 A
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Laurel O'Halloran, Associate Planner
MEETING DATE: January 19, 2022
SUBJECT: Status of the City's MPWMD Water Allocation, Water Entitlement and City's Water Wait List Architectural Permits
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
Receive a report on the status of the City’s water reserves per the November 2021 Monterey Peninsula Water Management District (MPWMD) monthly allocation report and monthly entitlement report and discuss potential options for owners on the City’s Water Wait List.
DISCUSSION
The Municipal Code PGMC 11.68 governs the City’s water distribution regulations and established priority dates for wait-listed applications. City Council last received a status report on March 4, 2021.
Each month, the MPWMD releases a Monthly Allocation Report and a Monthly Entitlement Report in the MPWMD Regular meeting agenda packet. The most recent reports available for the month of November 2021 state the City has a total of 31.762 acre-feet of entitlement water available for purchase.
Entitlement Water
Entitlement water became available in 2019 and the City began sales of entitlement water in July 2019.
Residential projects requesting water include existing established single-family residential units that are purchasing entitlement water to add bathroom(s), laundry rooms and/or utility sinks and accessory dwelling units (ADU’s).
Approximately 9.296 AF remains available for purchase for affordable units. This includes ADU’s according to Council's entitlement water allocation direction. This amount represents approximately 150 new ADU’s or 87 multi-family units using the MPWMD factors. To date new accessory dwelling units, represent the bulk of the 2.204 AF of affordable housing entitlement water that is distributed. These are new residential units that serve to increase the City's housing stock. On December 15, 2021, the City Council agreed to extend the existing 30% discount to the water entitlement price until the end of the 21/22 fiscal year.
Commercial projects utilizing entitlement water include the PG Hotel located at 157 Grand Ave. and the mixed-use project at 520 Lighthouse Ave. Water has been distributed by the MPWMD for the 520 Lighthouse mixed use project, final occupancy is not granted until the promissory agreement is paid in PGCC 1-19-2022
full. Council will be considering a promissory agreement for the PG Hotel as well.
Water Wait List Update
The City has maintained a Water Wait List (WWL) for vacant properties where owners are unable to purchase water entitlement. California American Water (Cal-Am) has been operating under a de facto moratorium since 2009 when the State Water Resources Control Board (SWRCB) issued a cease-and-desist order (CDO) reducing Cal-Am Carmel River water diversions thereby limiting the utility's ability to set new water meters on vacant properties.
In other words, all vacant properties throughout the City that do not already have a water meter cannot be provided one by Cal-Am. There are eleven (11) vacant lots on the WWL due to the property owner's current inability to receive a new meter. In August 2021 the City Council voted to adopt Ordinance 21-022 a temporary moratorium on new Community Development applications for projects not able to obtain water permits by reason of the SWRCB CDO. While this is helpful for preventing new applicants from being caught in a situation of expiring Architectural Permits (AP), it does not help people already on the WWL.
WATER WAIT LIST AND EXPIRED ARCHITECTURAL PERMITS
Staff has been asked to provide the City Council with options to assist the property owners who are on the City’s wait list.
Option 1: Contact each property owner on the WWL to see if they would prefer to be removed if they could have the permit fees refunded. To refund the owners on the wait list would cost approximately $36,500.
Option 2: If directed, Staff would undertake amendment(s) to the Pacific Grove Municipal Code Title
23.73.050 (c) to include language (shown in underline) pertaining to the Water Wait Listed Architectural Permits as follows:
(c) Extensions of Time by Chief Planner. The chief planner is authorized to renew any community development permit that would otherwise expire after one year. Renewals shall be for one year with a maximum of two renewals. If the property is on the WWL, the community development permit shall be considered valid for five (5) years with a one-time five (5) year renewal option.
This process would allow an owner with an approved Architectural Permit (AP) that is also on the WWL to have a 10-year lifespan; and at the time the property is issued a water meter the applicant may apply directly for a building permit. As with all building permits, Planning staff would conduct a plan check review to ensure compliance with the approved discretionary permit. If there are substantial changes to the original approved AP then an appliation for an amendment to the planning approval will be required.
Option 2a: The City Council could require an alternative time frame from that above for the vested WWL Architectural Permits to be reviewed and notice the neighbors at a minimal cost to the applicants, such as every five years or every ten years. If this route is chosen it could result in an approved permit having to return to the review authority for a noticed public hearing when there may or may not be substantive changes to the approved design. Staff does not recommend this option.
OPTIONS
1. Take no action.
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1. Take no action.
2. Provide an alternative direction.
FINANCIAL IMPACT:
Allocation and/or sales of potable water to property owners for property improvements may result in increased property tax revenue for the City. Potential financial benefits include increased sales tax from commercial projects, increased sales taxes from commercial leases on City owned property and increased tourism due to improvements, and potential increased revenue from higher assessed values of residential projects. An update on water entitlement sales is anticipated to be provided as part of the mid-year budget process.
The adoption of Option 1 (permit fee refunds) would have a financial impact of approximately $36,500.
GOAL ALIGNMENT: Transparency, Accountability and Communication: Implement programs, processes, revisions, and training to improve and advance the City's efforts.
Attachments
MPWMD Report
PGCC 1-19-2022
PGCC 1-19-2022
Agenda No. 13 B
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Laurel O'Halloran, Associate Planner
MEETING DATE: January 19, 2022
SUBJECT: Promissory Agreement for Payment of Water Entitlement for the PG Hotel, formerly known as the Hotel Durrell
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
Approve a promissory agreement for water entitlement for the Pacific Grove (PG) Hotel, formerly known as the Hotel Durrell, to be located at 157 Grand Avenue (APN 006-173-002)
DISCUSSION
The Pacific Grove Municipal Code (PGMC) sets forth water distribution rules in Title 11. Chapter 11.68 governs Water Entitlement processes by which potable water made available by funding and operation of the Pacific Grove Local Water Project (PGLWP) are available for sale. The City began sales of entitlement water in July 2019.
Commercial projects purchasing water entitlement include the PG Hotel located at 157 Grand Avenue and the mixed-use project at 520 Lighthouse Ave. Water has been distributed by the MPWMD for the 520 Lighthouse mixed-use project. Final occupancy will not be granted until the promissory agreement is paid in full.
At the September 1, 2021, City Council meeting the City Council adopted Ordinance 21-023 to approve a code change to 11.68.040 Entitlement Water to enable Promissory Agreements associated with payment of entitlement water sales. Per PGMC 11.68.040 (c), City Council approval shall be required for the City to enter into any promissory agreement related to payment for entitlement water. The maximum amount payable pursuant to the promissory agreement shall not exceed 90 percent of the purchase price with a 10 percent deposit required at the time of the execution of the agreement.
The PG Hotel is requesting Council approval for a Promissory Agreement to defer the payment of water entitlement, due to the scale of the project. The opportunity to stage costs can promote completion of projects that rely on construction loan financing. The obligation to pay water entitlement costs will be secured by the City’s ability to withhold final occupancy permits. The 8.66 acre-feet requested will cost $1,515,500.00 with the 30% discount recently reauthorized by the City Council and in effect until June 2022. The required 10% deposit in the amount of $151,550.00 will need to be paid to execute the Promissory Agreement.
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OPTIONS
1. Do not approve Promissory Agreement.
2. Provide an alternative action.
FINANCIAL IMPACT:
The issuance of a Promissory Agreement is neither a gift or water nor of public funds. The Agreement simply allows the developer of a large project, as defined in PGMC 11.68.040, to leverage financing so that the large financial outlay associated with the purchase of water can be deferred until the time of final inspection and certificate of occupancy. This is a tool that can help investment in the City and increase revenues. Resulting from increased sales and property tax. Conversely, the City will not “lose” money if the applicant defaults on the Agreement as no the Agreement does not constitute a loan and the City will retain the 10% deposit.
GOAL ALIGNMENT: Facilitate Local Business Recovery: Review and revise existing policies and programs and develop a strategic plan to better serve existing businesses.
Attachments
Draft Promissory Agreement
Draft Deed of Trust
Certificates of Good Standing
Water Release Form
Water Subscription Agreement
PGCC 1-19-2022
Water Promissory Note
1 PROMISSORY AGREEMENT
This Promissory Note, (“NOTE”) dated for reference purposes as of ______________ (“Effective Date”), is made in consideration of the mutual covenants and conditions set forth below, by which the Parties agree as follows:
The CITY OF PACIFIC GROVE (CITY)
hereby promises to sell, transfer and convey to
ROHNERT PARK RI LP, BELVNUS, LLC,
TRAVEL INN ASSOCIATES, LP, and MOHAMMAD REZAI
(Collectively, BUYER)
Water Entitlement in the amount totaling 8.66 AF which is the subject of this NOTE under the terms and conditions set forth below.
FOR VALUE RECEIVED, THE UNDERSIGNED, JOINTLY AND SEVERALLY, PROMISES:
1. BUYER is the owner of record of the property commonly known as 157 Grand Avenue, APNs 006-174-003, 006-174-011, & 006-174-012 (the Property). Title of the Property is taken as follows:
ROHNERT PARK RI LP. A CALIFORNIA LIMITED PARTNERSHIP
AS TO AN UNDIVIDED 62.0% INTEREST; BELVNUS, LLC, A
CALIFORNIA LIMITED LIABILITY COMPANY AS TO AN
UNDIVIDED 21.0% INTEREST; TRAVEL INN ASSOCIATES, LP, A
CALIFORNIA LIMITED PARTNERSHIP AS TO AN UNDIVIDED
7.0% INTEREST AND MOHAMMAD REZAI, A MARRIED MAN AS
HIS SOLE AND SEPARATE PROPERTY AS TO AN UNDIVIDED
10.0% INTEREST
2. This NOTE evidences the obligation of BUYER to CITY for repayment of funds under a Water Subscription Agreement between BUYER and CITY. The terms and covenants of the Water Subscription Agreement are incorporated in this NOTE by reference, as if set forth in its entirety.
3. The Water Entitlement subject to this NOTE shall be used coley upon the Property and shall be subject to the conditions contained herein and in Water Subscription Agreement.
4. PRINCIPAL: BUYER promises to pay CITY the principal sum of $1,515,500.00, calculated at the rate of $175,000 per Acre Foot.
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Water Promissory Note
2 PAYMENT PROVISIONS: This Note shall be repaid by an initial down payment of $151,550.00, representing ten percent (10%) of the NOTE’s Principal. This down payment is non-refundable and shall be due upon execution of this NOTE. Payment of the remaining balance shall be deferred until BUYER submits a Notice of Completion to CITY. A Final Inspection shall be dependent on full and complete satisfaction of this NOTE and release of the Water Entitlement for use by BUYER on the property At any time while not in default under this NOTE, BUYER may pay the outstanding balance then owing under this NOTE to CITY, without penalty.
5. INTEREST: This NOTE shall accrue interest at the rate of zero (0) percent per annum provided the BUYER is not in default. Should the BUYER be in default as to the terms of the NOTE, interest on the unpaid principal of this NOTE shall accrue interest which shall be payable at the rate of ten (10) percent per annum.
6. This NOTE is secured by a Deed of Trust recorded in the office of the County Recorder of Monterey County (Trust Deed). The Trust Deed securing this NOTE provides that CITY may at its option, declare all funds secured by the Trust Deed immediately due and payable, if any interest in the real property is sold, transferred or conveyed to any person, whether voluntarily or involuntarily. The Trust Deed further provides that if BUYER does not comply with the requirements of the Water Subscription Agreement and fails to come into compliance with the Agreement within ten (10) days after CITY’s written notice to BUYER of such failure, CITY may at its option, declare all funds secured by the Trust Deed immediately due and payable.
7. To the extent applicable, BUYER shall maintain its corporate existence in good standing in California. BUYER shall maintain in force all licenses, approvals, and agreements, the loss of which could have a material adverse effect as to performance on this NOTE. BUYER shall provide to CITY a Certificate of Good Standing or Certificate of Existence from the appropriate authority, submitted within ten days upon request by CITY, certifying that BUYER is in good standing as a corporation or as an LLC, as may be applicable, in the State of California.
8. DEFAULT: All sums remaining unpaid under this NOTE shall become immediately due and payable, at CITY’s option, upon ten (10) day’s calendar notice without further demand, or presentment, and regardless of any prior forbearance, on the occurrence of any of the following events:
a. BUYER’s failure to make any payment when due under the terms of this NOTE; b. The filing of a petition in bankruptcy by, or the initiation of any proceeding under any bankruptcy or insolvency laws against, the BUYER or any present or future guarantor of this NOTE;
c. BUYER’s or any present or future guarantor’s default under any agreement or instrument executed in connection with this NOTE; or
d. The revocation of any guaranty of this NOTE by any guarantor.
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Water Promissory Note
3 9. POST DEFAULT INTEREST: Upon default, interest on the unpaid principal balance of this NOTE is payable at the rate of ten (10) percent per annum until this NOTE is paid in full, or until the date of Water Entitlement revocation occurs as provided below.
10. PAYMENT OF NOTE COSTS AND EXPENSES BY CITY: If the CITY has required the BUYER or any other holder of this NOTE to pay immediately in full as described above, CITY shall have the right to be reimbursed by BUYER for all of its costs and expenses to the extent not prohibited by applicable law, including but not limited to, outside collection agencies and reasonable attorney’s fees.
11. REVOCATION OF WATER ENTITLEMENT UPON DEFAULT: Upon any event of default referenced above, the CITY at CITY’s option, upon ten (10) day’s calendar notice without further notice, demand, or presentment, and regardless of any prior forbearance, may revoke in full or in part the increment of Water Entitlement provided in the Water Subscription Agreement referenced above, in proportion to remaining sums (not to include interest, costs or fees) that are unpaid by the BUYER.
12. General Provisions:
a. ATTORNEYS’ FEES AND COSTS: If any action is commenced which arises out of or related to this Promissory Note, the prevailing party shall be entitled to recover from the other party such sums as the court may adjudge to be reasonable attorneys’ fees, expert fees, and expenditures in the action, in addition to costs and expenditures otherwise allowed by law. Recovery of these fees or expenses shall be as additional costs awarded to the prevailing party and shall not require initiation of a separate legal proceeding. In any matter arising out of or relating to the bankruptcy of BUYER, BUYER agrees to pay all of CITY’s costs and expenditures, including attorneys’ fees and expert fees, which may be incurred in enforcing or protecting CITY’s rights or interests. b. NON-WAIVER: No failure or delay by CITY in exercising CITY’s rights under this NOTE shall be considered a waiver of such rights.
c. NOTICE: Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by facsimile, or (d) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices shall be made to the Parties at the addresses listed below.
d. WAIVER: Any waiver of any terms and conditions of this NOTE must be in writing and signed by the CITY and the BUYER. A waiver of any of the terms and conditions shall not be construed as a waiver of any other terms or conditions in this NOTE. e. COMPLIANCE WITH APPLICABLE LAW: The Parties shall comply with all applicable federal, state, and local laws and regulations in performing this Agreement. f. GOVERNING LAW. This NOTE shall be governed by and interpreted under the laws of the State of California. Venue for any action shall be in the County of Monterey.
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Water Promissory Note
4 g. COUNTERPARTS. This NOTE may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same NOTE.
h. AUTHORITY. Any individual executing this NOTE on behalf of the CITY or the BUYER represents and warrants hereby that he or she has the requisite authority to enter into this NOTE on behalf of such Party and bind the Party to the terms and conditions of this NOTE.
i. INTEGRATION. This NOTE including the exhibits and any documents incorporated by reference, represent the entire agreement between the CITY and the BUYER with respect to the subject matter of this NOTE and shall supersede all prior negotiations, representations, or agreements, either written or oral, between CITY and BUYER as of the effective date which is the date that the CITY signs the NOTE. j. SEVERABILITY. If any of the provisions contained in the NOTE are held illegal, invalid, or unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. Limitations of liability and indemnities shall survive termination of the NOTE for any cause. If a part of this NOTE is valid, all valid parts that are severable from the invalid part remain in effect. If a part of this NOTE is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
13. EXECUTION: The BUYER executes this NOTE as a principal and not as a surety. If there is more than one BUYER, each BUYER shall be jointly and severally liable under this NOTE.
[signature page to follow]
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Water Promissory Note
5 IN WITNESS WHEREOF, CITY and BUYER have executed this Agreement as of the day and year written below.
CITY OF PACIFIC GROVE BUYER
By:
City Manager Name
Date:
By: (Signature of Chair, President, or
Vice-President) *
By:
Mayor
Date:
(Printed Name and Title)
Date:
Attachment: Water Subscription Agreement
Certificate of Good Standing
Deed of Trust
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Water Promissory Note
6 PGCC 1-19-2022
RECORDING REQUESTED BY
CITY OF PACIFIC GROVE
AND WHEN RECORDED MAIL TO
City of Pacific Grove
Attn: CDD
300 Forest Avenue
Pacific Grove, CA 93950
No fee document pursuant to
Government Code Section 27383
CITY OF PACIFIC GROVE
DEED OF TRUST
WITH ASSIGNMENT OF RENTS AS ADDITIONAL SECURITY
This DEED OF TRUST, made this ___________, 2022, between Rohnert Park RI LP, Belvnus, LLC, Travel Inn Associates, LP, and Mohammad Rezai (herein collectively called TRUSTOR), whose property is located at 157 Grand Avenue, Pacific Grove, California 93950, Old Republic Title Company, a California corporation (herein called TRUSTEE), and the City of Pacific Grove (herein called
BENEFICIARY),
TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO TRUSTEE IN TRUST, WITH POWER OF SALE, AND RIGHT OF ENTRY AND POSSESSION that Property in the City of Pacific Grove, County of Monterey, State of California, described as:
See legal description attached as EXHIBIT “A” and incorporated herein by reference, together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon BENEFICIARY to collect and apply such rents, issues and profits.
For the Purpose of Securing (1) payment of the sum One Million, Five Hundred Fifteen Thousand Five Hundred Dollars ($ 1,515,500) with interest thereon according to the terms of a Promissory Note herewith made by TRUSTOR, payable to order of BENEFICIARY, and extensions or renewals thereof; (2) the performance of each agreement of TRUSTOR incorporated by reference or contained herein or reciting it is so secured; (3) payment of additional sums and interest thereon which may hereafter be loaned to TRUSTOR, or its successors or assigns, when evidenced by a promissory note reciting that it is secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the Property above described, TRUSTOR expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the Agreements, Terms and Provisions set forth in the attached EXHIBIT “B,” incorporated herein by reference.
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It is mutually agreed that all of the Agreements, Terms and Provisions set forth in EXHIBIT “B” shall inure to and bind the parties hereto, with respect to the Property above described.
The undersigned TRUSTOR requests that a copy of any notice of default and any notice of sale hereunder be mailed to them at their address hereinbefore set forth.
Date: ______________
By: ______________________________________________
ACKNOWLEDGEMENTS
State of California
County of ___________________________
On ______________________________ before me, ______________________________, a Notary Public personally appeared _________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct
WITNESS my hand and official seal.
Signature_________________________________________ (seal) 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.
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EXHIBIT “A”
LEGAL DESCRIPTION
APN: 006-174-003,
006-174-011,
006-174-012
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EXHIBIT “B”
AGREEMENTS, TERMS, AND PROVISIONS
The following is incorporated by reference in the foregoing Deed of Trust as being a part thereof as if set forth at length therein.
A. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
(1) To keep said property in good condition and repair; not to remove or demolish any building thereon without prior written City approval; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer, or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general. (2) To provide TRUSTEE 90-days’ advance written notice of any change in ownership, management, or control of said property; to provide 90-days advance written notice of any change or revocation to the “Tenant In Common Agreement” Effective March 12th, 2020 regarding said property. (3) To provide, maintain and deliver to BENEFICIARY fire insurance satisfactory to and with loss payable to BENEFICIARY. The amount collected under any fire or other insurance policy may be applied by BENEFICIARY upon any indebtedness secured hereby and in such order as BENEFICIARY may determine, or at option of BENEFICIARY the entire amount so collected or any part thereof may be released to TRUSTOR. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (4) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of BENEFICIARY or TRUSTEE; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any action or proceeding in which BENEFICIARY or TRUSTEES may appear, and in any suit brought by BENEFICIARY to foreclose this Deed of Trust.
(5) To pay: at least ten days before delinquency all taxes and assessments affecting said property, including assessments; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this Trust.
Should TRUSTOR fail to make any payment or to do any act as herein provided, then BENEFICIARY or TRUSTEE, but without obligation so to do and without notice to or demand upon TRUSTOR and without releasing TRUSTOR from any obligation hereof, may, make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, BENEFICIARY or TRUSTEE being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of BENEFICIARY or TRUSTEE; pay, purchase, contest or compromise any encumbrance, charge, or lien PGCC 1-19-2022
which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his or her reasonable fees. (6) To pay immediately and without demand all sums so expended by BENEFICIARY or TRUSTEE, with interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby, any amount demanded by the BENEFICIARY not to exceed the maximum allowed by law at the time when said statement is demanded.
B. IT IS MUTUALLY AGREED:
(1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to BENEFICIARY who may apply or release such moneys received by it in the same manner and with the same effect as above provided for regarding disposition of proceeds of fire or other insurance. (2) That by accepting payment of any sum secured hereby after its due date, BENEFICIARY does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
(3) That at any time or from time to time, without liability therefor and without notice, upon written request of BENEFICIARY and presentation of this Deed of Trust and said Promissory Note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, TRUSTEE may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or charge hereof.
(4) That upon written request of BENEFICIARY stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust and said Promissory Note to TRUSTEE for cancellation and retention or other disposition as TRUSTEE in its sole discretion may choose and upon payment of its fees, TRUSTEE shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.
The Grantee in such reconveyance may be described as “the person or persons legally entitled thereto.” (5) That as additional security, TRUSTOR hereby gives to and confers upon BENEFICIARY the right, power and authority, during the continuance of this Trust, to collect the rents, issues and profits of said property, reserving unto TRUSTOR the right, prior to any default by TRUSTOR in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, BENEFICIARY may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in its own name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as BENEFICIARY may determine. The entering upon and taking possession of said property, the collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
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(6) That upon default by TRUSTOR in payment of any indebtedness secured hereby or in performance of any agreement hereunder, BENEFICIARY may declare all sums secured hereby immediately due and payable by delivery to TRUSTEE of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said property, which notice TRUSTEE shall cause to be filed for record. BENEFICIARY also shall deposit with TRUSTEE this Deed of Trust, said Promissory Note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, TRUSTEE, without demand on TRUSTOR, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. TRUSTEE may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. TRUSTEE shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including TRUSTOR, TRUSTEE, or BENEFICIARY as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of TRUSTEE and of this Trust, including cost of evidence of title in connection with sale, TRUSTEE shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
(7) BENEFICIARY, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any TRUSTEE named herein or acting hereunder, which instrument, executed by the BENEFICIARY and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the TRUSTEE predecessor, succeed to all its title, estate, rights, powers and duties.
Said instrument must contain the name of the original TRUSTOR, TRUSTEE and BENEFICIARY hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee. (8) That this Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term BENEFICIARY shall mean the owner and holder, including pledgees of the Promissory Note secured hereby, whether or not named as BENEFICIARY herein. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or the neuter, and the singular number includes the plural.
(9) The TRUSTEE accepts this Trust when this Deed of Trust, duty executed and acknowledged, is made a public record as provided by law. TRUSTEE shall notify any party hereto of pending sale under any other Deed of Trust.
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City of Pacific Grove
Water Subscription Agreement
Aasdfd
CITY OF PACIFIC GROVE
300 FOREST AVENUE
PACIFIC GROVE, CALIFORNIA 93950
WATER SUBSCRIPTION AGREEMENT
The undersigned (“Subscriber”) understands the CITY OF PACIFIC GROVE, a Charter City of the State of California (“City”), has offered increments of water for sale (the “Available Water Entitlement”) that derive from the Water Entitlement granted to the City by the Monterey Peninsula Water Management District (“MPWMD”) in accord with MPWMD Rule 23.9, “City of Pacific Grove Water Entitlement,” attached as Exhibit 1 hereto. Rule 23.9 was adopted by the MPWMD Board of Directors on February 23, 2016. The Available Water Entitlement is evidenced by Water Use Permits and will, to the extent transferred, have the rights, privileges, and preferences as set forth in the Rule.
Sale, distribution and use of the Available Water Entitlement shall conform to the interpretation of the State Water Resources Control Board (“SWRCB”) set forth in the April 19, 2019 joint letter of Erik Ekdahl, Deputy Director, Division of Water Rights, SWRCB, and Leslie S. Laudon, Deputy Director, Division of Financial Assistance, SWRCB (“April 19, 2019 Letter”), a copy of which is attached as Exhibit 2 hereto.
Sale, distribution and use of available water shall also conform to the Pacific Grove Water Distribution Regulations set forth in Pacific Grove Municipal Code (PGMC) Chapter 11.68, a copy of which is attached as Exhibit 3 hereto.
The Subscriber understands the offering is made only to holders of record of fee title to property located in the City of Pacific Grove.
1. Subscription.
Subject to terms, conditions and limits of this Water Subscription Agreement (“Agreement”), Subscriber commits to acquire and subscribes to the quantity (“Entitlement Increment”) of Available Water Entitlement shown on Appendix A to this Agreement and pay the price of $ 250,000 per acre foot for the Entitlement Increment. (This price may be temporarily adjusted by an applicable discount if authorized by the City Council.) The Entitlement Increment shall be dedicated to the specific real property described in Appendix B to this Agreement (“Property”).
The purchase price is payable as described in Section 4 of this Agreement. The City has set the minimum subscription shall be one-hundredth (.01) of an acre foot and in minimum increments of one-hundredth (one acre foot is equal to 100 fixture units under the MPWMD’s methodology).
Subscriber acknowledges the City has the right, in its sole discretion, to reduce or even reject in its entirety the amount of Available Water Entitlement to be sold pursuant to this Agreement.
2. Acceptance of Subscription.
This Agreement shall be accepted by the City only when it is signed by an authorized officer of the City and delivered to the Subscriber. Notwithstanding anything in this Agreement to the contrary, PGCC 1-19-2022
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the City shall have no obligation to transfer any Available Water Entitlement to property owner’s property if transfer of the Available Water Entitlement to the Property would violate Rule 23.9, violate terms of the April 19, 2019 Letter, violate PGMC Chapter 11.68 or violate other applicable laws (collectively, “Laws”).
3. Closing Date, Time and Place.
The closing of the transfer of the Entitlement Increment from the City to the Subscriber to be dedicated to the Property, and the payment by the Subscriber for the Entitlement Increment (the “Closing”), shall take place at the Monterey office of Chicago Title Company to be specified by the City in a written notice to the Subscriber (the “Escrow Holder”). Subject to the satisfaction or waiver of the conditions precedent set forth in this Agreement, the Closing shall take place on a date and time designated by the City.
4. Payment; The Closing.
(a) At least five (5) days prior to the Closing, the Subscriber shall deposit with Escrow Holder, by cashier’s check or wire transfer into the escrow account, the full amount of the purchase price set forth in Appendix A to this Agreement. Provided all conditions precedent have been satisfied, then on or before the business day prior to the Closing, the City shall deposit with Escrow Holder documents transferring the Entitlement Increment to the Subscriber to be dedicated to the Property (the “Conveyance Documents”), which documents shall be duly executed by authorized signatories on behalf of the City and, when necessary for recordation, properly acknowledged. The Subscriber and the City shall each deposit such other instruments as are reasonably required to consummate the transfer of the Entitlement Increment in accordance with the terms of this Agreement and applicable Laws.
(b) When all required documents and funds have been deposited with Escrow Holder, and all conditions precedent have been satisfied, Escrow Holder shall immediately close Escrow by:
(i) recording the Conveyance Documents with the Monterey County Recorder’s Office, together with instructions for the County Recorder to deliver the Conveyance Documents to the Subscriber after recording, and
(ii) paying the amount set forth in Appendix A to this Agreement, reduced by the closing costs payable by the City pursuant to Section 8 of this Agreement, to an account designated by the City in accordance with applicable Laws. The Subscriber shall execute such additional escrow instructions as may be reasonably requested by Escrow Holder, but in the event of any inconsistency between the terms of such escrow instructions and the terms of this Agreement, the terms of this Agreement shall prevail.
5. Additional Provisions/ Exhibits.
These Exhibits and Appendices are incorporated by this reference as an integral part of this Agreement:
Exhibit 1: MPWMD Rule 23.9, “City of Pacific Grove Water Entitlement” Exhibit 2: April 19, 2019 Letter
Exhibit 3: PGMC Chapter 11.68, “Water Distribution Regulations” Appendix A: Purchase Price
Appendix B: Legal Description of Real Property
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Appendix C: Tenant In Common Agreement Effective March 12th, 2020
6. Representations and Warranties of the City.
As of the Closing, the City represents and warrants that:
(a) The City is duly formed and validly exists under the laws of the State of California, with full power and authority to conduct business as it is currently being conducted and to own its assets. (b) The City has duly authorized transfer of the Entitlement Increment pursuant to this Agreement. (c) Except as otherwise expressly provided in this Agreement, the City disclaims any representations or warranties, express or implied, regarding the Entitlement Increment or matters affecting the Entitlement Increment.
(d) The City will take no position contrary to continued existence of the Entitlement Increment or Available Water Entitlement, or that would jeopardize availability of water sufficient to satisfy the Entitlement Increment.
7. Representations, Warranties, and Covenants of the Subscriber.
Subscriber represents, warrants and covenants with the City and each officer, director, and agent of the City that:
(a) General:
(i) Subscriber has all requisite authority to enter into this Agreement and to perform all the obligations required to be performed hereunder.
(ii) Subscriber is the holder (of record) of fee title to the Property and is not acquiring the Entitlement Increment as an agent or otherwise for any other person. (iii) The Property is located in the City of Pacific Grove. (b) Information Concerning the Entitlement Increment and related State Water Resources Control Board and other legal proceedings:
(i) Subscriber has reviewed, or has had the opportunity to review, (A) MPWMD Rule 23.9, “City of Pacific Grove Water Entitlement” (Exhibit 1); (B) “April 19, 2019 Letter” (Exhibit 2), (C) SWRCB Cease and Desist Order WR 2009-0060, dated October 20, 2009, as amended by Order WR 2010-0001, dated January 5, 2010, against California American Water Company (“Cal-Am”) (Order WR 2009-0060 and Order WR 2010-0001 are collectively referred to herein as the “Order” and are found at the State Water Resources Control Board website:
http://www.waterboards.ca.gov/waterrights/water_issues/programs/hearings/caw_cdo/); and (D) litigation in the Superior Court of California by various parties (including Cal-Am and MPWMD) challenging the validity of the Order, including MPWMD and Cal-Am v.
SWRCB, Santa Clara County Case No. 1-10-CV163328 (collectively, the “Lawsuits”).
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(ii) In entering into this Agreement and completing the purchase and transfer of the Entitlement Increment contemplated herein, Subscriber has not relied on any information from the City other than that expressly contained in this Agreement (including the appendices and exhibits). Neither the City nor anyone acting or claiming to act on behalf of City has made any representation or warranty concerning the Order or the Lawsuits, or their impact or potential impact on Subscriber’s ownership or use of the Entitlement Increment as contemplated in, and in accordance with, Rule 23.9, nor have they given legal advice to Subscriber. Subscriber is exclusively relying on the advice of its own legal counsel regarding the legal merits and consequences of this Agreement and the transfer, ownership, and use of the Entitlement Increment, including the impact or potential impact of the Order and/or the Lawsuits on the Entitlement Increment.
(iii) Subscriber waives any right, claim, or cause of action, known or otherwise, against the City arising from the Order, any amendment or modification of the Order, and/or the Lawsuits.
(iv) Subscriber shall take title to the Entitlement Increment subject to the Order, any amendment or modification to the Order, the April 19, 2019 Letter, the Lawsuits, and/or any effects of any of them, whether known or unknown, disclosed or undisclosed, including, without limitation, the potential that Subscriber may be prohibited from using the Entitlement Increment as contemplated in, and in accordance with Rule 23.9. (v) Subscriber hereby releases City and each Exculpated Party (as defined below) from any liability of any kind or nature arising with respect to the Order, any amendment or modification to the Order, the April 19, 2019 Letter, and/or the Lawsuits, and, specifically, agrees that, if any claim or action is brought against Subscriber arising out of the Order, any amendment or modification to the Order, and/or the Lawsuits, Subscriber shall have no claim of any kind or nature against City or any Exculpated Party. (vi) Subscriber hereby agrees that (A) City shall have no further liability or obligation in respect to matters of any kind or nature pertaining to the Entitlement Increment, the Order, any amendment or modification to the Order, the April 19, 2019 Letter, and/or Lawsuits, as they relate to the Property, and (B) Subscriber shall fully assume any such liability or obligation as it relates to the Entitlement Increment, the Order, any amendment or modification to the Order, the April 19, 2019 Letter, and/or the Lawsuits, as they relate to the Property.
(vii) Notwithstanding anything to the contrary contained in this Agreement, no officer, employee, manager, partner, or agent of the City (collectively, the “Exculpated Parties”), whether disclosed or undisclosed, shall have any personal obligation or liability hereunder, and Subscriber shall not seek to assert any claim or enforce any of its rights under this Agreement against any Exculpated Party.
(viii) Notwithstanding anything to the contrary in this Agreement, any liability or other obligation of the City contained in this Agreement that, despite the terms of this Agreement to the contrary, survives the closing, or any liability or other obligation of the City under any other document or instrument delivered by the City in connection with the Closing, shall not PGCC 1-19-2022
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exceed a total aggregate amount equal to the purchase price set forth in Appendix A to this Agreement.
(ix) Prior to executing this Agreement, Subscriber has been given the opportunity to obtain information necessary to evaluate the information set forth in Rule 23.9, the Order, the April 19, 2019 Letter, and/or the Lawsuits, and has obtained from its own legal or other professional advisors all such information so requested. (c) Financial and Other Matters:
(i) Subscriber acknowledges it has not received from the City, or anyone acting or claiming to act on the City’s behalf, any accounting, tax, financial, architectural, permitting, legal or other advice with respect to this Agreement and the transfer, ownership, or use of the Entitlement Increment. To the extent necessary, Subscriber has retained, at its sole expense, and relied solely upon, the advice of its own accounting, tax, financial, architectural, permitting, legal, and other professional advisors regarding the merits and consequences of this Agreement and the transfer, ownership, and use of the Entitlement Increment. (ii) Subscriber agrees to furnish additional information requested by any governmental agency to assure compliance with Rule 23.9, the April 19, 2019 Letter, and other Laws in connection with the transfer of the Entitlement Increment. (d) Restrictions on Further Transfer: Subscriber may transfer the Entitlement Increment only to successors-in-interest to the Property; Subscriber acknowledges and agrees the Entitlement Increment cannot be transferred independently to any other person or property. (e) Reaffirmation and Confirmation of Subscriber ’s Representations, Warranties, and Covenants at Closing: Subscriber understands that, unless it notifies the City in writing to the contrary at or before the Closing, each of the representations, warranties, and covenants contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.
8. Conditions to Obligations of Subscriber and the City. (a) Obligations of the Subscriber to obtain and pay for the Entitlement Increment specified herein, and of City to transfer the Entitlement Increment, are subject to the following conditions precedent.
If all conditions precedent set forth in this Section have not been satisfied or waived within the times provided below, the party for whose benefit the unsatisfied condition exists may unilaterally cancel this Agreement at any time thereafter, prior to such satisfaction or waiver, by written notice to Escrow Holder and the other party. If the party for whose benefit the unsatisfied condition exists cancels this Agreement as provided above, the Escrow Holder shall return to each party all funds and other items, if any, deposited by that party with the Escrow Holder. (i) As of the Closing, except for the Order and the Lawsuits, no administrative, legislative, or judicial action or proceeding shall be pending wherein an unfavorable judgment, order, decree, or ruling would (A) prevent consummation of the transaction contemplated by this Agreement, or (B) prohibit or otherwise affect adversely the right of Subscriber to own and use the Entitlement Increment as contemplated in, and in accordance with, Rule 23.9 (and no such judgment, order, decree, or ruling shall be in effect). This condition is for the benefit PGCC 1-19-2022
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of both parties. The Subscriber is purchasing a portion of the Available Water Entitlement expressly subject to the Order and the Lawsuits.
(ii) The representations and warranties of the City contained in this Agreement and the representations and warranties of the Subscriber contained in this Agreement shall be true and correct on and as of the Closing in all respects with the same effect as though such representations and warranties had been made on and as of the Closing. This condition is for the benefit of each of the parties as to the representations and warranties of the other party. (b) Subscriber shall make full use of purchased entitlement water (quantified by Water Use Capacity set by MPWMD) no later than the first date of occupancy for any improvement constructed based upon any part of the entitlement water purchase.
9. Costs.
Subscriber shall be solely responsible for the payment of all escrow fees and recording costs related to the Closing. Subscriber shall be solely responsible for the payment of all fees, costs and expenses of any nature whatsoever accruing or arising following the Closing Date in connection with the transfer, ownership, or use of the Entitlement Increment, including, without limitation, any capacity or other fees payable to the MPWMD, or any fees payable to California American Water Company.
Except as otherwise specifically set forth elsewhere in this Agreement, each party shall pay its own attorney’s fees and any other fees, costs, or expenses incurred by it regarding this Agreement and the Entitlement Increment transfer contemplated hereby.
10. Notices.
Notices required under this Agreement shall be delivered personally or by first-class, postage pre-paid mail to the City and Subscriber at the addresses listed below:
FOR CITY: FOR SUBSCRIBER:
Bill Peake JAY DESAI
Rohnert Park RI LP
Mayor Owner
300 Forest Avenue
Pacific Grove, CA 93950
P.O Box 2106,
Monterey CA 93942.
Address Address
(831) 648-3127 (510) 914-7679
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11. Miscellaneous Provisions.
(a) Brokers. Subscriber has not entered into any agreement to pay any broker’s or finder’s fee to any person with respect to this Agreement or the transactions contemplated hereby. (b) Amendment. This Agreement may be amended or modified only by an instrument in writing signed by the City and the Subscriber.
(c) Waiver. Any waiver of terms or conditions of this Agreement must be in writing and signed by the City and the Subscriber. A waiver of any of the terms and conditions of this Agreement shall not be construed as a waiver of any other terms or conditions in this Agreement. (d) Assignability. Neither this Agreement nor any right, remedy, obligation, or liability arising hereunder or by reason hereof shall be assignable by the Subscriber without the prior written consent of the City; provided that the Subscriber may assign this Agreement without the prior written consent of the City to any successor-in-interest to the Subscriber’s fee interest in the Property.
(e) Applicable Law. This Agreement shall be governed by and interpreted under the laws of the State of California. Venue for any challenge shall be in Monterey County. (f) Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. (g) Counterparts. This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement.
(h) Construction of Agreement. The City and Subscriber agree each party has fully participated in the review and revision of this Agreement and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendment to this Agreement.
(i) Binding Effect. This Agreement shall bind upon and accrue to the benefit of the parties and their respective heirs, legal representatives, successors, and assigns. (j) Survival. All representations, warranties, and covenants by the Subscriber contained in this Agreement shall survive (i) the acceptance of this Agreement by the City, (ii) the Closing (and shall not merge with the provisions of any closing documents), and (iii) the death or disability of the Subscriber. If the Subscriber is more than one person, the obligations of the Subscriber shall be joint and several and the representations, warranties, and covenants shall be deemed to be made by and be binding on each of the Subscriber, and their respective heirs, executors, administrators, successors, and assigns.
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(k) Notification of Changes. The Subscriber covenants and agrees to notify City upon the occurrence of any event prior to the Closing of the transfer of the Entitlement Increment pursuant to this Agreement that would cause any representation, warranty, or covenant of the Subscriber contained in this Agreement to be false or incorrect.
(l) Integration. This Agreement and the attached appendices and exhibits constitute the entire agreement between the Subscriber and the City. There are no oral agreements or representations that are not expressly set forth in this Agreement.
(m) Severability. If any term, provision, or condition contained in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision, or condition to persons or circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and each and every other term, provision, and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, City and SUBSCRIBER have executed this Agreement as of the day and year written below.
SUBSCRIBER:
Managing Partner:
_____________________________________________
JAY DESAI
Rohnert Park RI LP
P.O Box 2106 Monterey CA 93942.
_________________________________________________________________________________ Mailing Address City State Zip
Email address: [email protected] Phone Number: 510 914-7679 Date: __________________________________
Accepted by CITY OF PACIFIC GROVE:
Date: ___________________ By: _____________________________________________ Bill Peake, Mayor
City Agreement Number: 41
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23.9-1
Monterey Peninsula Water Management District Monterey Peninsula Water Management District A. CITY OF PACIFIC GROVE WATER ENTITLEMENT
1. The City of Pacifi c Grove Water Entitlement confers on the City of Pacifi c Grove, a vested property right to release up to 66 AFA of water for consumption from the California American Water Company Water Distribution System.
2. 13 AFA of metered water demand previously used by the City of Pacifi c Grove to irrigate its Golf Links and El Carmelo Cemetery shall be permanently suspended from use in order to provide lasting benefi ts to the Carmel River system.
3. Benefi ted Properties of the City of Pacifi c Grove Water Entitlement shall mean all properties that are located within the City of Pacifi c Grove.
4. City of Pacifi c Grove is authorized to separately sell, transfer and convey to owners of Benefi ted Properties for such consideration and upon such terms and conditions as City of Pacifi c Grove in its discretion may determine, such portions of the City of Pacifi c Grove Water Entitlement as it may choose. Any portion of the City of Pacifi c Grove Water Entitlement conveyed to the owner of a Benefi ted Property by an Assignment Document shall vest in the owner of the Benefi ted Property, and become appurtenant to title to the particular Benefi ted Property, at the time the Water Use Permit is issued as evidence of such conveyance.
5. The City of Pacifi c Grove Water Entitlement shall be separate and distinct from any other Allocations provided in Rule 30.
6. For purposes of collecting Capacity Fees and tracking the use of a Water Entitlement, the projected increase in Water Use Capacity of a Benefi ted Property shall be calculated in the manner set forth in Rule 24, as it may be amended from time to time.
7. Each Water Use Permit issued pursuant to this Rule shall represent a vested property interest upon issuance and shall not be subject to Revocation or cancellation except as expressly set forth in subparagraph B below.
8. The portion of the City of Pacifi c Grove Water Entitlement granted by each Water Use Permit shall not be subject to reallocation pursuant to MPWMD Rule
30. B. REVOCATION, TERMINATION, OR MODIFICATION OF WATER USE
PERMITS
1. Each Water Use Permit which, on or after January 1, 2075, embodies an annual Water Entitlement in excess of requirements for planned land uses on the Benefi ted Property, or which purports to authorize usage in excess of the constitutional limitation (California Constitution, article 10, section 2) to EXHIBIT 1
RULE 23.9 - CITY OF PACIFIC GROVE WATER ENTITLEMENT
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Monterey Peninsula Water Management District Monterey Peninsula Water Management District reasonable and benefi cial use, shall be subject to modifi cation, Revocation, or termination in the sole discretion of MPWMD, such that the water usage authorized thereby shall not exceed such requirements and limitations.
2. Prior to any modifi cation, termination or Revocation pursuant to this subparagraph E, the holder of the Water Use Permit shall be entitled to notice and a hearing, and any termination, Revocation, or modifi cation shall be subject to appeal to the Board pursuant to Rule 70 of the MPWMD Rules and Regulations.
Added by Ordinance No. 168 (1/27/2016)
EXHIBIT 1
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Chapter 11.68
WATER DISTRIBUTION REGULATIONS
Sections:
11.68.005 Definitions.
11.68.010 Distribution of potable water.
11.68.015 Priority dates for wait-listed applications.
11.68.020 Unavailability of water – Readiness for building permit applications.
11.68.030 Time limits for wait-listed projects.
11.68.040 Entitlement water.
11.68.050 Repealed.
11.68.060 Repealed.
11.68.005 Definitions.
(a) This section provides definitions for terms or phrases used in this chapter that are technical or specialized, or that may not reflect common usage. If any of the definitions in this chapter conflict with definitions in other provisions of the Pacific Grove Municipal Code, the definitions set forth in this section shall control for the purposes of this chapter. If a word is not defined in this chapter, or in other provisions of this title, the most common dictionary definition shall be presumed to be correct.
(b) The following are defined terms for use in this chapter:
“Allocation” means a discrete quantity of water held by the city from the Monterey Peninsula Water Management District for new or intensified water use within the city. “City water distribution regulations” means this chapter. “Entitlement” (also “water entitlement”) means a discrete quantity of potable water developed through use of city funds, available for sale to end users to enable new or intensified use of water from the California American Water Distribution System.
Entitlements are evidenced by a vested contractual right granted by the city. “Intensified water use” means any change in water use on a parcel which, in a residential use, is evidenced by an increase in the number of fixture units serving that parcel; or, in any nonresidential use, evidenced by the incremental change in the project’s capacity for annual water use based upon factors set by the Monterey Peninsula Water Management District.
“Mixed use” means where one or more water meters or connections supply both residential and nonresidential water uses, often within the same building.
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“Notice of available water” means a notice provided by the city manager, or agent, to advise an applicant that water from a water entitlement or water allocation is ready for immediate use for a project, which may trigger time limits for wait-listed properties within which applicants must claim and purchase water or be removed from the water wait list. “Pacific Grove local water project (PGLWP)” means a reclamation plant intercepting and treating sewer water to deliver nonpotable water to the Pacific Grove Golf Links and El Carmelo Cemetery, and providing water for other public uses. “Water credits” means a record created by the Monterey Peninsula Water Management District that allows reuse of a specific quantity of water upon a specific location, based upon documented permanent abandonment of prior water use on that site. “Water subscription” means a document through which a property owner acquires a contract interest for a discrete quantity of water from the legal owner of a water entitlement.
“Water use capacity” means the maximum potential water use which theoretically may occur, based on average water use data for similar structures and uses in the Monterey Peninsula region, as shown by projected water use tables developed by the Monterey Peninsula Water Management District. Anticipated maximum annual water demand is expressed in acre-feet for a specific real property.
“Water wait list” means a chronological list that quantifies unmet potable water requests for unserved end use water users. Prerequisite qualifying criteria must have been met before a project was placed on the water wait list. [Ord. 19-006 § 2, 2019; Ord. 18-015 § 3, 2018].
11.68.010 Distribution of potable water.
(a) All water available for distribution and use within the city shall be distributed by resolution passed and adopted by the council.
(b) Water shall be distributed based solely on the date/time of each request, provided the request is accompanied by payment of all city fees or other city charges for water, and further provided the requestor can demonstrate an ability to make timely use of the water. [Ord. 19- 006 § 2, 2019; Ord. 18-015 § 3, 2018].
11.68.015 Priority dates for wait-listed applications.
Project applications placed on any water wait list will be eligible for water on priority date basis provided the project is then able to use the water; if not, the available water will be passed to the next buildable project and the delayed project shall remain on the water wait list; the PGCC 1-19-2022
project shall retain its original priority date water wait list until it acquires water available for use. [Ord. 19-006 § 2, 2019; Ord. 18-015 § 3, 2018].
11.68.020 Unavailability of water – Readiness for building permit applications.
(a) Applications for projects for which there is no available water shall not be accepted or processed. However, there shall be established a prioritized waiting list according to order of receipt of proof of readiness to apply for a building permit. (b) For projects requiring only a building permit, proof of readiness to apply for a building permit shall include submittal of all materials normally required to be filed with building permit applications.
(c) For projects requiring discretionary land use entitlements (including, without limitation, variances, use permits, historical preservation permits, architectural approvals), proof of readiness to apply for a building permit shall include the final discretionary approval and submittal of all materials or plans normally required to be filed with a discretionary permit application. Final discretionary approval shall occur upon the granting of all required project approvals by the boards and commissions having jurisdiction to first hear the project applications. In the event of a successful appeal, i.e., denial of the project application, from such approval, the project shall be removed from the water wait list. (d) A request for inclusion on a prioritized waiting list shall include a written acknowledgment that there is, at the time of such request, no water available for the requested project. Fees may apply to remain current on this waiting list.
(e) Proofs of readiness shall be placed on prioritized waiting lists according to order received.
Once water is available to service a project covered by proofs of readiness, those affected shall be notified and may apply for building permits. Once a building permit is determined to be complete and ready for issuance, the applicant shall be granted authorization to seek a water permit. [Ord. 19-006 § 2, 2019; Ord. 18-015 § 3, 2018].
11.68.030 Time limits for wait-listed projects.
(a) When water is available for project use, or by purchase via entitlement, time limits set forth below shall apply to wait-listed properties within which those that can take immediate advantage of the water must claim and purchase water, or be bypassed on the water wait list.
Projects prevented by regulation or operation of law from immediate use of water shall remain on the water wait list and retain their priority date.
(b) The city will send a notice of available water to applicants on the water wait list. Applicants shall have 30 calendar days from the date of the notice to notify the city, in writing, of their intent to use available water or to remain on the water wait list (“passing”). Wait-listed PGCC 1-19-2022
properties shall be required to reapply for permit amendments or renewal, if needed, within 30 days of the date notice of available water by the property is sent. In the alternative, applicants shall be required to state their intent to “pass” on purchasing entitlement water during this same time period. Building permits shall be obtained 120 days thereafter. Full payment shall be tendered for any water entitlement within 180 days of the date water is available for use by the property. Extensions to these time limits may be granted for good cause by the city manager, or designee, in accord with this chapter.
(c) Full use of water, including purchased entitlement water or water from an allocation (quantified by water use capacity), shall be required by the first date of occupancy. Any unused entitlement shall be subject to revocation to enable reassignment or sale for other uses. The city may consider rebate of the pro rata purchase price of any unused water entitlement to the then-current property owner (less a reasonable processing fee) upon revocation of an increment of unused water entitlement, but payment of the rebate amount shall not be made by the city until sale of that water increment has been completed and paid in full by another water user. [Ord. 19-006 § 2, 2019; Ord. 18-015 § 3, 2018].
11.68.040 Entitlement water.
(a) Sale of PGLWP entitlement water shall be set at the rate determined by council resolution.
Fees paid to the city by the applicant to remain on a water wait list shall be applied as a credit toward the purchase of the water entitlement; no refund shall be granted. (b) If warranted by circumstances related to the sale of 2.0 acre-feet of water or more for a specific project, the city in its sole discretion may elect to enter into a promissory agreement with the property owner(s) to effect sale of entitlement water. The maximum amount payable pursuant to the promissory agreement shall not exceed 90 percent of the water entitlement purchase price; the purchaser shall pay to the city as a deposit the remaining purchase cost as a condition precedent to execution of the promissory agreement. (1) Any water entitlement that is subject to a promissory agreement shall be subject to revocation, shall not vest and shall not run with the land until the promissory obligation has been paid in full to the city.
(2) If consideration required pursuant to a promissory agreement is not paid to the city in full when due, including but not limited to principal, interest, costs and fees, the owner(s) shall be in default of the promissory agreement. Unconditional transfer of an entitlement shall occur only following receipt of full payment by the city. (3) If full and complete payment is not timely received by the city, the city shall retain authority to revoke the water entitlement, in part or in full.
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(4) Transfer or assignment of any promissory agreement or any interest in a water entitlement subject to a promissory agreement shall not be made without the advance written consent of the city.
(5) The city shall also withhold all final occupancy permits for any project for which a promissory agreement is in default, until such time as the default has been cured by full payment of all amounts owed.
(c) City council approval shall be required for the city to enter into any promissory note related to payment for entitlement water.
(d) After purchase of entitlement water, the city may rebate the pro rata purchase price to the then-current property owner (less a reasonable processing fee) upon city revocation of any increment of unused water entitlement, but payment of the rebate amount shall not be made by the city until sale of that water increment has been completed and paid in full to the city by another water user. [Ord. 21-023 § 2, 2021; Ord. 19-006 § 2, 2019; Ord. 18-015 § 3, 2018].
11.68.050 Building permit time limit.
Repealed by Ord. 19-006. [Ord. 18-015 § 3, 2018].
11.68.060 Additional water supplies.
PGCC 1-19-2022
APPENDIX A
WATER ENTITLEMENT INCREMENT ASSIGNED
Location (Property Address): 157 Grand Avenue, Pacific Grove CA 93950 Subscriber Name(s): JAY DESAI
1. Quantity of Water Entitlement requested: 8.66 (fraction of per acre foot)
2. Original Cost $2,165,000 ($250,000 per acre foot)
3. Discount $ 649,500 (30% discount until June 30, 2022)
4. Total Amount Due $1,515,500
I execute this document in the City of Pacific Grove, and declare under penalty of perjury that the information provided is true and correct of my knowledge.
____________________________________________ _________________________________ JAY DESAI Date
PGCC 1-19-2022
1 APPENDIX B
LEGAL DESCRIPTION:
The land referred to is situated in the County of Monterey, City of Pacific Grove, State of California, and is described as follows:
PARCEL I:
Lots numbered 10 and 12 in block numbered 41 as said lots and block are shown on that certain map entitled, "Map of Pacific Grove Retreat, Monterey County, Cal., St. John Cox, Surveyor, July 1875", Filed for record August 8, 1876 in the office of the County Recorder of the County of Monterey, State of California, in volume 1, of Maps, "Cities and Towns", at page 49.
PARCEL II:
Lot nine (9) in block numbered forty-one (41) in Pacific Grove Retreat grounds as surveyed by St. John Cox, Esq., Surveyor, July, AD. 1875, and duly recorded in volume 1, "Cities and Towns", at page 49, in the office of the County Recorder of said County of Monterey.
PARCEL Ill:
Lot eleven (11) in block numbered forty-one (41) In Pacific Grove Retreat grounds as surveyed by St. John Cox, Esq., Surveyor, July, AD. 1875, and duly recorded in volume 1, "Cities and Towns", at page 49, in the office of the County Recorder of said County of Monterey.
APN: 006-174-003 (PARCEL I) and 006-174-011 (PARCEL II) and 006-174-012 (PARCEL Ill)
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Agenda No. 13 C
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Tori Hannah, Administrative Services Director/Assistant City Manager MEETING DATE: January 19, 2022
SUBJECT: Annual Comprehensive Financial Report (ACFR) for the Fiscal Year Ending June 30, 2021
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
Receive the Annual Comprehensive Annual Financial Report, which includes the Auditor's Opinion on the City's financial statements, from the City's independent auditor, Chavan & Associates, LLP
Receive the Transportation Safety and Investment Plan Account Fund (TAMC Measure X) Report, which includes the Auditor's Report by the City's independent auditor, Chavan & Associates, LLP
Receive a status on improvements based on the auditor's recommendations that are being implemented, and provide any desired direction.
DISCUSSION
The City contracted with Chavan & Associates, LLP, a firm of licensed certified public accountants, to audit the City of Pacific Grove’s financial statements for the fiscal year ending June 30, 2021. The goal of the independent audit is to provide reasonable assurance that the basic financial statements are free from material misstatement. The Independent Auditor's Report which is included on page 20 of the Annual Comprehensive Financial Report (ACFR), indicates that the financial statements are presented fairly, in all material respects, the financial position of the City. This “unmodified” opinion is the optimal opinion to receive from an external auditor. Fiscal Year 20/21, represents the twelfth consecutive year the City has earned this opinion.
In Fiscal Year 20/21, the name of the City's financial report was changed from Comprehensive Annual Financial Report (CAFR) to the (ACFR) to reflect Governmental Accounting Standards Board (GASB) Statement No. 98. This Statement is in response to an increasing awareness that the report's former acronym, when pronounced aloud, sounds the same as a derogatory term that was historically used in South Africa. The Fiscal Year 20/21 ACFR can be accessed through this link.
The Government Finance Officers Association (GFOA) of the United States and Canada (GFOA) awarded a Certificate of Achievement for Excellence in Financial Reporting for the City’s ACFR for PGCC 1-19-2022
the fiscal year ended June 30, 2020. This represents the fourth year that the City has received this prestigious award. A Certificate of Achievement is valid for a period of one year only. Staff believes that the Fiscal Year 20/21 ACFR continues to meet the program requirements and the City will be submitting the attached ACFR to GFOA for consideration of another certificate.
The auditors deemed that it was unnecessary to perform a Single Audit in Fiscal Year 20/21. A Single Audit is required when the City receives $750,000 or more in federal grant funding. Due to the receipt of ARPA funds, the City will be required to complete a Single Audit in Fiscal Year 21/22.
A general overview of the audit will be provided by Sheldon Chavan, a partner of the audit firm and lead for the City. Specific topics of the presentation will include:
Overview of City-wide financial performance
Governmental Funds, including the General Fund
Business-Type or Enterprise Funds
Pension and Other Post-Employment Benefit (OPEB) obligations Addition information can be found in the ACFR, while select highlights pertaining to the General Fund and Capital Improvement Fund are listed below.
Fund Balance
The General Fund’s year-end balance increased from $9.8 million to $10 million.
The $193,914 increase primarily reflects the better than anticipated revenues, net of cost-savings initiatives that were implemented due to COVID-19. The unassigned fund balance was $9.9 million or 44% of total General Fund expenditures, prior to transfers.
The City's financial statements consolidate several minor funds with the General Fund for financial statement reporting purposes. This differs from the budgetary presentation. The budgetary General Fund Balance is $9.4 million, with approximately $567,000 attributed to minor sub-funds. This amount aligns with the General Fund beginning fund balance that was referenced on the Fiscal Year 21/22 budget amendment ordinances. The separate unassigned General Fund balance is approximately 41.9% of the General Fund expenditures, prior to transfers.
The unassigned General Fund balance, from both a budgetary and financial statement perspective is above the City’s policy level, which targets a minimum unassigned fund balance at 35% of operating expenditures and debt service.
The Capital Improvement Fund’s year-end balance was $220,023. This amount represents funds that were earmarked for capital projects that were carried forward into the next fiscal year.
Revenues and Expenditures
General Fund revenues for this fiscal year were $23.4 million. This represents an increase in revenues of $11,421 million when compared to the prior year. This was largely attributed to reductions in transient occupancy taxes, net of increased performance in various other tax categories, as well as Charges for Services.
General Fund expenses for this fiscal year were $22.5 million, prior to transfers. This was a decrease of $397,315 when compared to the prior year expenditures. This difference is primarily due to cost-containment efforts to assist with revenue shortfalls; and the carry-forward of executed contracts and purchase orders.
The net general fund transfers for Fiscal Year 20/21 was $628,881. This includes transfers-out of approximately $500,000 to support capital improvements, $210,000 for emergency PGCC 1-19-2022
communication services, and $50,000 to support the City's Small Business Grant Program. This was offset by transfers from the Coronavirus Relief or CARES Act Funds to the General Fund in the amount of $131,119 to cover pandemic-related expenditures.
The City's independent auditor provides a Management Letter which includes updates on prior year audit recommendations. These recommendations included conducting a physical inventory of capital assets and performing TOT audits. Staff initiated the process of conducting a physical inventory of capital assets in Fiscal Year 19/20; however due to COVID-19 and limited resources, additional time is needed. The City also entered into an agreement with HdL Companies to perform transient occupancy tax audits. The audit program was initiated in this fiscal year. Nine lodging establishments were selected for the first audit cycle.
A copy of the Transportation Safety and Investment Plan Account Fund (TAMC - Measure X), which includes the Independent Auditors Report is attached for reference. The independent auditor's statement that confirms the City is compliant with the Measure X Maintenance of Effort requirements is included on Page 6 of the TAMC Audit Report.
OPTIONS
Receive Report
FINANCIAL IMPACT:
There is no fiscal impact associated with receiving this report.
GOAL ALIGNMENT: Financial Stability: Develop a strategic plan to better address current and future City expenditure and revenue needs.
Attachments
TAMC Audit Report
PGCC 1-19-2022
Chavan & Associates, LLP
Certified Public Accountants
15105 Concord Circle, Suite 130
Morgan Hill, CA 95037
CITY OF PACIFIC GROVE
TRANSPORTATION SAFETY AND
INVESTMENT PLAN ACCOUNTFUND
WITH INDEPENDENT
AUDITORS’ REPORT
JUNE 30, 2021
* * *
PGCC 1-19-2022
CITY OF PACIFIC GROVE
Transportation Safety and Investment Plan Account Fund
June 30, 2021
Table of Contents
Page No
FINANCIAL SECTION:
Independent Auditors’ Report ........................................................................................... 1 - 2 Financial Statements:
Balance Sheet .............................................................................................................. 3 Statement of Revenue, Expenditures and Changes in Fund Balance ......................... 4 Notes to the Financial Statements ............................................................................... 5 - 6 SUPPLEMENTARY INFORMATION:
Statement of Revenues, Expenditures, and
Changes in Fund Balance – Budget and Actual .......................................................... 8 OTHER INDEPENDENT AUDITORS’ REPORTS:
Independent Auditor’s Report on Internal Control over Financial Reporting and on Compliance and Other Matters Based on an Audit of Financial Statement Performed in Accordance with Government Auditing Standards ............................... 10 - 11 Independent Auditor’s Report on Compliance with TAMC Ordinance No. 2016-01 and the Measure X Master Programs Funding Agreement ................... 12 - 13 FINDINGS AND RECOMMENDATIONS:
Schedule of Findings and Recommendations ................................................................... 15 Status of Prior Year Findings and Recommendations ...................................................... 16 PGCC 1-19-2022
FINANCIAL SECTION
PGCC 1-19-2022
Page | 1 15105 Concord Circle, Suite 130 Morgan Hill, CA 95037 Tel: 408-217-8749 • E-Fax: 408-872-4159
[email protected] • www.cnallp.com
INDEPENDENT AUDITORS’ REPORT
City Council
City of Pacific Grove
Pacific Grove, California
Report on the Financial Statements
We have audited the accompanying financial statements of the City of Pacific Grove Transportation Safety and Investment Plan Account Fund, as of and for the fiscal year ended June 30, 2021, and the related notes to the financial statements, as listed in the table of contents.
Management’s Responsibility for the Financial Statements Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
Auditor’s Responsibility
Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America and the standards contained in Government Auditing Standards, issued by the Comptroller General of the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor’s judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity’s preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity’s internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of the City’s Transportation Safety and Investment Plan Account Fund, as of June 30, 2021, and the changes in financial position thereof for the fiscal year then ended in accordance with accounting principles generally accepted in the United States of America.
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[email protected] • www.cnallp.com
Emphasis of Matter
As discussed in Note 1, the financial statements present only the Transportation Safety and Investment Plan Account Fund and do not purport to, and do not, present fairly the financial position of the City of Pacific Grove, as of June 30, 2021, the changes in its financial position, or, where applicable, its cash flows for the fiscal year then ended in accordance with accounting principles generally accepted in the United States of America. Our opinion is not modified with respect to this matter.
Other Matters
Other Information
Our audit was conducted for the purpose of forming an opinion on the Transportation Safety and Investment Plan Account Fund financial statements that collectively comprise the City of Pacific Grove Transportation Safety and Investment Plan Account Fund financial statements. The accompanying supplemental information – Schedule of Revenues, Expenditures and Changes in Fund Balance - Budget and Actual on page 8 is presented for purposes of additional analysis and is not a required part of the basic financial statements. The supplemental schedule is the responsibility of management and was derived from and relate directly to the underlying accounting and other records used to prepare the basic financial statements. Such information has been subjected to the auditing procedures applied in the audit of the City’s Transportation Safety and Investment Plan Account Fund financial statements and certain additional procedures, including comparing and reconciling such information directly to the underlying accounting and other records used to prepare the basic financial statements or to the basic financial statements themselves, and other additional procedures in accordance with auditing standards generally accepted in the United States of America. In our opinion, the supplemental schedule – Schedule of Revenues, Expenditures and Changes in Fund Balance – Budget and Actual is fairly stated, in all material respects, in relation to the basic financial statements as a whole.
Other Reporting Required by Government Auditing Standards In accordance with Government Auditing Standards, we have also issued our report dated December 14, 2021, on our consideration of the City of Pacific Grove Traffic Safety and Investment Plan Account Fund’s internal control over financial reporting and on our tests of its compliance with the requirements described in the TAMC’s Ordinance No. 2016-01 and in the Agreement between TAMC and the City and other matters for the fiscal year ended June 30, 2021. The purpose of that report is solely to report our opinion on compliance and to describe the scope of our testing of internal control over financial reporting and the results of that testing, and not to provide an opinion on the effectiveness of the City of Pacific Grove Traffic Safety and Investment Plan Account Fund’s internal control over financial reporting. That report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the City of Pacific Grove Traffic Safety and Investment Plan Account Fund’s compliance.
December 14, 2021
Morgan Hill, California
PGCC 1-19-2022
City of Pacific Grove
Transportation Safety and Investment Plan Accounting Fund Balance Sheet
June 30, 2021
3 ASSETS
Cash and investments $ 805,738
Taxes receivable 191,188
Total assets $ 996,926
LIABILITIES AND FUND BALANCE
Liabilities:
Accounts payable $ 1,188
Fund Balance:
Restricted 995,738
Total Liabilities and Fund balance $ 996,926
The accompanying notes are an integral part of these financial statements PGCC 1-19-2022
City of Pacific Grove
Transportation Safety and Investment Plan Accounting Fund Statement of Revenues, Expenditures
and Changes in Fund Balance
June 30, 2021
4 REVENUES
Transportation Safety and Investment Plan Account revenue $ 657,027 Investment earnings (114)
Total Revenues 656,913
EXPENDITURES
Capital outlay 548,796
Total Expenditures 548,796
Net Change in Fund Balance 108,117
Fund Balance Beginning 887,621
Fund Balance Ending $ 995,738
The accompanying notes are an integral part of these financial statements PGCC 1-19-2022
City of Pacific Grove
Transportation Safety and Investment Plan Account Fund
Notes to the Financial Statements
For the Fiscal Year Ended June 30, 2021
5 NOTE 1 – SIGNIFICANT ACCOUNTING POLICIES
Basis of Accounting
The accounting and financial reporting treatment applied to a fund is determined by its measurement focus. The Transportation Safety and Investment Plan Account Fund of the City of Pacific Grove (the City) is a governmental fund type. Governmental funds are accounted for using a current financial resources measurement focus. The application of this measurement focus provides that, in general, only current assets and current liabilities are present on the balance sheet. Operating statements of these funds present revenues and expenditures.
The modified accrual basis of accounting is used for the Transportation Safety and Investment Plan Account Fund. Under the modified accrual basis of accounting, revenues are recognized when they become susceptible to accrual (i.e., both measurable and available). Measurable means that the amount of the transaction can be determined. Available means the funds are collectible within the current period or soon enough thereafter to be used to pay liabilities of the current period. For this purpose, the City considers revenues to be available if they are collected within 60 days of the end of the current fiscal period.
Expenditures of governmental funds are generally recognized when the related fund liability is incurred.
Reporting Entity
The Transportation Safety and Investment Plan Account Fund from the Transportation Agency for Monterey County was approved on November 8, 2016. The revenue from the sales tax measure will be used to fund transportation safety and mobility projects in Monterey County. Expenditures are restricted to road improvements, pothole repairs, street and road maintenance, traffic deduction and regional safety, mobility and walkability.
The Transportation Safety and Investment Plan Fund financial statements and related accounting policies of the City conform with generally accepted accounting principles applicable to governments in the United States of America. The Governmental Accounting Standards Board (GASB) is the accepted standard-setting body for establishing governmental accounting and financial reporting principles.
The financial statements present only the Transportation Safety and Investment Plan Account Fund and do not purport to, and do not present, the City’s financial position and changes in financial position.
The City of Pacific Grove’s basic financial statements are available from the Finance Department at City’s address and website.
NOTE 2 – CASH DEPOSITS
The City follows the practice of pooling cash and investments for all funds (including the Transportation Safety and Investment Plan Account Fund) under its direct daily control. Interest earned on pooled cash and investments is allocated periodically to the various funds based on average cash balances. Detailed disclosure regarding the City’s investments of cash is included in the notes to City’s basic financial statements.
PGCC 1-19-2022
City of Pacific Grove
Transportation Safety and Investment Plan Account Fund
Notes to the Financial Statements
For the Fiscal Year Ended June 30, 2021
6 NOTE 3 – MAINTENANCE OF EFFORT
The Measure X Master Programs Funding Agreement between the City of Pacific Grove and the Transportation Agency for Monterey County, as amended, requires that the City must expend each fiscal year from its general fund for street and highway purposes an amount not less than the annual average of its expenditures from its general fund during the 2009-10, 2010-11, and 2011-12 fiscal years, but not less than what was expended in 2016-17 (when Measure X passed), as reported to the Controller pursuant to Streets and Highways Code section 2151 (“Maintenance of Effort”). This baseline amount will be indexed annually to the Engineering News Record construction index.
The following eligible expenditures were made:
Total expenditures from the general fund for street and highway purposes for the fiscal year ended June 30, 2021 was $1,388,634. The City was in compliance with the Maintenance of Effort requirement of the Measure X Master Programs Funding Agreement between the City of Pacific Grove and the Transportation Agency for Monterey County.
Fiscal year ended June 30:
2010 $326,756
2011 $396,862
2012 $720,604
Total $1,444,222
Three-year average $481,407
Fiscal year ended June 30, 2017 $912,274
Maintenance of effort baseline $912,274
Engineering News Record construction index FY 2019/20 1.37% Engineering News Record construction index FY 2020/21 1.27% Index-adjusted maintenance of effort requirement $936,458 Current year eligible expenditures $1,388,634
Compliant (Yes or No) Yes
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7 SUPPLEMENTARY
INFORMATION
PGCC 1-19-2022
City of Pacific Grove
Transportation Safety and Investment Plan Account Fund
Statement of Revenues, Expenditures, and
Changes in Fund Balance
Budget and Actual (GAAP Basis)
For the Fiscal Year Ended June 30, 2021
8 Variance with
Final Budget
Actual Positive
Original Final Amounts (Negative)
REVENUES
Transportation Safety and Investment Plan Account Revenue $ 552,500 $ 568,593 $ 657,027 $ 88,434 Interest 6,000 4,724 (114) (4,838)
Total Revenues 558,500 573,317 656,913 83,596
EXPENDITURES
Capital outlay 676,530 1,457,282 548,796 908,486
Total Expenditures 676,530 1,457,282 548,796 908,486
Net Change in Fund Balance (118,030) (883,965) 108,117 992,082 Fund Balance Beginning 887,621 887,621 887,621 -
Fund Balance Ending $ 769,591 $ 3,656 $ 995,738 $ 992,082 Budgeted Amounts
The City employs budget control by object codes and by individual appropriation accounts. Budgets are prepared on the modified accrual basis of accounting in accordance with accounting principles generally accepted in the United States of America as prescribed by the Governmental Accounting Standards Board. The budgets are revised during the year by the City Council to provide for revised priorities. Expenditures cannot legally exceed appropriations by major object code. The originally adopted and final revised budgets for the Measure X Special Revenue Fund are presented as Required Supplementary Information. The basis of budgeting is the same as GAAP.
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9 OTHER INDEPENDENT
AUDITORS REPORTS
PGCC 1-19-2022
Page | 10 15105 Concord Circle, Suite 130 Morgan Hill, CA 95037 Tel: 408-217-8749 • E-Fax: 408-872-4159
[email protected] • www.cnallp.com
INDEPENDENT AUDITOR’S REPORT ON INTERNAL CONTROL
OVER FINANCIAL REPORTING AND ON COMPLIANCE AND OTHER
MATTERS BASED ON AN AUDIT OF FINANCIAL STATEMENT PERFORMED
IN ACCORDANCE WITH GOVERNMENT AUDITING STANDARDS
City Council
City of Pacific Grove
Pacific Grove, California
We have audited, in accordance with auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the Transportation Safety and Investment Plan Account Fund (Measure X Fund) of City of Pacific Grove (the “City”) as of and for the year ended June 30, 2021, and the related notes to the financial statements, which collectively comprise City of Pacific Grove’s Measure X Fund financial statements, and have issued our report thereon dated December 14, 2021.
Internal Control over Financial Reporting
In planning and performing our audit, we considered the City of Pacific Grove’s internal control over financial reporting (internal control) to determine the audit procedures that are appropriate in the circumstances for the purpose of expressing our opinions on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the City of Pacific Grove’s internal control. Accordingly, we do not express an opinion on the effectiveness of the City of Pacific Grove’s internal control.
A deficiency in internal control exists when the design or operation of a control does not allow management or employees in the normal course of performing their assigned functions, to prevent, or detect and correct misstatement on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control, such that there is a reasonable possibility that a material misstatement of the City’s financial statement will not be prevented, or detected and corrected on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance.
Our consideration of internal control over financial reporting was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control over financial reporting that might be material weaknesses or significant deficiencies. Given these limitations, during our audit we did not identify any deficiencies in internal control over financial reporting that we consider to be material weaknesses. However, material weaknesses may exist that have not been identified.
Compliance and Other Matters
As part of obtaining reasonable assurance about whether the City of Pacific Grove’s Measure X Fund financial statements are free from material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the determination of financial statement amounts. However, providing an opinion on compliance with those provisions was not an objective of our audit and, accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards.
PGCC 1-19-2022
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[email protected] • www.cnallp.com
Purpose of this Report
The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the City’s internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the City’s internal control and compliance. Accordingly, this communication is not suitable for any other purpose.
December 14, 2021
Morgan Hill, California
PGCC 1-19-2022
Page | 12 15105 Concord Circle, Suite 130 Morgan Hill, CA 95037 Tel: 408-217-8749 • E-Fax: 408-872-4159
[email protected] • www.cnallp.com
INDEPENDENT AUDITORS’ REPORT ON COMPLIANCE WITH
TAMC ORDINANCE NO. 2016-01 AND THE MEASURE X
MASTER PROGRAMS FUNDING AGREEMENT
City Council
City of Pacific Grove
Pacific Grove, California
We have audited the City of Pacific Grove’s (the “City”) Transportation Safety and Investment Plan Account Fund’s (the City’s Measure X Fund) compliance with the types of compliance requirements described in the Transportation Agency’s for Monterey County’s (TAMC) Ordinance No. 2016-01 and the Measure X Master Programs Funding Agreement (the Agreement) between TAMC and the City, applicable for the fiscal year ended June 30, 2021.
Management’s Responsibility
Management is responsible for compliance with the requirements of laws, regulations, contracts, and grants applicable to the Transportation Safety and Investment Plan Account Fund.
Auditor’s Responsibility
Our responsibility is to express an opinion on the City’s compliance based on our audit in accordance with the compliance requirements described in the Transportation Agency for Monterey County’s (TAMC) Ordinance No. 2016-01 and in the Measure X Master Programs Funding Agreement (the Agreement) between TAMC and the City. The Measure X Master Programs Funding Agreement requires that the independent auditor shall perform at least the following tasks: (1) determine whether the recipient expended all Measure X funds received in compliance with Measure X, the Measure X Investment Plan, and the Policies & Project Descriptions, as they may be adopted or amended by TAMC from time to time, and the Agreement, (2) determine whether the Measure X revenues received and expended were accounted for and tracked in its own separate budget and fund titled “Transportation Safety & Investment Plan Account” and were not be comingled with any other funds and that the accounting system provides adequate internal controls and audit trails to facilitate an annual compliance audit for each fund type and the respective usage and application of said funds, and (3) determine whether the City met the Maintenance of Effort requirements imposed by Measure X and State law. We conducted our audit of compliance in accordance with auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether noncompliance with the compliance requirements referred to above that could have a direct and material effect on the state laws and regulations applicable to the City occurred.
An audit includes examining, on a test basis, evidence about the City’s compliance with those requirements and performing such other procedures as we considered necessary in the circumstances.
We believe that our audit provides a reasonable basis for our opinion on compliance. However, our audit does not provide a legal determination of the City’s compliance.
Opinion on Compliance with the TAMC Ordinance No. 2016-01 In our opinion, the funds allocated to and received by the City’s Measure X Fund, complied, in all material respects, with the compliance requirements referred to above that are applicable in accordance to the compliance requirements described in the Transportation Agency for Monterey County’s (TAMC) Ordinance No. 2016-01 and in the Measure X Master Programs Funding Agreement between TAMC and the City for the fiscal year ended June 30, 2021.
PGCC 1-19-2022
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[email protected] • www.cnallp.com
Purpose of this Report
The purpose of this report is solely to report our opinion on compliance with the TAMC Ordinance No. 2016-01 and to describe the scope of our testing over compliance and the results of that testing. This report is intended solely for the information and use of City Council, management of the Transportation Agency for Monterey County and for filing with the appropriate regulatory agencies and is not intended to be and should not be used by anyone other than these specified parties.
December 14, 2021
Morgan Hill, California
PGCC 1-19-2022
14 FINDINGS AND
RECOMMENDATIONS
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City of Pacific Grove
Transportation Safety and Investment Plan Account Fund
Schedule of Findings and Recommendations
For the Fiscal Year Ended June 30, 2021
15 None reported.
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City of Pacific Grove
Transportation Safety and Investment Plan Account Fund
Status of Prior Year Findings and Recommendations
For the Fiscal Year Ended June 30, 2021
16 None reported.
PGCC 1-19-2022
Agenda No. 13 D
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Ben Harvey, City Manager
MEETING DATE: January 19, 2022
SUBJECT: CONCEPT REVIEW: ARPA Funding Public Outreach
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
Review proposed public outreach approach and provide direction to staff.
DISCUSSION
The City anticipates receiving another $1.84 million in American Recovery Plan Act (ARPA) funds in July of this year. These anticipated funds will be booked as revenue, upon receipt. However, the City will anticipate their arrival, and will include them within the proposed Fiscal Year 22-23 budget. At this time, it is not known if the anticipated ARPA funds will need to be used to address City revenue shortfalls, as was the case with the last tranche of ARPA funds received in Fiscal Year 21-22. City staff will have more information in this area after the mid-year budget budget presentation and forecast, which will take place at either the end of February or early March.
Assuming that at least a portion, if not most, of the anticipated ARPA funding coming in the next fiscal year is not needed to backfill revenue shortfalls, it is suggested that public outreach take place to determine the public's proposed priorities for spending the revenue. To accomplish this, a survey may be deployed, and a town hall meeting may be convened. For the survey, it is suggested that the City avail itself of the survey functionality through its software license with Zencity. Zencity has a sample survey that has been used in other municipalities that is attached to this agenda report for review. The survey may be modified should the City Council wish for additional information. Zencity will create a link to the survey, which may be posted on social media, accessed through the City website, and printed on postcards should the City decide to incur a US Mail expense as part of this effort. Following at least a month after the survey has been released, a town hall meeting could be convened to review the results with the public, and gain additional feedback. The result could then be presented to the City Council for discussion and determination as to how best to program the ARPA funding.
OPTIONS
Take no action; please note that taking no action will cause this proposed public outreach effort to cease.
1. 2. Provide revised or alternate direction.
PGCC 1-19-2022
FINANCIAL IMPACT:
Should the City Council provide direction to send out postcards with the survey link, there could be an expenditure for this effort estimated at approximately $3,000, which could be covered with available funding within the approved FY 21-22 budget.
GOAL ALIGNMENT: Transparency, Accountability and Communication: Implement programs, processes, revisions, and training to improve and advance the City's efforts.
Attachments
Sample ARPA Survey
PGCC 1-19-2022
ARPA funding prioritization Survey
The city of Pacific Grove is running a survey to help prioritize incoming ARPA funding according to its residents' needs.
In your opinion, how should the funding be spent? Share your opinion in this quick anonymous survey.
Do you live in the limits of Pacific Grove? [check all that apply] Yes
No [divert out of the survey]
# select 10-13 of the following for utilizing ARPA funds that you would like residents to rank. You can also suggest options that are relevant to your community. #
1. Please rank the following opportunities to use APRA funds using the following scale:
1 - No priority 2 - Low priority 3 - Medium priority 4 - High priority 5 - Very high priority
1. Support for households facing housing insecurity, such as emergency rent/mortgage assistance, utility assistance, and legal support for those facing eviction or foreclosure
2. Funding to address homelessness, including temporary shelters and affordable long-term housing
3. Assistance to restaurants, bars, retail stores, and other small businesses impacted by COVID-19
4. Funding for local nonprofits such as food banks and social service agencies
5. Support for local arts, music, entertainment, and tourism-related businesses
6. Funding for new economic development and job training initiatives
7. Improvements to local water and sewer infrastructure
8. Improvements to public streets, intersections, and sidewalks
9. Improvements to city / town buildings and other public facilities
10. Government technology upgrades to more online services and improve cybersecurity
11. Increased internet access through broadband infrastructure and public wi-fi networks
12. Investments in improved public transit services
13. Increased funding for local parks and recreation programs
14. Increased funding for police and other public safety agencies
15. Increased funding for fire, EMS, and other first responders PGCC 1-19-2022
16. Expanded outreach to promote vaccination, greater access to testing, and other public health measures
2. [optional] In what other ways should Pacific Grove use APRA funding? [Open-ended] Demographic question [optional]:
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Agenda No. 13 E
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Bill Peake, Mayor
MEETING DATE: January 19, 2022
SUBJECT: Leadership - Mastering Your Role as an Elected Official CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
Receive report and discuss.
DISCUSSION
Material below originated from the Institute for Local Government’s ‘Level Up Your Leadership’ training held December 6 and 13, 2021.
Leadership on the Council: Foundations For Exceptional Councils Develop a sense of team
Successfully transition from candidate to a member of council.
Become a champion for your agency. Make decisions based on the needs and interests of the community at-large / the greater good.
Develop, communicate and support policy goals and council decisions.
Demonstrate a willingness to work collaboratively and have an agency-wide perspective.
Have clear roles and responsibilities
Understand your role in local government and responsibilities.
Know your role: to set vision and policy, avoid micromanagement.
Council should strive to be informed about the issues facing their agency and be prepared to ask questions of staff and each other.
Honor the relationship with staff and each other
Elected officials have the ability to respectfully disagree (i.e. to disagree without being disagreeable).
They are able to leave it at the dais; debates are about policy, not personality.
Exceptional elected officials reflect positive decorum and model leadership by using respectful tone with colleagues.
Effective councils establish a set of behaviors in advance - to promote civility and respect.
Conduct effective meetings
Elected officials are respectful of each other, the public and everyone’s time.
Elected officials use engaging body language as a way to demonstrate respect.
Issues are not personalized - thoughtful dialogue is the objective.
Agenda packets are read, councilmembers come prepared and have an open mind.
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Respect is demonstrated for varied opinions.
Everyone strives to be civil and act with decorum.
Hold themselves and the agency accountable
Operate ethically and with integrity.
Conduct team building and/or goal setting exercises to track progress towards mutually agreed upon goals
Take responsibility for the results (good and bad).
Celebrate success.
Hold themselves responsible for adhering to operating protocols and codes of conduct.
Practice continuous learning and development.
Stay informed on key issues.
Gain key insights and knowledge on all aspects of governing, from budgets to plans and everything in between.
Learn to listen. Listening is sometimes more important than learning to give a speech.
If the above were a scorecard, how do you think we rate? Where can you/we improve? Does being an exceptional Council mean members always agree? Additional topics discussed included trust. “Trust takes years to build, seconds to break and forever to repair”.
I recommend this training.
OPTIONS
N/A
FINANCIAL IMPACT:
There is no fiscal impact.
GOAL ALIGNMENT: Facilitate Local Business Recovery: Review and revise existing policies and programs and develop a strategic plan to better serve existing businesses.
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Agenda No. 13 F
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Nick Smith, Councilmember
MEETING DATE: January 19, 2022
SUBJECT: Council Liaison Role
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
Review role and provide staff direction.
DISCUSSION
Since at least 2010, Council has had an informal practice of assigning a “Council liaison” to its Boards and Commissions (“Boards”). However, there has been confusion and a lack of clarity in the purpose and scope of the Council liaison role. Further, liaisons have been serving in this role without a formal Council action in ordinance or resolution to institute or define the practice. In my five years serving on the Council, I have found the Council liaison appointment to be problematical in a number of ways, which are highlighted below.
First, having a Council liaison leads to potential Brown Act violations. The Boards often look to Councilmembers to provide advice or guidance on various topics while in session or outside of session. Frequently, these topics include items that could come before Council as the governing body and the Board as the subordinate body. Any such activity by a Councilmember may require recusal by the Councilmember, depending on the content of the discussion at the subordinate body level or with members of the subordinate body. It is an area ripe with potentially significant issues.
Second, the purpose of the City’s Boards is to act independently of the Council and advise the Council on matters rather than the reverse. It should not be influenced by Councilmembers serving as liaisons so that as many interests as possible are represented within the jurisdiction.
Third, Councilmembers must spend time to attend Board meetings. However, Councilmember roles and participation must be extremely limited. This is time that Councilmembers could spend on various initiatives at the Council level. Commonly, a Council liaison provides a very brief summary of the previous Council meeting. In lieu of this brief report, Board members could review the Council minutes to keep abreast of the actions of the Council and can also attend Council meetings. Likewise, a Councilmember could catch up on Board activities by reading meeting minutes, which are included in Council agenda packets.
Overall, the costs outweigh the benefits of having Council liaisons. There is a reason the role has PGCC 1-19-2022
not been clarified at some point in the last decade by various Councils who have considered doing so; it is very problematic to try to define.
We should allow our Boards to function independently and end the Council liaison practice.
OPTIONS
Provide alternate direction.
FINANCIAL IMPACT:
There is no fiscal impact.
GOAL ALIGNMENT: Not Applicable.
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Agenda No. 13 G
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Bill Peake, Mayor
MEETING DATE: January 19, 2022
SUBJECT: Elizabeth Hull Legal Services for ATC Project
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
Approve payment not exceeding $100,000 to Best Best & Krieger LLP for Elizabeth Hull legal services related to development/commercial real estate of the ATC Hotel and Commercial Project.
1. 2. Discuss financial controls for Council approved items that do not have stated expenditure limits.
DISCUSSION
Council voted 7-0 to approve the addition of Elizabeth Hull, Best Best & Krieger to the negotiating team for the vacation of Sloat Ave. and Ocean View Blvd easement in closed session on August 18, 2021. Negotiations are ongoing, and invoices received now exceed the City Manager’s expenditure authority of $40,000. Council’s approval for hiring Elizabeth Hull did not include an expenditure limit.
Council authorized the City Manager and City Attorney to proceed with litigation against the California Department of Tax and Fee Administration (CDTFA), and to contract with Michael Colantuono for litigation services in closed session on February 24, 2021. Council’s approval for hiring Michael Colantuono did not include an expenditure limit. Michael Colantuono was paid $106,797.99 for CDTFA transactions and use tax litigation. This amount exceeds the City Manager’s expenditure authority.
It is appropriate that Council discuss financial controls for handling situations in which Council approves an action without specifying a maximum expenditure.
GOAL ALIGNMENT – Not an explicit Council goal.
OPTIONS
None.
FINANCIAL IMPACT:
BB&K was paid nearly $40,000 which is within the City Manager’s expenditure authority. Council PGCC 1-19-2022
BB&K was paid nearly $40,000 which is within the City Manager’s expenditure authority. Council approval allows for a maximum additional payment of $60,000 for a total payment of $100,000. A budget amendment ordinance to reflect the additional $60,000 will be incorporated into the mid-year budget process.
GOAL ALIGNMENT: See Goal Alignment within Discussion section.
Attachments
BBK EH Agreement under $40K
BBK EH Agreement 1-7-2022
Colantuono Letter Agreement
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CITY OF PACIFIC GROVE AGREEMENT FOR PROFESSIONAL SERVICES (Under $40,000)
This Professional Services Agreement (“Agreement”) is made by and between the City of Pacific Grove, a political subdivision of the State of California (hereinafter “City”) and Best Best & Krieger, LLP, (hereinafter “CONTRACTOR”).
In consideration of the mutual covenants and conditions set forth in this Agreement, the parties agree as follows:
1. SERVICES TO BE PROVIDED. The City hereby engages CONTRACTOR to perform, and CONTRACTOR hereby agrees to perform, the services described in Exhibit A in conformity with the terms of this Agreement. The services are generally described as follows: on call development related and CEQA legal services .
2. PAYMENTS BY CITY. City shall pay the CONTRACTOR in accordance with the payment provisions set forth in Exhibit A, subject to the limitations set forth in this Agreement. The total amount payable by City to CONTRACTOR under this Agreement shall not exceed the sum of $ 39,500.
3. TERM OF AGREEMENT. The term of this Agreement is from July 1, 2021 to July 1, 2022 unless sooner terminated pursuant to the terms of this Agreement. This Agreement is of no force or effect until signed by both CONTRACTOR and City and with City signing last, and CONTRACTOR may not commence work before City signs this Agreement.
4. ADDITIONAL PROVISIONS/EXHIBITS. The following attached exhibits are incorporated herein by reference and constitute a part of this Agreement:
Exhibit A: Scope of Services and Rates
Exhibit B: Waiver of Indemnity and Insurance provisions
5. PERFORMANCE STANDARDS.
5.01. CONTRACTOR warrants that CONTRACTOR and CONTRACTOR’s agents, employees, and subcontractors performing services under this Agreement are specially trained, experienced, competent, and appropriately licensed to perform the work and deliver the services required under this Agreement and are not employees of the City, or immediate family of an employee of the City.
5.02. CONTRACTOR, its agents, employees, and subcontractors shall perform all work in a safe and skillful manner and in compliance with all applicable laws and regulations. All work performed under this Agreement that is required by law to be performed or supervised by licensed personnel shall be performed in accordance with such licensing requirements.
5.03. CONTRACTOR shall furnish, at its own expense, all materials, equipment, and personnel necessary to carry out the terms of this Agreement, except as otherwise specified in this Agreement. CONTRACTOR shall not use City premises, property (including equipment, instruments, or supplies) or personnel for any purpose other than in the performance of its obligations under this Agreement.
6. PAYMENT CONDITIONS.
6.01. CONTRACTOR shall submit to the Contract Administrator an invoice on a form acceptable to City.
If not otherwise specified, the CONTRACTOR may submit such invoice monthly or at the completion of each phase of the project, as provided on page 16 of the proposal, but in any event, not later than 30 days after completion of services. The invoice shall set forth the amounts claimed by CONTRACTOR for the previous DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 PGCC 1-19-2022
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period, together with an itemized basis for the amounts claimed, and such other information pertinent to the invoice as the City may require. The Contract Administrator or his or her designee shall certify the invoice, either in the requested amount or in such other amount as the City approves in conformity with this Agreement, and shall promptly submit such invoice to the City Auditor-Controller for payment. The City Auditor-Controller shall pay the amount certified within 30 days of receiving the certified invoice.
6.02. CONTRACTOR shall receive reimbursement for reasonable travel expenses.
7. TERMINATION.
7.01. During the term of this Agreement, the City may terminate the Agreement for any reason by giving written notice of termination to the CONTRACTOR at least thirty (30) days prior to the effective date of termination. Such notice shall set forth the effective date of termination. In the event of such termination, the amount payable under this Agreement shall be reduced in proportion to the services provided prior to the date of termination.
7.02. The City may cancel and terminate this Agreement for good cause effective immediately upon written notice to CONTRACTOR. “Good cause” includes the failure of CONTRACTOR to perform the required services at the time and in the manner provided under this Agreement. If City terminates this Agreement for good cause, the City may be relieved of the payment of any consideration to CONTRACTOR, and the City may proceed with the work in any manner which City deems proper. The cost to the City shall be deducted from any sum due the CONTRACTOR under this Agreement.
8. INDEMNIFICATION.
8.01. As respects all acts or omissions which do not arise directly out of the performance of professional services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, CONTRACTOR shall indemnify, defend, and hold harmless the City, its officers, agents, and employees, from and against any and all claims, liabilities, and losses whatsoever (including damages to property and injuries to or death of persons, court costs, and reasonable attorneys’ fees) occurring or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims, liabilities, and losses occurring or resulting to any person, firm, or corporation for damage, injury, or death arising out of or connected with the CONTRACTOR’s performance of this Agreement, unless such claims, liabilities, or losses arise out of the sole negligence or willful misconduct of the City. “CONTRACTOR’s performance” includes CONTRACTOR’s action or inaction and the action or inaction of CONTRACTOR’s officers, employees, agents and subcontractors.
8.02. Architects, Engineers Per Civil Code 2782.8 Where the services to be provided by CONTRACTOR under this Agreement are design professional services, as that term is defined under Civil Code Section 2782.8, CONTRACTOR agrees to indemnify, defend and hold harmless, the City, its officers, officials, employees and volunteers from any and all claims, demands, costs or liability that actually or allegedly arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of CONTRACTOR and its agents in the performance of services under this contract, but this indemnity does not apply to liability for damages for bodily injury, property damage or other loss, arising from the sole negligence, active negligence or willful misconduct by the City, its officers, official employees, and volunteers. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of the City, then CONTRACTOR’s indemnification and defense obligations shall be reduced in proportion to the established comparative liability of the City and shall not exceed the CONTRACTOR’s proportionate percentage of fault.
As respects all acts or omissions which do not arise directly out of the performance of design professional services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, CONTRACTOR agrees to indemnity, defend and hold harmless the City, its officers officials, DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 PGCC 1-19-2022
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employees and volunteers for an against any claim, demands, losses, liability of any kind or nature arising out of or in connection with the CONTRACTOR's performance or failure to perform under the terms of this contract, excepting those which arise out of the active negligence, sole negligence or willful misconduct of the City, its officers, officials, employees and volunteers.
❑ Exemption/Modification (Justification attached; subject to approval).
9. INSURANCE.
9.01. Insurance Coverage Requirements: Without limiting CONTRACTOR’s duty to indemnify, CONTRACTOR shall maintain in effect throughout the term of this Agreement a policy or policies of insurance with the following minimum limits of liability:
Commercial general liability insurance, no less broad than Insurance Services Office (ISO) CG 00 01, including but not limited to premises and operations, including coverage for Bodily Injury and Property Damage, Personal Injury, Contractual Liability, Broadform Property Damage, Independent Contractors, Products and Completed Operations, with a minimum Limits: $1,000,000 per Occurrence; $2,000,000 General Aggregate; $2,000,000 Products/Completed Operations Aggregate. The required limits may be provided by a combination of General Liability Insurance and Commercial Excess or Umbrella Liability Insurance. If CONTRACTOR maintains higher limits than the specified minimum limits, City requires and shall be entitled to coverage for the higher limits maintained by CONTRACTOR.
❑ Exemption/Modification (Justification attached; subject to approval).
Business automobile liability insurance, covering all motor vehicles, including owned, leased, non-owned, and hired vehicles, used in providing services under this Agreement, with a combined single limit for Bodily Injury and Property Damage of not less than $1,000,000 per occurrence. ❑ Exemption/Modification (Justification attached; subject to approval).
Workers’ Compensation Insurance, if CONTRACTOR employs others in the performance of this Agreement, in accordance with California Labor Code section 3700 and with Employer’s Liability limits not less than $1,000,000 each person, $1,000,000 each accident and $1,000,000 each disease. ❑ Exemption/Modification (Justification attached; subject to approval).
Professional liability insurance, if required for the professional services being provided, (e.g., those persons authorized by a license to engage in a business or profession regulated by the California Business and Professions Code), in the amount of not less than $1,000,000 per claim and $2,000,000 in the aggregate, to cover liability for malpractice or errors or omissions made in the course of rendering professional services. If professional liability insurance is written on a “claims-made” basis rather than an occurrence basis, the retroactive date shall be no later than the commencement of the work. Coverage applicable to the work performed under this agreement shall be continued for three (3) years after completion of the work . Such continuation coverage may be provided by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the work under this agreement.
❑ Exemption/Modification (Justification attached; subject to approval).
DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 PGCC 1-19-2022
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9.02. Other Insurance Requirements. All insurance required by this Agreement shall be with a company acceptable to the City and issued and executed by an admitted insurer authorized to transact Insurance business in the State of California. Unless otherwise specified by this Agreement, all such insurance shall be written on an occurrence basis, or, if the policy is not written on an occurrence basis, such policy with the coverage required herein shall continue in effect for a period of three years following the date CONTRACTOR completes its performance of services under this Agreement.
. CONTRACTOR shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, CONTRACTOR shall forthwith obtain and submit proof of substitute insurance. Should CONTRACTOR fail to immediately procure other insurance, as specified, to substitute for any canceled policy, the City may procure such insurance at CONTRACTOR’s sole cost and expense.
Commercial general liability and automobile liability policies shall provide an endorsement naming the City of Pacific Grove, its officers, agents, and employees as Additional Insureds with respect to liability arising out of the CONTRACTOR’S work, including ongoing and completed operations, and shall further provide that such insurance is primary insurance to any insurance or self-insurance maintained by the City and that the insurance of the Additional Insureds shall not be called upon to contribute to a loss covered by the CONTRACTOR’S insurance. The required endorsement form for Commercial General Liability Additional Insured is ISO Form CG 20 10 11-85 or CG 20 10 10 01 in tandem with CG 20 37 10 01 (2000). The required endorsement form for Automobile Additional Insured endorsement is ISO Form CA 20 48 02 99.
The general liability policy shall cover inter-insured suits and include a “separation of Insureds” or “severability” clause which treats each insured separately.
CONTRACTOR shall provide to City an endorsement that the insurer waives the right of subrogation against the City, its officers, officials, employees, agents and volunteers.
Prior to the execution of this Agreement by the City, CONTRACTOR shall file certificates of insurance with the City’s contract administrator and City’s Contracts/Purchasing Division, showing that the CONTRACTOR has in effect the insurance required by this Agreement. The CONTRACTOR shall file a new or amended certificate of insurance within five calendar days after any change is made in any insurance policy which would alter the information on the certificate then on file. Acceptance or approval of insurance shall in no way modify or change the indemnification clause in this Agreement, which shall continue in full force and effect.
CONTRACTOR shall at all times during the term of this Agreement maintain in force the insurance coverage required under this Agreement and shall send, without demand by City, annual certificates to City’s Contract Administrator and City’s Contracts/Purchasing Division. If the certificate is not received by the expiration date, City shall notify CONTRACTOR and CONTRACTOR shall have five calendar days to send in the certificate, evidencing no lapse in coverage during the interim. Failure by CONTRACTOR to maintain such insurance is a default of this Agreement which entitles City, at its sole discretion, to terminate this Agreement immediately.
10. RECORDS AND CONFIDENTIALITY.
10.01. Confidentiality. CONTRACTOR and its officers, employees, agents, and subcontractors shall comply with any and all federal, state, and local laws which provide for the confidentiality of records and other information. CONTRACTOR shall not disclose any confidential records or other confidential information received from the City or prepared in connection with the performance of this Agreement, unless City specifically permits CONTRACTOR to disclose such records or information. CONTRACTOR shall promptly transmit to DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 PGCC 1-19-2022
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City any and all requests for disclosure of any such confidential records or information. CONTRACTOR shall not use any confidential information gained by CONTRACTOR in the performance of this Agreement except for the sole purpose of carrying out CONTRACTOR’s obligations under this Agreement.
10.02. City Records. When this Agreement expires or terminates, CONTRACTOR shall return to City any City records which CONTRACTOR used or received from City to perform services under this Agreement.
10.03. Maintenance of Records. CONTRACTOR shall prepare, maintain, and preserve all reports and records that may be required by federal, state, and City rules and regulations related to services performed under this Agreement. CONTRACTOR shall maintain such records for a period of at least three years after receipt of final payment under this Agreement. If any litigation, claim, negotiation, audit exception, or other action relating to this Agreement is pending at the end of the three year period, then CONTRACTOR shall retain said records until such action is resolved.
10.04. Access to and Audit of Records. The City shall have the right to examine, monitor and audit all records, documents, conditions, and activities of the CONTRACTOR and its subcontractors related to services provided under this Agreement. Pursuant to Government Code section 8546.7, if this Agreement involves the expenditure of public funds in excess of $10,000, the parties to this Agreement may be subject, at the request of the City or as part of any audit of the City, to the examination and audit of the State Auditor pertaining to matters connected with the performance of this Agreement for a period of three years after final payment under the Agreement.
10.05. Royalties and Inventions. City shall have a royalty-free, exclusive and irrevocable license to reproduce, publish, and use, and authorize others to do so, all original computer programs, writings, sound recordings, pictorial reproductions, drawings, and other works of similar nature produced in the course of or under this Agreement. CONTRACTOR shall not publish any such material without the prior written approval of City.
11. NON-DISCRIMINATION. During the performance of this Agreement, CONTRACTOR, and its subcontractors, shall not unlawfully discriminate against any person because of race, religious creed, color, sex, national origin, ancestry, physical disability, mental disability, medical condition, marital status, age (over 40), or sexual orientation, either in CONTRACTOR’s employment practices or in the furnishing of services to recipients. CONTRACTOR shall ensure that the evaluation and treatment of its employees and applicants for employment and all persons receiving and requesting services are free of such discrimination. CONTRACTOR and any subcontractor shall, in the performance of this Agreement, fully comply with all federal, state, and local laws and regulations which prohibit discrimination. The provision of services primarily or exclusively to such target population as may be designated in this Agreement shall not be deemed to be prohibited discrimination.
12. COMPLIANCE WITH TERMS OF STATE OR FEDERAL GRANT. If this Agreement has been or will be funded with monies received by the City pursuant to a contract with the state or federal government in which the City is the grantee, CONTRACTOR will comply with all the provisions of said contract, to the extent applicable to CONTRACTOR as a subgrantee under said contract, and said provisions shall be deemed a part of this Agreement, as though fully set forth herein. Upon request, City will deliver a copy of said contract to CONTRACTOR, at no cost to CONTRACTOR.
13. INDEPENDENT CONTRACTOR. In the performance of work, duties, and obligations under this Agreement, CONTRACTOR is at all times acting and performing as an independent contractor and not as an employee of the City. No offer or obligation of permanent employment with the City or particular City department or agency is intended in any manner, and CONTRACTOR shall not become entitled by virtue of this Agreement to receive from City any form of employee benefits including but not limited to sick leave, vacation, retirement benefits, workers’ compensation coverage, insurance or disability benefits. CONTRACTOR shall be solely liable DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 PGCC 1-19-2022
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for and obligated to pay directly all applicable taxes, including federal and state income taxes and social security, arising out of CONTRACTOR’s performance of this Agreement. In connection therewith, CONTRACTOR shall defend, indemnify, and hold City harmless from any and all liability which City may incur because of CONTRACTOR’s failure to pay such taxes.
14. NOTICES. Notices required under this Agreement shall be delivered personally or by first-class, postage pre-paid mail to the City’s and CONTRACTOR’S contract administrators at the addresses listed below:
FOR CITY: FOR CONTRACTOR:
Ben Harvey, City Manager Scott Campbell
Best Best & Kriger LLP
300 Forest Avenue
Pacific Grove, CA 93950
(831) 648-
300 South Grand Ave.,
25th Floor
Los Angeles, CA 90071
Tel: (213) 617-8100
Fax: (213) 617-7480
15. MISCELLANEOUS PROVISIONS.
15.01. Conflict of Interest. CONTRACTOR represents that it presently has no interest and agrees not to acquire any interest during the term of this Agreement which would directly or indirectly conflict in any manner or to any degree with the full and complete performance of the professional services required to be rendered under this Agreement.
15.02. Amendment. This Agreement may be amended or modified only by an instrument in writing signed by the City and the CONTRACTOR.
15.03. Waiver. Any waiver of any terms and conditions of this Agreement must be in writing and signed by the City and the CONTRACTOR. A waiver of any of the terms and conditions of this Agreement shall not be construed as a waiver of any other terms or conditions in this Agreement.
15.04. Contractor. The term “CONTRACTOR” as used in this Agreement includes CONTRACTOR’s officers, agents, and employees acting on CONTRACTOR’s behalf in the performance of this Agreement.
15.05. Disputes. CONTRACTOR shall continue to perform under this Agreement during any dispute.
Contractor and the CITY hereby agree to make good faith efforts to resolve disputes as quickly as possible. In the event any dispute arising from or related to this Agreement results in litigation or arbitration, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, attorney fees, expenses for expert witnesses (whether or not called to testify), expenses for accountants or appraisers (whether or not called to testify), and other related expenses. Recovery of these expenses shall be as additional costs awarded to the prevailing party, and shall not require initiation of a separate legal proceeding.
15.06. Assignment and Subcontracting. The CONTRACTOR shall not assign, sell, or otherwise transfer its interest or obligations in this Agreement without the prior written consent of the City. None of the services covered by this Agreement shall be subcontracted without the prior written approval of the City. Notwithstanding any such subcontract, CONTRACTOR shall continue to be liable for the performance of all requirements of this Agreement.
DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 PGCC 1-19-2022
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15.07. Successors and Assigns. This Agreement and the rights, privileges, duties, and obligations of the City and CONTRACTOR under this Agreement, to the extent assignable or delegable, shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, and heirs.
15.08. Compliance with Applicable Law. The parties shall comply with all applicable federal, state, and local laws and regulations in performing this Agreement.
15.09. Headings. The headings are for convenience only and shall not be used to interpret the terms of this Agreement.
15.10. Time is of the Essence. Time is of the essence in each and all of the provisions of this Agreement.
15.11. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of California.
15.12. Non-exclusive Agreement. This Agreement is non-exclusive and both City and CONTRACTOR expressly reserve the right to contract with other entities for the same or similar services.
15.13. Construction of Agreement. The City and CONTRACTOR agree that each party has fully participated in the review and revision of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendment to this Agreement.
15.14. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
15.15. Authority. Any individual executing this Agreement on behalf of the City or the CONTRACTOR represents and warrants hereby that he or she has the requisite authority to enter into this Agreement on behalf of such party and bind the party to the terms and conditions of this Agreement.
15.16. Integration. This Agreement, including the exhibits any documents incorporated by reference, represent the entire Agreement between the City and the CONTRACTOR with respect to the subject matter of this Agreement and shall supersede all prior negotiations, representations, or agreements, either written or oral, between the City and the CONTRACTOR as of the effective date of this Agreement, which is the date that the City signs the Agreement.
15.17. Interpretation of Conflicting Provisions. In the event of any conflict or inconsistency between the provisions of this Agreement and the Provisions of any exhibit or other attachment to this Agreement, the provisions of this Agreement shall prevail and control.
15.18 Severability. If any of the provisions contained in the Contract are held illegal, invalid, or unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. Limitations of liability and indemnities shall survive termination of the Contract for any cause. If a part of this Contract is valid, all valid parts that are severable from the invalid part remain in effect. If a part of this Contract is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
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IN WITNESS WHEREOF, City and CONTRACTOR have executed this Agreement as of the day and year written below.
CITY OF PACIFIC GROVE CONTRACTOR
By:
Ben Harvey, City Manager Best Best & Krieger
Date:
By: Scott Campbell, Partner*
By:
Department Head
Date:
Date:
By:
Approved as to Form
By:
David C. Laredo, City Attorney
Date:
Date:
Approved as to Fiscal Provisions1
By:
Finance
Date:
Approved as to Liability Provisions2
By:
Risk Management
Date:
City Agreement Number: ______________________________.
*INSTRUCTIONS: If CONTRACTOR is a corporation, including limited liability and non-profit corporations, the full legal name of the corporation shall be set forth above together with the signatures of two specified officers. If CONTRACTOR is a partnership, the name of the partnership shall be set forth above together with the signature of a partner who has authority to execute this Agreement on behalf of the partnership. If CONTRACTOR is contracting in an individual capacity, the individual shall set forth the name of the business, if any, and shall personally sign the Agreement. 1 Approval by Finance necessary only if financial questions or issues raised in Council approval of agreement. 2 Approval by Risk Management is necessary only if changes are made in paragraph 8 or 9.
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EXHIBIT A
SCOPE OF SERVICES AND FEES
Best Best and Krieger, LLP, shall provide as needed legal services related to development/commercial real estate and California Environmental Quality Act.
The rate for the work shall be:
Partners/Of Counsel $395/hour
Associates $325/hour
Paralegals $200/hour
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AMENDMENT #1
AGREEMENT FOR PROFESSIONAL SERVICES WITH BEST BEST & KRIEGER LLP WHEREAS, the City of Pacific Grove (“City”) and BEST BEST & KRIEGER LLP (“Contractor”) entered into a Professional Services Agreement (“Agreement”) dated October 26, 2021; and
WHEREAS, the City and Contractor desire to amend certain terms of the Agreement; NOW, THEREFORE, the parties agree as follows:
A. The Agreement is amended as follows:
2. PAYMENTS BY CITY. City shall pay the CONTRACTOR in
accordance with the payment provisions set forth in Exhibit A, subject to the limitations set forth in this Agreement. The total amount payable by City to CONTRACTOR under this Agreement shall not exceed the sum of $39,500 $100,000.
B. All other terms of the Agreement remain the same.
Dated: ____________________
Dated: _____________________
Dated: _____________________
________________________________
Elizabeth Wagner Hull
Best Best & Krieger LLP
________________________________
Ben Harvey, City Manager
_________________________________
Bill Peake, Mayor
City of Pacific Grove
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CITY OF PACIFIC GROVE AGREEMENT FOR PROFESSIONAL SERVICES (Under $40,000)
This Professional Services Agreement (“Agreement”) is made by and between the City of Pacific Grove, a political subdivision of the State of California (hereinafter “City”) and Best Best & Krieger, LLP, (hereinafter “CONTRACTOR”).
In consideration of the mutual covenants and conditions set forth in this Agreement, the parties agree as follows:
1. SERVICES TO BE PROVIDED. The City hereby engages CONTRACTOR to perform, and CONTRACTOR hereby agrees to perform, the services described in Exhibit A in conformity with the terms of this Agreement. The services are generally described as follows: on call development related and CEQA legal services .
2. PAYMENTS BY CITY. City shall pay the CONTRACTOR in accordance with the payment provisions set forth in Exhibit A, subject to the limitations set forth in this Agreement. The total amount payable by City to CONTRACTOR under this Agreement shall not exceed the sum of $ 39,500.
3. TERM OF AGREEMENT. The term of this Agreement is from July 1, 2021 to July 1, 2022 unless sooner terminated pursuant to the terms of this Agreement. This Agreement is of no force or effect until signed by both CONTRACTOR and City and with City signing last, and CONTRACTOR may not commence work before City signs this Agreement.
4. ADDITIONAL PROVISIONS/EXHIBITS. The following attached exhibits are incorporated herein by reference and constitute a part of this Agreement:
Exhibit A: Scope of Services and Rates
Exhibit B: Waiver of Indemnity and Insurance provisions
5. PERFORMANCE STANDARDS.
5.01. CONTRACTOR warrants that CONTRACTOR and CONTRACTOR’s agents, employees, and subcontractors performing services under this Agreement are specially trained, experienced, competent, and appropriately licensed to perform the work and deliver the services required under this Agreement and are not employees of the City, or immediate family of an employee of the City.
5.02. CONTRACTOR, its agents, employees, and subcontractors shall perform all work in a safe and skillful manner and in compliance with all applicable laws and regulations. All work performed under this Agreement that is required by law to be performed or supervised by licensed personnel shall be performed in accordance with such licensing requirements.
5.03. CONTRACTOR shall furnish, at its own expense, all materials, equipment, and personnel necessary to carry out the terms of this Agreement, except as otherwise specified in this Agreement. CONTRACTOR shall not use City premises, property (including equipment, instruments, or supplies) or personnel for any purpose other than in the performance of its obligations under this Agreement.
6. PAYMENT CONDITIONS.
6.01. CONTRACTOR shall submit to the Contract Administrator an invoice on a form acceptable to City.
If not otherwise specified, the CONTRACTOR may submit such invoice monthly or at the completion of each phase of the project, as provided on page 16 of the proposal, but in any event, not later than 30 days after completion of services. The invoice shall set forth the amounts claimed by CONTRACTOR for the previous DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 DocuSign Envelope ID: 0D6A5BCE-829C-4075-9D5B-767E3EA25AD4 PGCC 1-19-2022
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period, together with an itemized basis for the amounts claimed, and such other information pertinent to the invoice as the City may require. The Contract Administrator or his or her designee shall certify the invoice, either in the requested amount or in such other amount as the City approves in conformity with this Agreement, and shall promptly submit such invoice to the City Auditor-Controller for payment. The City Auditor-Controller shall pay the amount certified within 30 days of receiving the certified invoice.
6.02. CONTRACTOR shall receive reimbursement for reasonable travel expenses.
7. TERMINATION.
7.01. During the term of this Agreement, the City may terminate the Agreement for any reason by giving written notice of termination to the CONTRACTOR at least thirty (30) days prior to the effective date of termination. Such notice shall set forth the effective date of termination. In the event of such termination, the amount payable under this Agreement shall be reduced in proportion to the services provided prior to the date of termination.
7.02. The City may cancel and terminate this Agreement for good cause effective immediately upon written notice to CONTRACTOR. “Good cause” includes the failure of CONTRACTOR to perform the required services at the time and in the manner provided under this Agreement. If City terminates this Agreement for good cause, the City may be relieved of the payment of any consideration to CONTRACTOR, and the City may proceed with the work in any manner which City deems proper. The cost to the City shall be deducted from any sum due the CONTRACTOR under this Agreement.
8. INDEMNIFICATION.
8.01. As respects all acts or omissions which do not arise directly out of the performance of professional services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, CONTRACTOR shall indemnify, defend, and hold harmless the City, its officers, agents, and employees, from and against any and all claims, liabilities, and losses whatsoever (including damages to property and injuries to or death of persons, court costs, and reasonable attorneys’ fees) occurring or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims, liabilities, and losses occurring or resulting to any person, firm, or corporation for damage, injury, or death arising out of or connected with the CONTRACTOR’s performance of this Agreement, unless such claims, liabilities, or losses arise out of the sole negligence or willful misconduct of the City. “CONTRACTOR’s performance” includes CONTRACTOR’s action or inaction and the action or inaction of CONTRACTOR’s officers, employees, agents and subcontractors.
8.02. Architects, Engineers Per Civil Code 2782.8 Where the services to be provided by CONTRACTOR under this Agreement are design professional services, as that term is defined under Civil Code Section 2782.8, CONTRACTOR agrees to indemnify, defend and hold harmless, the City, its officers, officials, employees and volunteers from any and all claims, demands, costs or liability that actually or allegedly arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of CONTRACTOR and its agents in the performance of services under this contract, but this indemnity does not apply to liability for damages for bodily injury, property damage or other loss, arising from the sole negligence, active negligence or willful misconduct by the City, its officers, official employees, and volunteers. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of the City, then CONTRACTOR’s indemnification and defense obligations shall be reduced in proportion to the established comparative liability of the City and shall not exceed the CONTRACTOR’s proportionate percentage of fault.
As respects all acts or omissions which do not arise directly out of the performance of design professional services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, CONTRACTOR agrees to indemnity, defend and hold harmless the City, its officers officials, DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 DocuSign Envelope ID: 0D6A5BCE-829C-4075-9D5B-767E3EA25AD4 PGCC 1-19-2022
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employees and volunteers for an against any claim, demands, losses, liability of any kind or nature arising out of or in connection with the CONTRACTOR's performance or failure to perform under the terms of this contract, excepting those which arise out of the active negligence, sole negligence or willful misconduct of the City, its officers, officials, employees and volunteers.
❑ Exemption/Modification (Justification attached; subject to approval).
9. INSURANCE.
9.01. Insurance Coverage Requirements: Without limiting CONTRACTOR’s duty to indemnify, CONTRACTOR shall maintain in effect throughout the term of this Agreement a policy or policies of insurance with the following minimum limits of liability:
Commercial general liability insurance, no less broad than Insurance Services Office (ISO) CG 00 01, including but not limited to premises and operations, including coverage for Bodily Injury and Property Damage, Personal Injury, Contractual Liability, Broadform Property Damage, Independent Contractors, Products and Completed Operations, with a minimum Limits: $1,000,000 per Occurrence; $2,000,000 General Aggregate; $2,000,000 Products/Completed Operations Aggregate. The required limits may be provided by a combination of General Liability Insurance and Commercial Excess or Umbrella Liability Insurance. If CONTRACTOR maintains higher limits than the specified minimum limits, City requires and shall be entitled to coverage for the higher limits maintained by CONTRACTOR.
❑ Exemption/Modification (Justification attached; subject to approval).
Business automobile liability insurance, covering all motor vehicles, including owned, leased, non-owned, and hired vehicles, used in providing services under this Agreement, with a combined single limit for Bodily Injury and Property Damage of not less than $1,000,000 per occurrence. ❑ Exemption/Modification (Justification attached; subject to approval).
Workers’ Compensation Insurance, if CONTRACTOR employs others in the performance of this Agreement, in accordance with California Labor Code section 3700 and with Employer’s Liability limits not less than $1,000,000 each person, $1,000,000 each accident and $1,000,000 each disease. ❑ Exemption/Modification (Justification attached; subject to approval).
Professional liability insurance, if required for the professional services being provided, (e.g., those persons authorized by a license to engage in a business or profession regulated by the California Business and Professions Code), in the amount of not less than $1,000,000 per claim and $2,000,000 in the aggregate, to cover liability for malpractice or errors or omissions made in the course of rendering professional services. If professional liability insurance is written on a “claims-made” basis rather than an occurrence basis, the retroactive date shall be no later than the commencement of the work. Coverage applicable to the work performed under this agreement shall be continued for three (3) years after completion of the work . Such continuation coverage may be provided by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the work under this agreement.
❑ Exemption/Modification (Justification attached; subject to approval).
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9.02. Other Insurance Requirements. All insurance required by this Agreement shall be with a company acceptable to the City and issued and executed by an admitted insurer authorized to transact Insurance business in the State of California. Unless otherwise specified by this Agreement, all such insurance shall be written on an occurrence basis, or, if the policy is not written on an occurrence basis, such policy with the coverage required herein shall continue in effect for a period of three years following the date CONTRACTOR completes its performance of services under this Agreement.
. CONTRACTOR shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, CONTRACTOR shall forthwith obtain and submit proof of substitute insurance. Should CONTRACTOR fail to immediately procure other insurance, as specified, to substitute for any canceled policy, the City may procure such insurance at CONTRACTOR’s sole cost and expense.
Commercial general liability and automobile liability policies shall provide an endorsement naming the City of Pacific Grove, its officers, agents, and employees as Additional Insureds with respect to liability arising out of the CONTRACTOR’S work, including ongoing and completed operations, and shall further provide that such insurance is primary insurance to any insurance or self-insurance maintained by the City and that the insurance of the Additional Insureds shall not be called upon to contribute to a loss covered by the CONTRACTOR’S insurance. The required endorsement form for Commercial General Liability Additional Insured is ISO Form CG 20 10 11-85 or CG 20 10 10 01 in tandem with CG 20 37 10 01 (2000). The required endorsement form for Automobile Additional Insured endorsement is ISO Form CA 20 48 02 99.
The general liability policy shall cover inter-insured suits and include a “separation of Insureds” or “severability” clause which treats each insured separately.
CONTRACTOR shall provide to City an endorsement that the insurer waives the right of subrogation against the City, its officers, officials, employees, agents and volunteers.
Prior to the execution of this Agreement by the City, CONTRACTOR shall file certificates of insurance with the City’s contract administrator and City’s Contracts/Purchasing Division, showing that the CONTRACTOR has in effect the insurance required by this Agreement. The CONTRACTOR shall file a new or amended certificate of insurance within five calendar days after any change is made in any insurance policy which would alter the information on the certificate then on file. Acceptance or approval of insurance shall in no way modify or change the indemnification clause in this Agreement, which shall continue in full force and effect.
CONTRACTOR shall at all times during the term of this Agreement maintain in force the insurance coverage required under this Agreement and shall send, without demand by City, annual certificates to City’s Contract Administrator and City’s Contracts/Purchasing Division. If the certificate is not received by the expiration date, City shall notify CONTRACTOR and CONTRACTOR shall have five calendar days to send in the certificate, evidencing no lapse in coverage during the interim. Failure by CONTRACTOR to maintain such insurance is a default of this Agreement which entitles City, at its sole discretion, to terminate this Agreement immediately.
10. RECORDS AND CONFIDENTIALITY.
10.01. Confidentiality. CONTRACTOR and its officers, employees, agents, and subcontractors shall comply with any and all federal, state, and local laws which provide for the confidentiality of records and other information. CONTRACTOR shall not disclose any confidential records or other confidential information received from the City or prepared in connection with the performance of this Agreement, unless City specifically permits CONTRACTOR to disclose such records or information. CONTRACTOR shall promptly transmit to DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 DocuSign Envelope ID: 0D6A5BCE-829C-4075-9D5B-767E3EA25AD4 PGCC 1-19-2022
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City any and all requests for disclosure of any such confidential records or information. CONTRACTOR shall not use any confidential information gained by CONTRACTOR in the performance of this Agreement except for the sole purpose of carrying out CONTRACTOR’s obligations under this Agreement.
10.02. City Records. When this Agreement expires or terminates, CONTRACTOR shall return to City any City records which CONTRACTOR used or received from City to perform services under this Agreement.
10.03. Maintenance of Records. CONTRACTOR shall prepare, maintain, and preserve all reports and records that may be required by federal, state, and City rules and regulations related to services performed under this Agreement. CONTRACTOR shall maintain such records for a period of at least three years after receipt of final payment under this Agreement. If any litigation, claim, negotiation, audit exception, or other action relating to this Agreement is pending at the end of the three year period, then CONTRACTOR shall retain said records until such action is resolved.
10.04. Access to and Audit of Records. The City shall have the right to examine, monitor and audit all records, documents, conditions, and activities of the CONTRACTOR and its subcontractors related to services provided under this Agreement. Pursuant to Government Code section 8546.7, if this Agreement involves the expenditure of public funds in excess of $10,000, the parties to this Agreement may be subject, at the request of the City or as part of any audit of the City, to the examination and audit of the State Auditor pertaining to matters connected with the performance of this Agreement for a period of three years after final payment under the Agreement.
10.05. Royalties and Inventions. City shall have a royalty-free, exclusive and irrevocable license to reproduce, publish, and use, and authorize others to do so, all original computer programs, writings, sound recordings, pictorial reproductions, drawings, and other works of similar nature produced in the course of or under this Agreement. CONTRACTOR shall not publish any such material without the prior written approval of City.
11. NON-DISCRIMINATION. During the performance of this Agreement, CONTRACTOR, and its subcontractors, shall not unlawfully discriminate against any person because of race, religious creed, color, sex, national origin, ancestry, physical disability, mental disability, medical condition, marital status, age (over 40), or sexual orientation, either in CONTRACTOR’s employment practices or in the furnishing of services to recipients. CONTRACTOR shall ensure that the evaluation and treatment of its employees and applicants for employment and all persons receiving and requesting services are free of such discrimination. CONTRACTOR and any subcontractor shall, in the performance of this Agreement, fully comply with all federal, state, and local laws and regulations which prohibit discrimination. The provision of services primarily or exclusively to such target population as may be designated in this Agreement shall not be deemed to be prohibited discrimination.
12. COMPLIANCE WITH TERMS OF STATE OR FEDERAL GRANT. If this Agreement has been or will be funded with monies received by the City pursuant to a contract with the state or federal government in which the City is the grantee, CONTRACTOR will comply with all the provisions of said contract, to the extent applicable to CONTRACTOR as a subgrantee under said contract, and said provisions shall be deemed a part of this Agreement, as though fully set forth herein. Upon request, City will deliver a copy of said contract to CONTRACTOR, at no cost to CONTRACTOR.
13. INDEPENDENT CONTRACTOR. In the performance of work, duties, and obligations under this Agreement, CONTRACTOR is at all times acting and performing as an independent contractor and not as an employee of the City. No offer or obligation of permanent employment with the City or particular City department or agency is intended in any manner, and CONTRACTOR shall not become entitled by virtue of this Agreement to receive from City any form of employee benefits including but not limited to sick leave, vacation, retirement benefits, workers’ compensation coverage, insurance or disability benefits. CONTRACTOR shall be solely liable DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 DocuSign Envelope ID: 0D6A5BCE-829C-4075-9D5B-767E3EA25AD4 PGCC 1-19-2022
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for and obligated to pay directly all applicable taxes, including federal and state income taxes and social security, arising out of CONTRACTOR’s performance of this Agreement. In connection therewith, CONTRACTOR shall defend, indemnify, and hold City harmless from any and all liability which City may incur because of CONTRACTOR’s failure to pay such taxes.
14. NOTICES. Notices required under this Agreement shall be delivered personally or by first-class, postage pre-paid mail to the City’s and CONTRACTOR’S contract administrators at the addresses listed below:
FOR CITY: FOR CONTRACTOR:
Ben Harvey, City Manager Scott Campbell
Best Best & Kriger LLP
300 Forest Avenue
Pacific Grove, CA 93950
(831) 648-
300 South Grand Ave.,
25th Floor
Los Angeles, CA 90071
Tel: (213) 617-8100
Fax: (213) 617-7480
15. MISCELLANEOUS PROVISIONS.
15.01. Conflict of Interest. CONTRACTOR represents that it presently has no interest and agrees not to acquire any interest during the term of this Agreement which would directly or indirectly conflict in any manner or to any degree with the full and complete performance of the professional services required to be rendered under this Agreement.
15.02. Amendment. This Agreement may be amended or modified only by an instrument in writing signed by the City and the CONTRACTOR.
15.03. Waiver. Any waiver of any terms and conditions of this Agreement must be in writing and signed by the City and the CONTRACTOR. A waiver of any of the terms and conditions of this Agreement shall not be construed as a waiver of any other terms or conditions in this Agreement.
15.04. Contractor. The term “CONTRACTOR” as used in this Agreement includes CONTRACTOR’s officers, agents, and employees acting on CONTRACTOR’s behalf in the performance of this Agreement.
15.05. Disputes. CONTRACTOR shall continue to perform under this Agreement during any dispute.
Contractor and the CITY hereby agree to make good faith efforts to resolve disputes as quickly as possible. In the event any dispute arising from or related to this Agreement results in litigation or arbitration, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, attorney fees, expenses for expert witnesses (whether or not called to testify), expenses for accountants or appraisers (whether or not called to testify), and other related expenses. Recovery of these expenses shall be as additional costs awarded to the prevailing party, and shall not require initiation of a separate legal proceeding.
15.06. Assignment and Subcontracting. The CONTRACTOR shall not assign, sell, or otherwise transfer its interest or obligations in this Agreement without the prior written consent of the City. None of the services covered by this Agreement shall be subcontracted without the prior written approval of the City. Notwithstanding any such subcontract, CONTRACTOR shall continue to be liable for the performance of all requirements of this Agreement.
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15.07. Successors and Assigns. This Agreement and the rights, privileges, duties, and obligations of the City and CONTRACTOR under this Agreement, to the extent assignable or delegable, shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, and heirs.
15.08. Compliance with Applicable Law. The parties shall comply with all applicable federal, state, and local laws and regulations in performing this Agreement.
15.09. Headings. The headings are for convenience only and shall not be used to interpret the terms of this Agreement.
15.10. Time is of the Essence. Time is of the essence in each and all of the provisions of this Agreement.
15.11. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of California.
15.12. Non-exclusive Agreement. This Agreement is non-exclusive and both City and CONTRACTOR expressly reserve the right to contract with other entities for the same or similar services.
15.13. Construction of Agreement. The City and CONTRACTOR agree that each party has fully participated in the review and revision of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendment to this Agreement.
15.14. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
15.15. Authority. Any individual executing this Agreement on behalf of the City or the CONTRACTOR represents and warrants hereby that he or she has the requisite authority to enter into this Agreement on behalf of such party and bind the party to the terms and conditions of this Agreement.
15.16. Integration. This Agreement, including the exhibits any documents incorporated by reference, represent the entire Agreement between the City and the CONTRACTOR with respect to the subject matter of this Agreement and shall supersede all prior negotiations, representations, or agreements, either written or oral, between the City and the CONTRACTOR as of the effective date of this Agreement, which is the date that the City signs the Agreement.
15.17. Interpretation of Conflicting Provisions. In the event of any conflict or inconsistency between the provisions of this Agreement and the Provisions of any exhibit or other attachment to this Agreement, the provisions of this Agreement shall prevail and control.
15.18 Severability. If any of the provisions contained in the Contract are held illegal, invalid, or unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. Limitations of liability and indemnities shall survive termination of the Contract for any cause. If a part of this Contract is valid, all valid parts that are severable from the invalid part remain in effect. If a part of this Contract is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
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IN WITNESS WHEREOF, City and CONTRACTOR have executed this Agreement as of the day and year written below.
CITY OF PACIFIC GROVE CONTRACTOR
By:
Ben Harvey, City Manager Best Best & Krieger
Date:
By: Scott Campbell, Partner*
By:
Department Head
Date:
Date:
By:
Approved as to Form
By:
David C. Laredo, City Attorney
Date:
Date:
Approved as to Fiscal Provisions1
By:
Finance
Date:
Approved as to Liability Provisions2
By:
Risk Management
Date:
City Agreement Number: ______________________________.
*INSTRUCTIONS: If CONTRACTOR is a corporation, including limited liability and non-profit corporations, the full legal name of the corporation shall be set forth above together with the signatures of two specified officers. If CONTRACTOR is a partnership, the name of the partnership shall be set forth above together with the signature of a partner who has authority to execute this Agreement on behalf of the partnership. If CONTRACTOR is contracting in an individual capacity, the individual shall set forth the name of the business, if any, and shall personally sign the Agreement. 1 Approval by Finance necessary only if financial questions or issues raised in Council approval of agreement. 2 Approval by Risk Management is necessary only if changes are made in paragraph 8 or 9.
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EXHIBIT A
SCOPE OF SERVICES AND FEES
Best Best and Krieger, LLP, shall provide as needed legal services related to development/commercial real estate and California Environmental Quality Act.
The rate for the work shall be:
Partners/Of Counsel $395/hour
Associates $325/hour
Paralegals $200/hour
DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 DocuSign Envelope ID: 0D6A5BCE-829C-4075-9D5B-767E3EA25AD4 PGCC 1-19-2022
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11 of 11 Updated 5/7/21
DocuSign Envelope ID: 84374E42-F0D0-4438-9406-8713A352BD48 DocuSign Envelope ID: 0D6A5BCE-829C-4075-9D5B-767E3EA25AD4 PGCC 1-19-2022
PGCC 1-19-2022
PGCC 1-19-2022
PGCC 1-19-2022
PGCC 1-19-2022