Palm Desert City Council
November 16, 2023

Contract No.
4 Revised 10-2023
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regulations in any manner affecting the performance of the Project or the Services and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.

3.2.10.1 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement and shall not violate any such law at any time during the term of the Agreement.

3.2.10.2 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer, and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, physical disability, ancestry, sex, age, marital status, gender, gender identity, gender expression, sexual orientation, reproductive health decision making, veteran or military status, or any other consideration made unlawful by federal, state, or local laws. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.2.10.3 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.

3.2.11 Insurance.

3.2.11.1 Minimum Requirements. Without limiting Consultant’s indemnification of City, and prior to commencement of the Services, Consultant shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to City. (A) General Liability Insurance. Consultant 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. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(B) Automobile Liability Insurance. Consultant 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 Consultant 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. The City’s Risk Manger may modify this requirement if it is determined that Consultant will not be utilizing a vehicle in the performance of his/her duties under this Agreement.

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(C) Professional Liability (Errors & Omissions) Insurance.

Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. (D) Workers’ Compensation Insurance. Consultant shall
maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, its officers, agents, employees, volunteers, and representatives.
(E) Umbrella or Excess Liability Insurance. Consultant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
(1) A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have
applied proves to be uncollectible in whole or in part for any reason;
(2) Pay on behalf of wording as opposed to reimbursement; (3) Concurrency of effective dates with primary policies; and (4) Policies shall “follow form” to the underlying primary policies.
(5) Insureds under primary policies shall also be insureds under the umbrella or excess policies.

If coverage is maintained on a claims-made basis, Consultant shall maintain such coverage for an additional period of three (3) years following termination of the Agreement.

3.2.11.2 Other Provisions or Requirements.
(A) Proof of Insurance. Consultant 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.
(B) Duration of Coverage. Consultant 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 Services hereunder by Consultant, his/her agents, representatives, employees or subconsultants.

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(C) Primary/Non-Contributing. Coverage provided by
Consultant 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 non-contributory basis for the benefit of City before the City’s own insurance or selfinsurance shall be called upon to protect it as a named insured. (D) City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary, and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may terminate this Agreement.
(E) 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.
(F) Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City, its elected or appointed officers, agents, officials, employees, volunteers, and representatives or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its elected or appointed officers, agents, officials, employees, volunteers and representatives and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(G) Enforcement of Contract Provisions (non estoppel).

Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(H) 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 Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (I) Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide 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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(J) Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability and cyber liability, policies shall provide or be endorsed to provide that the City and its officers, officials, employees, agents, volunteers and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement, under such policies. This provision shall also apply to any excess/umbrella liability policies.
(K) 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.
(L) Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’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. (M) Pass Through Clause. Consultant 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 Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant 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. Consultant agrees that upon request, all agreements with subconsultants, subcontractors, and others engaged in the Project will be submitted to City for review.
(N) City’s Right to Revise Specifications. The City and the City’s Risk Manager reserve the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in additional cost to the Consultant, the City and Consultant may renegotiate Consultant’s compensation. If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice. (O) 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. (P) Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(Q) Additional Insurance. Consultant 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 Services.

3.2.12 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C.

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§ 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant must comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations, and policies of this Section.

3.3 Fees and Payments.

3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Fifty-Five Thousand Dollars And No Cents ($55,000) for the term of December 1, 2023 to November 30, 2024 and Forty Thousand And No Cents ($40,000) for any extension thereafter, without written approval of the City Council or City Manager, as applicable.

3.3.2 Payment of Compensation. Consultant shall submit to City monthly invoices which provide a detailed description of the Services and hours rendered by Consultant.

City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Consultant shall submit its final invoice to City within thirty (30) days from the last date of provided Services or termination of this Agreement and failure by the Consultant to submit a timely invoice may constitute a waiver of its right to final payment. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City or included in Exhibit "C" of this Agreement.

3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.

3.4 Labor Code Requirements.

3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties

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to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, agents, volunteers and representatives, free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of Services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, agents, volunteers and representatives free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.

3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Services.

3.5 Accounting Records.

3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.6 General Provisions.

3.6.1 Termination of Agreement.

3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under

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this Agreement.

3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

3.6.1.3 Early Termination. Notwithstanding any provision herein to the contrary, if for any fiscal year of this Agreement the City Council fails to appropriate or allocate funds for future payment under the Agreement after exercising reasonable efforts to do so, the City may upon seven (7) days’ written notice, order work on the Project to cease. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation.

3.6.1.4 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Consultant: The Retail Coach
86 Clark Blvd
Tupelo, MS 38804
ATTN: CHARLES PARKER, PROJECT DIRECTOR
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
ATTN: ERIC CEJA, DIRECTOR OF ECONOMIC

DEVELOPMENT
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.6.3 Ownership of Materials and Confidentiality.

3.6.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required

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by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.

3.6.3.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents, and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment, or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.

3.6.3.4 Indemnification – Documents and Data. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers, agents and representatives free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.

3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or

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the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information.

Consultant shall indemnify, defend, and hold harmless the City, and its officers, directors, employees, agents, volunteers and representatives from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.

3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.

3.6.5 [Reserved]

3.6.6 Indemnification.

3.6.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, agents, and representatives free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subconsultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, volunteers, or representatives.

3.6.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

3.6.7 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements.

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3.6.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County.

3.6.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.6.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.6.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.

3.6.12 Assignment; Subcontracting. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City.

Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.

3.6.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, volunteers, and representatives except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.6.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.6.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.6.16 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.

3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration

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contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.6.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.6.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.6.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination. [SIGNATURES ON NEXT PAGE]

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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT

BY AND BETWEEN THE CITY OF PALM DESERT

AND THE RETAIL COACH, LLC
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.

CITY OF PALM DESERT
By:

L. Todd Hileman
City Manager
Attest:

By:

Anthony J. Mejia
City Clerk
Approved as to form:

By:

Best Best & Krieger LLP
City Attorney

THE RETAIL COACH, A LIMITED LIABILITY

COMPANY
By:

Its: President
Printed Name: Aaron Farmer
QC:

Insurance:

Initial Review
Final Approval

Contract No.

Exhibit “A” Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT “A”

SCOPE OF SERVICES

Contract No.

Exhibit “A” Revised 07-2023
BBK 72500.00001\32374915.1

Contract No.

Exhibit “A” Revised 07-2023
BBK 72500.00001\32374915.1

Contract No.

Exhibit “A” Revised 07-2023
BBK 72500.00001\32374915.1

Contract No.

Exhibit “B” Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT "B"

SCHEDULE OF SERVICES

Contract No.

Exhibit “C” Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT "C"

COMPENSATION

City of Palm Desert
Economic Development
Eric Ceja, Director
73-510 Fred Waring Drive, Palm Desert, CA 92260

PROPOSAL DOCUMENT REPORT
RFP No. 2023-RFP-211
Retail Market Analysis and Recruitment Services
RESPONSE DEADLINE: September 11, 2023 at 12:00 pm
Report Generated: Wednesday, September 27, 2023
The Retail Coach Proposal

CONTACT INFORMATION
Company:

The Retail Coach
Email:
[email protected]
Contact:

Nancy Herbert
Address:
86 Clark Blvd Tupelo, MS 38804
Phone:

N/A
Website:
theretailcoach.net
Submission Date:

Sep 7, 2023 9:46 AM

PROPOSAL DOCUMENT REPORT
RFP No. 2023-RFP-211 Retail Market Analysis and Recruitment Services PROPOSAL DOCUMENT REPORT Request For Proposal - Retail Market Analysis and Recruitment Services Page 2

ADDENDA CONFIRMATION
Addendum #1 Confirmed Sep 7, 2023 9:46 AM by Nancy Herbert

QUESTIONNAIRE

1. Proposal (WITHOUT COST)* Proposals shall be concise, well organized and demonstrate qualifications and applicable experience. Proposals shall be organized and include page numbers for all pages in the proposal. The proposal shall be uploaded here, in the following order and shall include:

A. Cover Letter

1. This letter should briefly introduce the firm, summarize the firm’s general qualifications, include an executive summary of the specific approach which will be used to deliver the work scope; and identify the individual(s) name, address and phone number authorized to negotiate Agreement terms and compensation. NOTE: The City is requiring proposers to have a minimum 5-years of experience with market analysis for municipal governments.

B. Experience and Technical Competence

1. Background: Provide history of the firm’s consulting experience which specifically addresses the individual or firm’s experience with similar Service as described in this RFP.

2. References: The proposal shall include a list of three (3) recently completed projects that are similar in scope and function to this RFP. Provide a description of the project, client name, and the name, title, and telephone number of the primary contact person.

C. Firm Staffing and Key Personnel

1. Staffing: Provide the number of staff to be assigned to perform the Services and the names/discipline/job title of each as well as your firm’s capacity to provide additional personnel as needed.

PROPOSAL DOCUMENT REPORT
RFP No. 2023-RFP-211 Retail Market Analysis and Recruitment Services PROPOSAL DOCUMENT REPORT Request For Proposal - Retail Market Analysis and Recruitment Services Page 3

2. Key Personnel: Identify key persons that will be principally responsible for working with the City. Indicate the role and responsibility of each individual.

3. Team Organization: Describe proposed team organization, including identification and responsibilities of key personnel.

4. Subcontractors: The Proposer shall identify functions that are likely to be subcontracted and identify the subcontractor that is anticipated to perform each function.

D. Proposed Method to Accomplish the Work

1. Describe the technical and management approach to providing the Services to the City. Proposer should take into account the scope of the Services, and general functions required. Include a draft first year schedule of tasks, milestones, and deliverables that will provide for timely provision of the Services. In reviewing the scope of Services and goals described herein, the Proposer may identify additional necessary tasks and is invited to bring these to the City’s attention within the discussion of its proposed method to accomplish the work.

TRC_Proposal_-_PalmDesertCA_RFP_-_Sept2023.pdf

2. Fee Proposal* Please provide a lump-sum, not-to-exceed fee proposal for the scope of Services. The fee proposal shall include hourly rates for all personnel for “Additional Work” (as such term is defined in the proposed Agreement attached herein). TRC_Proposal_-_PalmDesertCA_RFP_-_Fee_-_Sept2023_.pdf 3. Non-Collusion Declaration* The undersigned declares: I am an authorized representative of my company, the party making the foregoing Bid, to certify the following. The Bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The Bid is genuine and not collusive or sham. The Bidder has not directly or indirectly induced or solicited any other Bidder to put in a false or sham bid. The Bidder has not directly or indirectly colluded, conspired, connived, or agreed with any Bidder or anyone else to put in a sham bid, or to refrain from bidding. The Bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the Bid Price of the Bidder or any other Bidder, or to fix any overhead, profit, or cost

PROPOSAL DOCUMENT REPORT
RFP No. 2023-RFP-211 Retail Market Analysis and Recruitment Services PROPOSAL DOCUMENT REPORT Request For Proposal - Retail Market Analysis and Recruitment Services Page 4 element of the Bid Price, or of that of any other Bidder. All statements contained in the Bid are true. The Bidder has not, directly or indirectly, submitted his or her Bid Price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose. Any person executing this declaration on behalf of a Bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the Bidder. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Confirmed

4. SAM.gov* Please enter your legal entity name for SAM.gov verification. The Retail Coach, LLC Click to Verify Value will be copied to clipboard5. Type of Business* Other 6. Litigation* Provide litigation history for any claims filed by your firm or against your firm related to the provision of Services in the last five (5) years (or type "N/A").

N/A

7. Changes to Agreement* The City standard professional services agreement contract is included as an attachment herein. The Proposer shall identify any objections to and/or request changes to the standard contract language in this section of the proposal (or type "N/A"). If you are

PROPOSAL DOCUMENT REPORT
RFP No. 2023-RFP-211 Retail Market Analysis and Recruitment Services PROPOSAL DOCUMENT REPORT Request For Proposal - Retail Market Analysis and Recruitment Services Page 5 identifying changes here ALSO upload a copy of the redlined Language/Agreement with your Proposal. Changes requested may affect theCity's decision to enter into an Agreement. N/A 8. No Deviations from the RFP* In submitting a proposal in response to this RFP, Proposer is certifying that it takes no exceptions to this RFP including, but not limited to, the Agreement. If any exceptions are taken, such exceptions must be clearly noted here, and may be reason for rejection of the proposal. As such, Proposer is directed to carefully review the proposed Agreement and, in particular, the insurance and indemnification provisions therein (or type "N/A").

N/A

9. Project Team Resumes* Submit resumes of all key personnel/support staff that will produce work product for the Services. Describe their qualifications, education, and professional licensing. TRC_Proposal_-_PalmDesertCA_RFP_-_Staff_-_Sept2023_.pdf

10. List the Signatory(s) Authorized to Sign and Bind an Agreement.* (If two (2) signatures are required, include the following information for both signatories) A. Full Name B. Title C. Physical Business Address D. Email Address E. Phone Number Aaron Farmer

PROPOSAL DOCUMENT REPORT
RFP No. 2023-RFP-211 Retail Market Analysis and Recruitment Services PROPOSAL DOCUMENT REPORT Request For Proposal - Retail Market Analysis and Recruitment Services Page 6 President 86 Clark Blvd, Tupelo, MS 38804 [email protected] 11. Certification of Proposal* The undersigned hereby submits its proposal and, by doing so, agrees to furnish services in accordance with the Request for Proposal (RFP), and to be bound by the terms and conditions of the RFP. Confirmed

TheRetailCoach.net | Dallas, TX • Austin, TX • Tupelo, MS | (800) 851-0962 Submitted by:

City of Palm Desert, California
Proposal for:

Recruitment Services
Retail Market Analysis +
2023 - RFP - 211
SEPTEMBER 2023

Proposal: Retail Market Analysis + Recruitment Services 2

COVER LETTER
Sincerely,
additional questions.
to reach out to myself or Charles ([email protected]; or cell 662-2231-9078) should you have any attract new businesses to Palm Desert and to best position the staff for long-term success. Please feel free We appreciate the City's consideration, and look forward to potentially entering a successful partnership to service and expertise. This proposal and pricing is valid for 180 days. work or to provide a first-class experience for the City of Palm Desert with an unparalleled level of customer country. Our firm's current workload will have no negative impact on the team's ability to immediately begin leading successful recruitment assignments and designing/executing retail training programs across the as the main point of contact for the duration of any agreement. Charles is an experienced Project Director, Charles Parker, one of our national Project Directors, will be your project lead and can be available as needed recruitment strategy of desired brands and concepts to the Palm Desert market. T inventory in Palm Desert, a collaborative strategy with local brokers and stakeholders, and an aggressive local/regional retail markets and trade areas, a review of the existing and potential commercial real estate the City with achieving its retail development goals. Our approach includes a comprehensive look at the and - based on our experience and familiarity with the Coachella Valley - we are confident we can assist We have addressed each service outlined in the RFP in a comprehensive manner in the following proposal, of our clients.

Our focus on tangible retail successes have resulted in ongoing, multi-year relationships with more than 90% support that is uniquely tailored to your community's need with our level of expertise and regional experience. for retail recruitment and development success. No other consulting firm offers this level of comprehensive determines retail opportunities, and develops customized strategies that best position our client communities As the nation's premier retail recruitment partner, our team of experts provides cutting edge market data, experience and regional knowledge to this project.
around the Southern California region, and within the Coachella Valley area. Our firm brings unmatched will find numerous examples highlighting a strong track record of success in communities across the country, expertise, relationships, and manpower needed to grow your City's retail base. In the following proposal, you twenty-three years of experience. Having completed work in more than 650 communities, our firm offers the Founded in 2000 and located at 86 Clark Blvd, Tupelo, MS 38804, our firm brings a national perspective and market analysis and recruitment services.

The Retail Coach, LLC is pleased to present the following proposal in response to the City's request for retail Proposal for Retail Market Analysis + Recruitment Services Tupelo, MS 38804
PO Box 7272
[email protected]
662.231.0608
President| The Retail Coach
Aaron Farmer
Si
Response for 2023-RFP-211
September 6, 2023
Palm Desert, CA 92260
73510 Fred Waring Drive
Economic Development Department
City of Palm Desert
ncerely,
er

Proposal: Retail Market Analysis + Recruitment Services 3 resulting impacts.

The most important aspect of any Retail Market Analysis is its ultimate application and residents by bringing in new retail, restaurant, entertainment, and service options. partnership and to capture sales tax leakage and further improve quality of life for Market Analysis + Recruitment Strategy, but to continue assisting the City via long-term Our goal is not only to aid The City of Palm Desert in preparing and executing a Retail Retail Market Analysis for the City of Palm Desert, California.

The Retail Coach is submitting this proposal for a
Our approach has always been action-oriented to ensure that market ORFDOVWDNHKROGHUVDQGSXEOLFRɝFLDOVLVDFULWLFDOFRPSRQHQW reports are not placed on a shelf to collect dust. Working with all project team members, LQZKLFK7KH5HWDLO&RDFKLV
experienced and well-equipped to execute.
• Research and analyze the Palm
gaps and growth opportunities.

Desert retail market to identify retail
• Determine Palm Desert's unique,
relationship with other industries.
viable retail market potential & its
• Identify key retail, restaurant, and
that align with the City's vision.
entertainment concepts & targets
• Proactively recruit new businesses to
dedication to communication
Palm Desert with transparency and
• Provide feedback on retail expansion,
selection process.
market trends, and the retial site
•
retial recruitment training
development initiatives, including
provide coaching for retail economic
$FWDVDQH[WHQVLRQRI&LW\VWD΍WR
• Represent, prepare, and assist the
industry events.

City of Palm Desert at ICSC and other
Goals & Objectives:

Retail Recruitment
Executive Summary:

PROJECT UNDERSTANDING + PROPOSED APPROACH

Proposal: Retail Market Analysis + Recruitment Services 4 in the Last 5 Years
New Retail Recruited
More Than 6 Million SF of
McKinney, TX Lancaster, CA Lancaster, CA & Pella, IA
Laguna Niguel, CA Orange County, CA

RECENT RECRUITMENT SUCCESSES
Our proven Retail:360® Process has been instrumental in recruiting new retailers and developers to our client communities.

PLUS HUNDREDS MORE THROUGHOUT THE COUNTRY
EXPERIENCE + TECHNICAL COMPETENCE

Proposal: Retail Market Analysis + Recruitment Services 5 :HDUHWKHQDWLRQ
VOHDGLQJUHWDLOUHFUXLWPHQWPDUNHWDQDO\VLV
organizations, and development firms.
retail recruitment partner for municipalities, economic development For more than 20 years, The Retail Coach has been the premier national DQGGHYHORSPHQWȴUP2XU
approach combines strategy, technology, and creative marketing to execute high-impact retail recruitment strategies for local governments, chambers of commerce, and economic development simple
Having worked more than 650 assignments in more than 40 states, our recruitment approach is organizations.
- do what you say you are going to do, execute at the highest level possible, and constantly communicate findings and results to our clients. This approach has proven successful, leading to multiple assignments with more than 90% of our clients.

We Recruit Retail.
past 5 years.
communities in the
in sales tax for our client
more than $600 Million
Our work has generated

GENERATED

IN NEW SALES TAX
$600 Million
contract period.
us after the initial
to continue working with
90% of our clients choose

REPEAT CLIENT RATE
90%
past 5 years.
communities in the
of new retail to client
than 6 million square feet
We have recruited more

RETAIL RECRUITED

SQUARE FEET OF NEW
6 Million +

PROVEN SUCCESS FOR CLIENT COMMUNITIES
EXPERIENCE + TECHNICAL COMPETENCE

Proposal: Retail Market Analysis + Recruitment Services 6 prospective markets to consider.
brokers will often look to our client list or ask our team for PDUNHWVZHDUHRIWHQRQHRIWKHȴUVWWRNQRZDQGUHWDLOHUV communities. When brands begin planning to expand into new These relationships create unique opportunities for our client national and regional brands.
current on retail trends and deepen our relationships with Our work throughout the country allows our team to stay National Expertise. Local Focus.
40 Served
Communities
650+
40 states.

Communities Across
More than 650 Client
We Have Served
90%



























  


 





Rate
Repeat Client
Worked In
States We've
EXPERIENCE + TECHNICAL COMPETENCE

Proposal: Retail Market Analysis + Recruitment Services 7 References
o. 951-487-7330
[email protected]
City of San Jacinto, California
Economic Development & Special Projects Administrator
Tara Magner
what we've gotten from the other firms we've worked with. We already highly recommend them.” retail consultants and the level of expertise and support from The Retail Coach team has far exceeded doors with retailers and developers that we weren't able to reach before. We have worked with other “...The Retail Coach [have] proven themselves as a great partner for the City and helped open many o. 951-461-6003
[email protected]
City of Murrieta, California
Deputy Director of Economic Development
Scott Agajanian
for years. They are also very responsive and help us get the data we need quickly." extension of our team and have helped us land retailers that we've been trying to get to the market sell our market to retailers and helps supplement our economic development team. They truly are an “The Retail Coach is the perfect solution for our needs. They provide high-quality data that helps us Other Recent Regional Experience:

Auburn, WA
Beaumont, CA
Bakersfield, CA
Bennett, CO
Coachella, CA
Canon City, CO
Corona, CA
Farmersville, CA
Firestone, CO
Gilroy, CA
Galt, CA
Gypsum, CO
Herriman City, UT
Indio, CA
Laguna Niguel, CA
Lakeport, CA
Naples City, UT
Pasco, WA
o. 469-534-2719
[email protected]
Terrell Economic Development Corporation, Texas
President
Ray Dunlap
the follow-up.”
responsive to all of my needs. I appreciate how they set up retailer appointments for me, and help with becomes harder to get your phone calls returned. Not so with The Retail Coach team, who is always “It is very refreshing to work with The Retail Coach. With some consultants, once you have paid, it EXPERIENCE + TECHNICAL COMPETENCE

Proposal: Retail Market Analysis + Recruitment Services 8 and will be the primary contact for your project.
'RZQWRZQ 3URJUDPV +H LV ORFDWHG LQ RXU 'DOODV RɝFH Coast, in addition to the Retail Recruitment Training and Charles oversees The Retail Coach projects on the West

PROJECT LEAD LEADERSHIP & PROJECT STRATEGY
Team Organization
for our clients.
analyses, recruitment strategies, and development plans project for The Retail Coach. This includes in-depth market experience, Kelly and Aaron play an integral role in every With more than 50 combined years of retail development
retailer feedback.
including the site submission process and capturing
and developers. They execute our recruitment process,
national and regional retailers, brokers, site selectors, Cary and Caroline manage our relationships with
Charles Parker
Project Director
Kelly Cofer
Founder & CEO
Aaron Farmer
President

RETAILER RECRUITMENT
Cary Everitt
Recruitment Specialist
Caroline Harrelson
Strategy Director
market reports, data sets, and assists with GIS mapping. the latest retail trade area data and prepares our clients' pinpoint true opportunity in retail markets. He provides Matthew uses cutting-edge, GPS-based market data to

DATA & MARKET RESEARCH
Director of Data/Research
Matthew Lautensack
and graphic design support.
and contract needs as well as marketing, promotional,
Nancy supports all projects by managing client invoicing Director of Finance
Nancy Herbert

ADMINISTRATIVE SUPPORT
FIRM STAFFING + KEY PERSONNEL
• In addition to this highlighted team, The
Staffing Notes + Capabilities:

DVQHHGHGZLWKDGGLWLRQDOLQKRXVHVXSSRUWVWD΍
supplmentary project support and management
Retail Coach maintains the ability to provide
•
resources.
without the need of any subcontractor or outisde
to execute the proposed scope of service,
municipalites, The Retail Coach is fully equipped
a sole focus on retail recruitment services for
$VWKHQDWLRQ
VSUHPLHUFRQVXOWLQJȴUPZLWK

Proposal: Retail Market Analysis + Recruitment Services 9 Charles Parker | Project Director
LQWKHȴHOGVRIHFRQRPLFUHVHDUFKGHYHORSPHQWDQGHQWUHSUHQHX primary point of contact for this project. He has over ten years of experience Charles oversees projects for The Retail Coach in nation wide, and will be the UVKLS
Kelly Cofer
and economic organizations.

Street America, and is a frequent speaker at conferences, municipal leagues, an active member of the International Council of Shopping Centers and Main and Master of Science degrees from Mississippi State University. Charles is The McKinney, Texas native earned his Master of Business Administration of tourism and outdoor recreation on municipalities.

Mississippi State University where he focused on economic impacts analyses Prior to joining The Retail Coach, Charles served as a leading Researcher at multiple IEDC Basic Economic Development Courses across the country. the MASC Retail Recruitment Training Program as well as annual instructor at Grill, Popeye’s, Sonic, and Publix. Additionally, Charles is the lead instructor of brands including Hobby Lobby, Marshall’s, Five Below, Planet Fitness, Eggs Up and his work in client communities has led to the recruitment of numerous | Founder & CEO
+HKDVHDUQHGWKHSUHVWLJLRXV&HUWLȴHG&RPPHUFLDOΖQYHVWPHQW0H cities throughout the United States.
development for leading national retailers and restaurants in more than 150 selection, advisory and leasing services, and property brokerage and Kelly’s professional background encompasses market research and site all aspects of retail real estate and economic development.

C. Kelly Cofer leads The Retail Coach with more than 30 years of experience in PEHU
Aaron Farmer
A&M University in College Station.

University of Oklahoma. Kelly holds a Bachelor of Science degree from Texas Estate Institute and attended the Economic Development Institute at the (CCIM) designation from the Chicago-based Commercial Investment Real | President
speaker for industry organizations throughout the country. determination to the actual recruitment of retailers. Aaron is a sought after His expertise touches each step of a project from the initial trade area Franchises (NAASF).

Supply, Adidas, Concentra and the National American Association of Subway leading retailers and restaurants including FedEx, Kinkos, Sally Beauty and retail development where he worked on projects for some of America’s Prior to joining The Retail Coach, Aaron was employed in marketing research research on retail and marketing trends.

Commerce, Aaron brings to The Retail Coach knowledge of the most current University in College Station and an MBA from Texas A&M University – With a degree in Marketing from The Mays Business School at Texas A&M Your Project Team

PROJECT LEAD
FIRM STAFFING + KEY PERSONNEL

Proposal: Retail Market Analysis + Recruitment Services 10 Cary Everitt | Retail Recruitment Specialist
C
activity and communicates feedback received throughout the process.

Cary works throughout projects to provide monthly updates on recruitment mind as brands look for new markets.
up with prospects to make sure that your community is staying at the top of best information possible when recruiting for client communities and follows He works with your Project Director to ensure that we are presenting the developers.
selectors, and key decision makers for retailers, restaurants, hotels, and Cary Everitt manages The Retail Coach’s relationships with retailers, site aroline Harrelson | Strategy Director
Ma
almost 10 years in upper administration and project management.

Caroline holds a Masters in Public Policy and Administration combined with development recruitment methods.
projects bringing a broader approach to The Retail Coach retail economic Services at Mississippi State University, she managed various international Prior to joining The Retail Coach she was the Director of International across the country.

The Retail Coach relationships with commercial real estate professionals Caroline Harrelson focuses on key strategic planning for clients and manages tthew Lautensack | Director of Research
WHQXUHDW7KH5HWDLO&RDFKKHKDVEURXJKWHɝFLHQF\WRWKHRSHU theory and technology integration to The Retail Coach team. During his New York native, Matthew Lautensack, brings a specialization in critical DWLRQDO
ZRUNȵRZV+HZDVDOVRWKHSULQFLSDOGHYHORSHURQDQXPEHURIQH processes, through automation, streamlining, and systematizing internal ZSURGXFWV
$SKLORVRSKHUDQGVHOIWDXJKWSURJUDPPHU0DWWKHZLVHɝFLHQWLQ Technology at a natural soap company based out of upstate New York.

Prior to joining The Retail Coach, Matthew was the Director of Information DQGVHUYLFHVZHDUHR΍HULQJWRGD\
XVHU
advertising and GIS.
experience, digital platform design, e-commerce, automation, digital Your Project Team
EXPERIENCE + QUALIFICATIONS

Proposal: Retail Market Analysis + Recruitment Services 11 What Makes Us Different?
No Conflicts of Interest.

No Brokerage.

No Development.

Right.

Done
Recruitment
We are Consultants. Not Brokers.
resistance to fill retail spaces.
don't take shortcuts or go with the path of least
client communities and their future growth. We
We only do what is in the best interest of our
We pride ourselves on being consultants, not brokers.

RECOGNIZED AS LEADING INDUSTRY EXPERTS AND FEATURED PRESENTERS FOR:

Our Team is Your Team
to learn and expand your network.
participate in the recruitment process, allowing you
extension of your team. Our clients are invited to
We take a partnership approach and become an
Full Transparency
progress.
monthly calls with your team to keep you updated on
in your custom retail recruitment dashboard and host
We track recruitment activity and prospect feedback
Experienced & Connected
drive retail growth in your community.
decades of experience and relationships to help
than 20 years ago and leverage more than two
We pioneered the retail recruitment industry more

Proposal: Retail Market Analysis + Recruitment Services 12 VHOHFWLRQSURFHVVHV:HZLOOXWLOL]HGDWDWRFRQȴUPWKHSULPDU\ Mobile Location Data has become a powerful tool for retail, restaurant, and entertainment concept site Custom Retail Trade Area Analysis + Mobile Location Data Retail Market Analysis
UHWDLOWUDGHDUHDEXWDOVRWRHYDOXDWH
VSHFLȴFORFDWLRQFRQVXPHUGUDZDQGSHUIRUPDQFH7KLVFDQDOVREHKHOSIXOIRUH[LVWLQJEXVLQHVVHVWRNQRZ 2XUGHPRJUDSKLFSURȴOHVLQFOXGHSRSXODWLRQDQGSURMHFWHGSRSXOD Demographic + Psychographic Analysis
how they stack up against their competition and to visualize cannibalization.

WLRQJURZWKHWKQLFLW\DYHUDJHDQG
A community must have a clear understanding of the competitive nature of retail recruitment.

Peer & Competing Community Analysis
the primary retail trade area.
and Palm Desert community. Psychographic reports (i.e., ESRI Tapesty Segmentation) will be executed for We will create comprehensive 2020 Census, 2023, and 2028 Demographic Profiles for the Retail Trade Area median household incomes, median age, households and household growth, and educational attainment.

We will look
at competing and peer communities across the region to identify a competitive advantage via economic and submarket viability in relation to Palm Desert as a whole. development, or redevelopment and analyze existing retail, cannibalization effects of new businesses, and We will provide a Submarket Analysis highlighting at least three (3) key areas of focus for retail growth, submarkets and what drives retail in each submarket is vital to overall retail recruitment success.

Every community has multiple retail submarkets. Having a strong understanding of your community’s Submarket/Corridor Analysis
sectors are strengths or currently under served by the existing retail market. demand to current sales projects to generate a GAP or retail leakage report. This will help identify which ultimately used to identify recruitment targets for the community. The Retail Coach will also compare the the primary projected retail demand growth — or opportunities — for 68 retail sectors. The analysis is One way to quantify its retail demand through a Retail Demand Analysis, which provides a summary of Retail GAP + Demand Analyses
market forces that have a direct impact on retail recruitment and development in Palm Desert.

PROPOSED SCOPE OF WORK

Proposal: Retail Market Analysis + Recruitment Services 13 $QH΍HFWLYHUHWDLOUHFUXLWPHQWVWUDWHJ\LVEXLOWXSRQDVWURQJ SWOT Analysis
Retail Recruitment Strategy
QDUUDWLYHRIWKHPDUNHWDQGLWVRSSRUWXQLW\
&RDFKZLOOSUHVHQWD6:27$QDO\VLVWR&LW\VWD΍WRXQGHUVWDQGZ there is room for improvement - is critical to the message used to attract new development. The Retail and competitive advantage. Understanding how Palm Desert measures up - both favorably and where KDW3DOP'HVHUW
VWRSVHOOLQJSRLQWVDUH
7KH5HWDLO&RDFKZLOOWDUJHWQDWLRQDODQGUHJLRQDOUHWDLOEUDQG Retail Match List
and how to mitigate potential new development hurdles.

VWKDWDUHDJRRGȊȴWȋIRUWKHFRPPXQLW\
OHDVW
SRWHQWLDOUHWDLOHUVDQGUHVWDXUDQWVZLWK3DOP'HVHUW
education levels meet the retailers’ ideal location criteria. We will develop and review a master list of (at This means that the Retail Trade Area population, disposable incomes, consumer spending habits, and VWD΍DQGZRUNWRJHWKHUWRSUHSDUHDȴQDO
SURSHUW\YDFDQFLHVDQGVLWHVWKDWȴWWKHLUORFDWLRQSUHIHUHQFHV Retailers are interested not only in the market data on your community, but also in evaluating all available Site Identification and Highest + Best Use Analysis
target list.
6XFFHVVIXOUHWDLOUHFUXLWPHQWEHJLQVWR
KDSSHQZLWKWKHLQWURGXFWLRQRIDYDLODEOHVLWHV:HZLOOLGHQWLI\SULRULW\UHWDLOYDFDQFLHVDQGGHYHORSPHQW redevelopment sites to market, as well as evaluate their highest and best use.

SCOPE OF WORK

Proposal: Retail Market Analysis + Recruitment Services 14 7KH5HWDLO&RDFKLVWKHȴUVWQDWLRQDOUHWDLOUHFUXLWPHQWȴUPWR Proactive Retailer, Restaurant, Entertainment + Developer Recruitment Marketing + Recruitment
LQWURGXFHUHWDLOHUDQGGHYHORSHUUHFUXLWPHQW
VSHFLȴFDOO\IRUFRPPXQLWLHV7ZHQW\\HDUVDQGSURMHFWVODWHUWKHUHFUXLWPHQWRIUHWDLOHUVUHPDLQVRQH just gathering data sets, and proactively recruit retail. of the primary metrics of success. Today, our experience has proven that a community must move beyond •
• We will actively recruit retailers on Palm Desert's behalf. Our retailer recruitment process includes:

ΖQWURGXFWRU\HPDLOVDQGUHWDLOPDUNHWSURȴOHDUHVHQWWRHDFKWDUJHWHGUHWDLOHU •
• Personal emails and retailer feasibility packages are sent to each targeted retailer • Personal phone calls are placed to measure interest level 3HUVRQDOHPDLOVDQGUHWDLOVLWHSURȴOHVIRUSULPHYDFDQFLHVDUHVHQWWRWKHDSSURSULDWHWDUJHWHGUHWDLOHUV • 3HUVRQDOHPDLOVDUHVHQWWRLQIRUPWDUJHWHGUHWDLOHUVRIVLJQLȴFDQWPDUNHWFKDQJHV • Follow-ups are sent to decision markers once per quarter to continue engagement EURNHUVDWUHWDLOLQGXVWU\FRQIHUHQFHV)RUDQ\3DOP'HVHUW6WD the City, we will assist in marketing Palm Desert - and its vacancies and site - to retailers, developers, and and Retail LIVE events has been a staple for The Retail Coach for over 20 years. In our partnership with forging relationships with key site selectors and decision holders. Having a prominent presence at ICSC Recruitment is a relationships business, and retail conferences are essential to getting in front of and Commercial Real Estate Conference Representation
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Key Events: ICSC Las Vegas, ICSC Western, ICSC Monterey planning and setting appointments.

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SCOPE OF WORK

Proposal: Retail Market Analysis + Recruitment Services 15 &LW\VWD΍WRGLVFXVVXSGDWHVUHWDLOHUIHHGEDFNDQGVWUDWHJ\ To keep clear and open lines of communication, The Retail Coach will set monthly Zoom meetings with Monthly Update Calls
with their ongoing projects or goals and to make direct introductions with targets brand representatives.

Retail Coach will meet with local property owners, franchisees, brokers, and other stakeholders to assist Local buy-in is a must have for communities looking to build a comprehensive recruitment program. The Local Stakeholder Engagement + Focus Groups
Coaching + Ongoing Support
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information), deliverables, and overall project progress.

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DYDLODEOHIRUORFDODQGH[LVWLQJEXVLQHVVHVWRVKDUHPDUNHWȴQG downtown core. In addition to targeting chain brands, The Retail Coach will host a workshop and be The healthiest retail markets have a strong presence of national, retail, and local businesses with a strong Local Business Workshop
property owners, and to host workshops for stakeholders.

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ensure the local market is poised for success.

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reps and brokers.
include topics like: retail trends; site selection criteria; crafting a perfect pitch; and how to talk to tenant

SCOPE OF WORK

Proposal: Retail Market Analysis + Recruitment Services 16 Deliverables & Timeline
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Marketing + Recruitment
Retail Recruitment Strategy
Retail Market Analysis
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Existing Retailer Map
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Retail Fusion Analysis
Retail Void Analysis
Retail Site Highest + Best Use Analysis
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COST PROPOSAL
Meeting
Kickoff
Project Ongoing
Recruitment &
Support
Market
& Analysis
Research Material
Marketing
Development
Execution
Contract 0-30 Days
from Kickoff from Kickoff
30-60 Days Day 0 through
Agreement
Duration of

Proposal: Retail Market Analysis + Recruitment Services Associate: $125
Specialist $175
Manager: $215
Director $250
Executive: $275
The Retail Coach Billing Rates are as follows:

Note: If additional work is deemed necessary and approved, City upon completion of work.
summaries and feedback, electronic files, etc... will be turned over to the All originals of plans, notes, data/calculations, reports, communication EXHIBIT “C”

COMPENSATION
A. One-Year Contract (including travel expenses)
(Not-to-Exceed Amount) $55,000
B. OPTIONAL “Year 2”: One-Year Contract Extension
(Not-to-Exceed Amount) $40,000
C. OPTIONAL “Year 3”: One-Year Contract Extension
(Not-to-Exceed Amount) $40,000

Proposal: Retail Recruitment Consulting Services 1
Charles Parker | Project Director
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PROJECT LEAD
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Proposal: Retail Recruitment Consulting Services 2
Cary Everitt | Retail Recruitment Specialist
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EXPERIENCE + QUALIFICATIONS

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: November 16, 2023
PREPARED BY: Ryan Gayler, Capital Projects Manager
REQUEST: ACCEPT CONTRACT NO. C44570 AS COMPLETE FOR THE WHITE STONE LANE STREET IMPROVEMENTS (PROJECT 512-21)
RECOMMENDATION:

1. Approve Change Order No. 3 in the amount of $20,357.36.

2. Accept Contract No. C44570 with Jacobsson Engineering Construction, Inc., of Palm Desert, California, for the White Stone Lane Street Improvements as complete. (Project No. 512-21).

3. Authorize the Mayor to execute and the City Clerk to file the Notice of Completion.

BACKGROUND/ANALYSIS:

On February 16, 2023, the City Council awarded the subject contract in the amount of $535,122 to Jacobsson Engineering Construction, Inc. for the White Stone Lane Street Improvements.

The project installed subsurface drainage pipes to reduce flooding in the street and rehabilitated the street section. The drainage system and a catch basin had to be relocated due to conflicts with existing utilities. This work was performed under contract change orders number one and two. The City Manager was authorized to approve the first two change orders totaling $38,104.01 because the cost did not exceed the approved contingency amount. Staff is requesting approval of change order 3 in the amount of $20,357.36 for the restoration of a mailbox, transportation for residents during the paving operation, additional concrete to tie into existing improvements, and extra sod to transition from the new street elevation to the golf course. The revised contract total is $593,583.37.

Staff has inspected the work performed by the contractor and has found said work to be complete and in accordance with the contract requirements.

Legal Review:

This report has been reviewed by the City Attorney’s office.

FINANCIAL IMPACT:

There is no financial impact beyond the change order amount associated with this action.

ATTACHMENTS:

1. Change Order No. 3

2. Notice of Completion

3. Vicinity Map

CITY OF PALM DESERT

CONTRACT CHANGE ORDER
Justification:

Contract No / P.O. #:

Change Order No.:

Contingency: YES NO
Account No.:

Project No.:

Vendor No.:

Description of Changes Decrease
In Contract Price
Increase
In Contract Price
Totals:

Net Change in Contract Price:

Original Contract Amount: +
Contingency: +
Total Budget Amount:

Less: Expend. / Encumb. To Date: -
Less: This Change Order Amount: -
Remaining for Project:

Contingency: +
Less: Prior Change Order(s): -
Less: This Change Order: -
Remaining of Contingency:
__________________________________________________________ dollars and ___/100 (___________) Revised Contract Total: ___________________________
Contractor shall construct, furnish all supervision, labor, services, equipment, and materials, and perform all work necessary or required to fully complete the changes to the Contract described in this Change Order for the amount agreed upon between the Contractor and the City of Palm Desert (“City”).

Contract Purpose:

Contractor Name:

C44570 P116343 3
✔
2134311-4332000 512-21 V0002883 Construct Street and Drainage improvements on White Stone Lane Jacobsson Engineering Construction, Inc. COR #5 - Restore mail box $ 7,680.00 COR #7 - Resident trasportation during paving $ 1,513.00 COR #8 - Additional transition concrete $ 3,819.36 COR #9 - Additional sod $ 7,345.00 $ 0.00 $ 20,357.36 $ 20,357.36 $ 20,357.36 $ 20,357.36 $ 535,122.00 $ 53,500.00 $ 588,622.00 $ 53,500.00 $ 573,226.01 -$ 4,961.37 $ 38,104.01 -$ 4,961.37 The amount of the contract will be increased by the sum of: Twenty thousand three hundred fifty-seven 36 $ 20,357.36 $ 593,583.37

Continued from Front
Contract No. _________ Contract Change Order No. ___
Contract Time Extension: __________________________
Contractor accepts the terms and conditions stated above as full and final settlement of any and all claims arising out of or related to the subject of this Change Order and acknowledges that the compensation (time and cost) set forth herein comprises the total compensation due for the work or change defined in the Change Order, including all impact on any unchanged work. Execution of this Change Order by the Contractor constitutes a binding accord and satisfaction that fully satisfies, waives, and releases the City from all claims, demands, costs, and liabilities, in contract, law or equity, arising out of or related to the subject of the Change Order, whether known or unknown, including but not limited to direct and indirect costs and/or damages for delay, disruption, acceleration, loss of productivity, and stacking of trades, as well as any and all consequential damages. The adjustments to the Contract Price and Contract Time in this Change Order constitute the entire compensation and/or adjustment thereto due to Contractor, including but not limited to all direct, indirect, consequential, profit, labor, equipment, tools, idle time, incidentals, and overhead (field and home office) costs, due to Contractor arising out of or related to the change in the work covered by this Change Order. The Contractor hereby releases and agrees to waive all rights, without exception or reservation of any kind whatsoever, to file any further claim or request for equitable adjustment of any type, for any reasonably foreseeable cause that shall arise out of, or as a result of, this Change Order and/or its impact on the remainder of the work under the Contract. This Change Order will become a supplement to the Contract and all provisions will apply hereto.

1. REQUESTED BY: ______________________
Department Director 2. ACCEPTED BY: ______________________Contractor

3. CERTIFIED FUNDS

AVAILABLE
______________________
Finance Director 4. APPROVED BY: ______________________City Manager NOTE: No payments will be made prior
to City Manager or Council approval
QC: _____
C44570 3
N/A

To be recorded with the Riverside County Recorder
on or within 15 days after completion and acceptance by the City Council. NO RECORDING FEE PER
SECTION 6103 OF THE GOVERNMENT CODE.

APN 000-000-000 R/W NOTICE OF COMPLETION
(Cal. Civ. Code § 9200 et seq. – Public Works)
NOTICE IS HEREBY GIVEN:

1. That the interest or estate stated in paragraph 3 herein in the real property herein described is SOLELY OWNED by the CITY OF PALM DESERT, A MUNICIPAL CORPORATION, a political subdivision of the State of California, and whose address is 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA, 92260.

2. That the full name and address of the owner of said interest or estate is set forth in the preceding paragraph.

3. That the nature of the title of the stated owner, as set forth in paragraph 1, is FEE.

4. That on the 16
th day of November 2023 work of improvement described as the White Stone Lane Street Improvements, Project No. 512-21 Contract No. C44570, on the real property herein described was completed.

5. That the name of the original contractor, if any, for said work of improvement was: Jacobsson Engineering Construction, Inc., P.O. Box 14430, Palm Desert, CA 92255.

6. That the real property herein referred to is situated in the City of Palm Desert, County of Riverside, State of California, and is described as (City right-of-way) 73-510 Fred Waring Drive, Palm Desert CA 92260.

CITY OF PALM DESERT

A MUNICIPAL CORPORATION
Date: By:

Kathleen Kelly, Mayor

When recorded, return to:

Office of the City Clerk
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260

VERIFICATION
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, am authorized to execute and file this Notice of Completion with the County Recorder of the County of Riverside on behalf of the City of Palm Desert. I have read the Notice of Completion and know the contents thereof; the same is true of my own knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on , ,20 , at, California.
(Date of signature) (City where signed)
__________________________________________________
(Personal signature of the individual who is swearing that the contents of the notice of completion are true)
Rev. March 2022

Vicinity Map
White Stone Lane Street Improvements

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: November 16, 2023
PREPARED BY: Amy Lawrence, Deputy Director of Economic Development REQUEST: APPROVE THE PARTY IN THE PARK EVENT CONTINGENCY RECOMMENDATION:

1. Approve contingency monies for The Party in the Park in anticipation of potential inclement weather or unforeseen circumstances.

2. Authorize City Manager to approve use of funds, if necessary.

3. If necessary, authorize Director of Finance to appropriate $50,000 to account number 1104800-4306101, from unobligated General Fund Reserves.

BACKGROUND/ANALYSIS:

On July 13, 2023, the City Council approved a contract and funding in the amount of $350,000 for Palm Springs Life (PSL) to produce the City of Palm Desert’s 50th Anniversary Celebration at the Civic Center Park (The Party in the Park) scheduled for Saturday, November 18, 2023.

PSL has been researching insurance to cover costs in case of an event delay due to inclement weather or unforeseen circumstances. To date, they have not located a company that covers hard costs as most only cover loss of revenue expected as result of cancellation. Because this is a free event, there would be no loss of revenue to cover.

Therefore, staff is requesting approval of a contingency in the amount of $50,000 to cover the following estimated operational costs related to rescheduling the event by one day, if needed, due to inclement weather or unforeseen circumstances:
 Additional labor costs – primarily production company.  Lodging/per diem for talent already in town.
 Existing contracts would be honored and paid in full.  Based on availability and understanding of each artist, they may or may not be available to perform on Sunday – additional costs to rebook existing talent, if available, or booking local talent as alternative a day in advance.
 Additional security and added transportation costs.

It is likely that a delay in the event would result in a reduction in amenity offerings such as food trucks, “Best of” and “Taste of” participants, activities in the kid’s area, etc.; however, PSL and City staff would work to ensure a successful rescheduled event given unpredictable conditions.

Legal Review:

This report has been reviewed by the City Attorney’s office.

City of Palm Desert
Approve The Party in the Park Event Contingency

FINANCIAL IMPACT:

The total contract with PSL for event production is $350,000 and police services are estimated at $8,000. Staff is requesting appropriation of contingency funding in the amount of $50,000 to account number 1104800-4306101, from unobligated General Fund Reserves in anticipation of potential event delays due to inclement weather or unforeseen circumstances. Use of funds would require City Manager authorization based on circumstances and funds would only require appropriation if necessary.

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: November 16, 2023
PREPARED BY: Richard D. Cannone, AICP, Development Services Director REQUEST: AWARD A CONTRACT TO INTERWEST CONSULTING GROUP, INC.,

FROM ONTARIO, CALIFORNIA, TO PREPARE AN UPDATE TO THE

UNIVERSITY NEIGHBORHOOD SPECIFIC PLAN IN THE AMOUNT OF
$264,880
RECOMMENDATION:

1. Award contract to Interwest Consulting Group, Inc., from Ontario, California, to prepare an update to the University Neighborhood Specific Plan in an amount not to exceed $264,880.

2. Authorize the City Attorney to make non-substantive changes and the City Manager to execute all necessary documents.

BACKGROUND/ANALYSIS:

The University Neighborhood Specific Plan (UNSP) was adopted in 2016 and establishes comprehensive planning and zoning for approximately 400 acres intended for development of a new, mixed-use, walkable community adjacent to planned campuses for California State University San Bernardino and the University of California Riverside.

Approximately 170 acres (of the 400 acres) remain with no entitlements and are under the control of the City of Palm Desert/Successor Agency to the Palm Desert Redevelopment Agency (SARDA). Within this area, the City’s intention is to develop a 30 to 40-acre regional park, 220 affordable housing units (Site I and J of the 6th Cycle Housing Element) and create a community facilities and a gathering place much like a traditional town square. To facilitate the planning and development of the remaining 170 acres and to implement the City’s goals, an amendment of the UNSP is necessary. This amendment would consider:
 Updates to the Environmental Impact Report (EIR) as needed, for the project scope.  Ensuring internal consistency between the specific plan and General Plan land use element and circulation elements.
 Redistribute of open space to include the 30-to-40-acre park and necessary connections.  Establish the site areas and density to support two five-acre sites for affordable housing as required by the adopted 6th Cycle Housing Element.
 Evaluate redistribution of commercial and residential uses for the 170 acres.  Establish a circulation network within the plan that prioritizes connectivity, walkability, and design.

Development Services staff developed a detailed Scope of Services (Exhibit A of the draft contract) for RFP No. 2023-RFP-203 to solicit proposals and identify the most qualified firm to develop the Specific Plan Update. Notices announcing the availability of the RFP were

City of Palm Desert
UNSP Update - 2023-RFP-203

distributed via the City’s online bid system, OpenGov Procurement, on June 30, 2023. A total of 1,542 firms were notified, 603 firms viewed the RFP, and 44 firms downloaded the RFP.

A mandatory pre-proposal meeting was held on July 17, 2023, at City Hall, at which one firm, Albert A. Webb Associates, was in attendance. Due to the low attendance, and addendum to the RFP was issued to extend the RFP submittal date and hold a second mandatory preproposal meeting was scheduled, and held on August 1, 2023, and multiple firms attended that meeting, including the two firms that submitted proposals:
 Albert A. Webb Associates
 Interwest Consulting Group, Inc
A review panel consisting of the Development Services Director, Economic Development Director, Community Services Manager, Principal Planner, and the Senior Planner reviewed the responses in accordance with the following evaluation criteria:

1. Experience and background of the firm, with emphasis on successful completion of local government projects that are similar in scope and nature.

2. Responsiveness to the objectives of the requested services.

3. Creative approach in recommending additions and refinements to the scope of work that achieves the goals of the project.

4. Demonstrated ability to meet schedules, deadlines, and complete projects within the budget representative of the defined scope of work.

5. Overall quality, completeness, and clarity in the proposal.

6. Proposal pricing and value to the City.

The panel determined that both firms should be interviewed. Of the two firms interviewed on August 31, 2023, the panel selected Interwest Consulting Group as the most qualified firm.

The panel’s final ranking was as follows:

Firm Location Rank Score
(100)
Fee
Interwest Consulting Group Ontario, CA 1 81.6 $264,880
Albert A. Webb Associates Riverside, CA 2 75.4 $1,097,900 While both firms are highly qualified, key items that set the two firms apart included:
 The ability to meet the established deadline of adoption within a 12-month time frame.  The ability to provide cost value to the city. As part of the RFP, a budget of $150,000 was established, both firms exceeded this initial budget, however the selected firm has established a more cost-effective work plan while satisfying the requirements of the proposal.

Attached is the draft professional services agreement with Interwest Consulting Group in the amount not to exceed $264,880 to prepare the update to the University Neighborhood Specific Plan.

City of Palm Desert
UNSP Update - 2023-RFP-203

Legal Review:

This report has been reviewed by the City Attorney’s office.

FINANCIAL IMPACT:

Funds have been budgeted in Account No. 1104470-4305000 to cover the cost of this contract.

ATTACHMENTS:

1. Draft Contract and Exhibits

2. Interwest Consulting Group, Inc Proposal

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CITY OF PALM DESERT

PROFESSIONAL SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into this 16th day of November, 2023, by and between the City of Palm Desert, a municipal corporation organized under the laws of the State of California with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260-2578, County of Riverside, State of California (“City”) and INTERWEST CONSULTING GROUP, INC, a CORPORATION, with its principal place of business at 1500 S Haven Ave, Suite 220 Ontario, CA 91761 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Project.

The City is a public agency of the State of California and is in need of professional services for the following project:

Professional Planning Services for Updating the University Neighborhood Specific Plan (UNSP), Project 2023-RFP-203
(Hereinafter Referred to as “The Project”).

2.2 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.

Consultant is duly licensed and has the necessary qualifications to provide such services.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the services necessary for the Project ("Services").

The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from NOVEMBER 16, 2023, to DECEMBER 31, 2024, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Responsibilities of Consultant.

3.2.1 Independent Contractor; Control and Payment of Subordinates.

The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.

Any personnel performing the Services shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of

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Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.

3.2.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.

3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause.

The key personnel for performance of this Agreement are as follows: RICHARD SMEATON, AICP, PRINCIPAL-IN-CHARGE and NICK PERGAKES, AICP, PROJECT MANAGER.

3.2.5 City's Representative. The City hereby designates RICHARD CANNONE, DEVELOPMENT SERVICES DIRECTOR, or his designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the scope of Services or change the total compensation due to Consultant under this Agreement.

The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the scope of services or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.

3.2.6 Consultant's Representative. Consultant hereby designates RICHARD SMEATON, AICP, PRINCIPAL-IN-CHARGE and NICK PERGAKES, AICP, PROJECT MANAGER, or his designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.

3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the

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standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.

3.2.9 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”).

Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.

Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.

Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation.

Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

3.2.10 Laws and Regulations; Employee/Labor Certification. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations

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shall be grounds for the City to terminate the Agreement for cause.

3.2.10.1 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.

3.2.10.2 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.2.10.3 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.

3.2.11 Insurance.

3.2.11.1 Minimum Requirements. Without limiting Consultant’s indemnification of City, and prior to commencement of the Services, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to City. (A) General Liability Insurance. Consultant 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. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(B) Automobile Liability Insurance. Consultant 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 Consultant 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. The City’s Risk Manger may modify this requirement if it is determined that Consultant will not be utilizing a vehicle in the performance of his/her duties under this Agreement. (C) Professional Liability (Errors & Omissions) Insurance.

Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the

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effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. (D) Workers’ Compensation Insurance. Consultant shall
maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, its officers, agents, employees, volunteers and representatives.
(E) Umbrella or Excess Liability Insurance. Consultant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
(1) A drop down feature requiring the policy to respond if any primary insurance that would otherwise have
applied proves to be uncollectible in whole or in part for any reason;
(2) Pay on behalf of wording as opposed to reimbursement; (3) Concurrency of effective dates with primary policies; and (4) Policies shall “follow form” to the underlying primary policies.
(5) Insureds under primary policies shall also be insureds under the umbrella or excess policies.
(F) Fidelity Coverage. Reserved.
(G) Cyber Liability Insurance. Reserved.

If coverage is maintained on a claims-made basis, Consultant shall maintain such coverage for an additional period of three (3) years following termination of the Agreement.

3.2.11.2 Other Provisions or Requirements.
(A) Proof of Insurance. Consultant 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.
(B) Duration of Coverage. Consultant 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 Services hereunder by Consultant, his/her agents, representatives, employees or subconsultants.

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(C) Primary/Non-Contributing. Coverage provided by
Consultant 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 non-contributory basis for the benefit of City before the City’s own insurance or selfinsurance shall be called upon to protect it as a named insured. (D) City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may terminate this Agreement.
(E) 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.
(F) Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City, its elected or appointed officers, agents, officials, employees, volunteers, and representatives or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its elected or appointed officers, agents, officials, employees, volunteers and representatives and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(G) Enforcement of Contract Provisions (non estoppel).

Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(H) 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 Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (I) Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide 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.
(J) Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability and cyber liability, policies shall provide or be endorsed

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to provide that the City and its officers, officials, employees, agents, volunteers and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement, under such policies. This provision shall also apply to any excess/umbrella liability policies.
(K) 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.
(L) Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’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. (M) Pass Through Clause. Consultant 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 Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant 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. Consultant agrees that upon request, all agreements with subconsultants, subcontractors, and others engaged in the Project will be submitted to City for review.
(N) City’s Right to Revise Specifications. The City and the City’s Risk Manager reserve the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in additional cost to the Consultant, the City and Consultant may renegotiate Consultant’s compensation. If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice. (O) 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. (P) Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(Q) Additional Insurance. Consultant 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 Services.

3.2.12 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority.

Consultant must comply with the lawful requirements of the City, and any other municipality,

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drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law.

Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies of this Section.

3.3 Fees and Payments.

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed TWO HUNDRED SIXTY-FOUR THOUSAND EIGHT HUNDRED EIGHTY DOLLARS ($264,880) without written approval of the City Council or City Manager, as applicable.

3.3.2 Payment of Compensation. Consultant shall submit to City monthly invoices which provide a detailed description of the Services and hours rendered by Consultant.

City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Consultant shall submit its final invoice to City within thirty (30) days from the last date of provided Services or termination of this Agreement and failure by the Consultant to submit a timely invoice may constitute a waiver of its right to final payment. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.

3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.

3.4 Labor Code Requirements.

3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, volunteers and representatives, free and harmless

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from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of Services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, volunteers and representatives free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.

3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5 Accounting Records.

3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.6 General Provisions.

3.6.1 Termination of Agreement.

3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.

3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance

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of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

3.6.1.3 Early Termination. Notwithstanding any provision herein to the contrary, if for any fiscal year of this Agreement the City Council fails to appropriate or allocate funds for future payment under the Agreement after exercising reasonable efforts to do so, the City may upon seven (7) days’ written notice, order work on the Project to cease. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation.

3.6.1.4 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

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3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Consultant: Interwest Consulting Group, Inc,
1500 S Haven Ave, Suite 220
Ontario, CA 91761
ATTN: Richard Smeaton, AICP, Principal-In-Charge
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
ATTN: Richard D. Cannone, AICP, Development Services
Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.6.3 Ownership of Materials and Confidentiality.

3.6.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.

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3.6.3.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.

3.6.3.4 Indemnification – Documents and Data. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers, agents and representatives free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.

3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information.

Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, agents, volunteers and representatives from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.

3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one

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another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.6.5 [Reserved]

3.6.6 Indemnification.

3.6.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, agents, and representatives free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subconsultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, volunteers, or representatives.

3.6.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

3.6.7 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.

3.6.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County.

3.6.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.6.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.6.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.

3.6.12 Assignment; Subcontracting. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City.

Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in

Contract No. ____________
this Agreement.

3.6.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, volunteers and representatives except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.6.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.6.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.6.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.6.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.6.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.6.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination. [SIGNATURES ON NEXT PAGE]

Contract No. ____________

SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT

BY AND BETWEEN THE CITY OF PALM DESERT
AND INTERWEST CONSULTING GROUP, INC.

IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.

CITY OF PALM DESERT
By:

L. TODD HILEMAN

CITY MANAGER
ATTEST:

By:

ANTHONY J. MEJIA
City Clerk
APPROVED AS TO FORM:

By:

Best Best & Krieger LLP
City Attorney
INTERWEST CONSULTING GROUP, INC.

By:

Its:

Printed Name:

By:

Its:

Printed Name:

QC: _____
Insurance:
_____
Initial Review
_____
Final Approval

Contract No. ____________
Exhibit “A”
EXHIBIT "A"

SCOPE OF SERVICES
Project Objectives
This planning effort will focus on evaluating existing and potential land uses; analyzing circulation and infrastructure conditions; and developing land use regulations, implementation strategies and objective design guidelines to encourage appropriately scaled development within the project area. The primary objectives to be achieved through the UNSP update are:
• Consistency with General Plan Land Use and Circulation Element or consider making the Specific Plan the effective land use document over the project area. • Engage and inform the public and existing Plan area residents about transit-oriented design concepts, potential updated development standards and the UNSP update process generally through a comprehensive community involvement strategy. This strategy shall gather significant resident input from a variety of Palm Desert residents and incorporate this input into the UNSP Update policies and design guidelines. • Revise the land use plan and policy framework to transition from significant commercial use requirements to increased housing density and development, while also allowing other neighborhood supportive uses such as retail and office mixed-use throughout the Plan area.
• Improvement of motorized, non-motorized, and transit connectivity between the Plan Area, and existing and future commercial and residential areas (and circulation infrastructure) in and adjacent to Palm Desert city boundaries (as feasible). • Development and implementation of objective urban design standards which promote walkable and livable environments, compatible with the surrounding and existing development within the Plan area.
• Develop subdivision standards that promote walkable environments and incorporate policies of the General Plan.
• Prepare any necessary addenda or supplements to complete the CEQA impact analysis, building on the adopted Environmental Impact Report, as appropriate.

GENERAL
The consultant shall prepare amendments to the UNSP in accordance with Government Code Section 65450 et. seq. The proposal should address all studies, activities, and disciplines necessary to complete the amendment. Consultant responsibilities are those listed below which are not exhaustive. The City encourages innovation in concept, design and implementation. It is not intended that the plan include construction level engineering and design; however, the work must be of adequate detail to evaluate needs, capacity, and cost. • Assemble and review existing information and data.
• Develop new information and data to support the update. • Present background information and data, either within the plan document, or as a separate compendium. The consultant’s recommendation on the most effective approach is requested. All information should be made available in electronic format suitable for display on the City’s web site.
• Prepare all text, illustrations and maps contained in the Amendment. Provide administrative draft(s) for internal City review, a screen check draft, a public review draft, and final documents reflecting all modifications directed by the City. Provide documents in sufficient quantity for review by City officials, property owners and for public

Contract No. ____________
Exhibit “A”
circulation, and provide all materials in an electronic format suitable for publication on the City’s website.

TASK 1: PROJECT KICK-OFF
The consultant(s) and City staff will meet to review and finalize the work scope and project schedule. The meeting will include a discussion of project goals, opportunities and constraints, provision of relevant background information and documents for the existing conditions analysis, arrangement of informational meetings with relevant city staff members, development of the community engagement strategy, and project management.

Deliverables:

1.1: Project kick-off meeting with City staff

1.2: Memorandum summarizing the meeting (Word and PDF format) TASK 2: COMMUNITY ENGAGEMENT STRATEGY AND OUTREACH
The City is seeking to engage community participation in the UNSP update process. City staff and the consultant(s) will develop a community engagement strategy that will focus on outreach to, and inclusion of key stakeholders including residents, business owners, and property owners. The strategy must include various forms of engagement to increase levels of community participation.

One open house/community workshop must be held as part of this Task. The purpose of the meetings is to understand the community’s vision, with a focus on new residential communities in the UNSP area, recognize attitudes surrounding what land uses and development intensity should be included in the plan, and to solicit input on opportunities, constraints, and potential changes for the area.

The consultant will be responsible for utilizing tools and developing a process to understand community preferences within the project area. Use of photo simulations and development prototypes to help identify preferences should be employed, as well as community asset mapping, allowing the community to identify concepts for improving/transforming the area. The community input will assist in guiding the development of the two land use alternatives. The consultant will lead these meetings, present plan area existing conditions and opportunities, and receive feedback from community members regarding information presented.

Webpage
The consultant will develop content and provide background and meeting information, reports and maps related to the project for a project specific webpage. The project webpage will be part of the City’s website (rather than a separate, outside website linked to the City’s). City staff will post information and keep the site current, with updated content provided by consulting staff.

Deliverables:

2.1: Community Engagement Strategy, includes components as described above

2.2: Visualization tools, including renderings and visual simulations (physical and electronic format)

Contract No. ____________
Exhibit “A”

2.3: Project webpage content and materials

2.4: Community Meeting (including agenda, attendance, meeting materials)

2.5: Summary of Community Meeting

2.6: Potential supplementary meetings with City Staff and relevant stakeholders TASK 3: OPPORTUNITY SITE ANALYSIS AND ALTERNATIVE LAND USE ANALYSIS Following the initial meetings and outreach, the consultant shall develop the land use alternatives. The scenarios should be developed to support bus transit as well as to facilitate pedestrian and bicycle access. Alternatives should promote development of healthy, walkable neighborhoods and enhance opportunities for residents to easily access services and facilities throughout the Plan area and beyond. Changes to development standards or incorporation of form-based code may be considered. The alternatives should consider information prepared through the planning process and from the community outreach.

Commercial, office, residential, open space, and mixed-use land uses should be thoughtfully and strategically placed to maximize community connectivity and create a level of synergy between adjacent single-family residential neighborhoods. The alternatives should consider information generated through previous analysis, community outreach, and TAC feedback.

Each alternative must address:
• A mix of housing units that aligns with the City’s RHNA and Housing Element. • Distribution and evaluation of proposed new uses, including affordable residential units by type and non-residential square footage by type and a planned regional park. • Roadway design alternatives to support the proposed uses and circulation, including sidewalk width, public amenities/furniture, on-street parking and curb management, including placemaking concepts.
• A transportation analysis shall be prepared for each alternative comparing how each addresses connectivity to services, schools, jobs, and transit. • The chosen alternative will include an intersection Level of Service (LOS) and Vehicle Miles Travelled (VMT) analysis for Palm Desert General Plan consistency purposes and impact analysis under CEQA.
• A report and maps describing and analyzing the alternatives will be prepared to quantify development potential in terms of housing units, non-residential floor area, population, and employment. Projected population and jobs for each alternative shall be included.

Presentation of Land Use and Circulation Alternatives:

The consultant will present the alternatives to the staff for review, feedback, and possible refinement prior to presentation at a public meeting. At that meeting, the consultant shall utilize interactive techniques to understand participants’ preferences. This may result in a clear preference for one alternative or in a hybrid concept which combines components of each.

Based upon input received, the consultant shall develop a preferred land use and circulation alternative which will serve as the basis for the Specific Plan Update. This Plan will be presented to staff, and refinements will be made to the preferred alternative prior to its presentation to the Planning Commission and/or City Council. Input received at this meeting will

Contract No. ____________
Exhibit “A”
be used to refine the alternative and develop the preferred alternative.

Deliverables:

3.1: Display graphics illustrating the alternative land use and circulation plans with additional sketches, visual simulations, elevations, and street sections needed to convey each alternative

3.2: Land Use and Circulation Alternatives Report

3.3: Quantified development potential and traffic analysis for preferred alternative (meeting CEQA requirements)

3.4: Community Meeting notice/agenda

3.5: Community Meeting, including attendance and facilitation, and all necessary meeting materials

3.6: Community Meeting summary
TASK 4: PREFERRED LAND USE ALTERNATIVE
Based on input received at community/committee meetings, as well as input received from other methods of community outreach, the consultant(s), in consultation with City staff, will develop a preferred land use alternative which will serve as a basis for the draft Specific Plan update. The preferred alternative will be presented to staff for review and feedback. The community will also be asked to respond to the preferred plan. Input received will be used to refine the alternative and develop the draft Specific Plan update.

Deliverables:

4.1: Preferred land use plan visuals, including sketches and elevations

4.2: Preferred land use plan report, including quantified development potentials

4.3: Planning Commission and Architectural Review Commission Joint Public Workshop, including attendance and facilitation, and all necessary meeting materials

4.4: Meeting 3 summary
TASK 5: INFRASTRUCTURE DEVELOPMENT AND SERVICE PLAN
Working with the staff, the consultant shall prepare a conceptual Infrastructure Development and Services Plan to determine infrastructure needed to support land uses and improvements identified in the preferred alternative, adequate to meet the needs of CEQA. The analysis shall describe infrastructure conditions and improvements needed to support the plan in terms of water, wastewater, storm drainage (including low impact development), electricity, gas, cable, telephone service, internet/fiber, transportation, greenways, and parks. Distinction shall be made between improvements needed for existing versus future development so future costs can be appropriately attributed. In addition, increased demand for public services such as transit, schools, police, and fire required to serve the Plan area should be identified. The Plan shall:

Contract No. ____________
Exhibit “A”
• Analyze and summarize existing and needed service capacities. • Assess the services envisioned in the UNSP area and those that would be needed with the preferred alternative.
• Provide descriptions of needed public improvements, including street improvements to City standard, upsizing of water and wastewater mains and storm drains, undergrounding utilities, and development costs.
• Provide descriptions of needed improvements associated with private utilities, such as natural gas, electric, phone, cable, and internet connectivity. • Provide descriptions of any changes required to public services and facilities. • Provide general cost estimates and phasing recommendations for needed improvements and service systems within the UNSP area.

Deliverables:

5.1: Infrastructure Development and Services Report
TASK 6: DRAFT UNIVERSITY NEIGHBORHOOD SPECIFIC PLAN UPDATE The consultant shall prepare a draft updated Specific Plan in compliance with state law. The updated Specific Plan will serve as the City’s long range, comprehensive land use, circulation, and implementation plan for guiding development within the Plan boundary. The Specific Plan shall contain the following components:
• Planning Process. Description of the process to develop the Plan and the role the public played in creating the Plan.
• Land Use/Housing. Description of land use designations, including number of units, potential square footage of mixed use and or neighborhood serving retail development, and employment generating land uses. Population and job projections shall be included.

Changes to development standards or implementation of form-based code must be considered.
• Transportation. Description of circulation for motor vehicles, transit, bicycles, and pedestrians. New streets, paired one-way streets, paths, and connections shall be included. Policies regarding complete streets and the circulation element of the General Plan shall also be included.
• Public Services. Includes information about services and infrastructure needed to implement the updated Plan. This should include specific policies regarding utilities, public safety, parks.
• Access and Connectivity Plan. Addresses access to and through the Plan area with specific focus on connecting housing, commercial, and retail with the Plan area to existing neighborhoods by all transportation modes including walking, bicycling, driving, and transit.
• Implementation and Financing Plan. Identifies actions and strategies for Plan implementation, including a rough budget estimate. Include infrastructure improvements needed for Plan implementation.

An administrative draft Specific Plan shall be prepared for review by City staff. Comments received shall be incorporated into the public review draft Specific Plan. The draft Specific Plan Update shall then be presented to the Planning Commission at a public workshop then to City Council at a Study Session to present the final draft and accept any remaining comments and requested changes.

Contract No. ____________
Exhibit “A”
Deliverables:

6.1: Administrative Draft Specific Plan

6.2: Public Review Draft Specific Plan

6.3: Planning Commission Workshop, including attendance and facilitation, and all necessary meeting materials

6.4: Workshop Summary

6.5: City Council Study Session, including attendance and facilitation, and all necessary meeting materials

6.6: City Council Study Session summary
TASK 7: GENERAL PLAN AND ZONING AMENDMENTS
Consultant(s) and City staff will evaluate properties within the project boundaries to determine which sites would need General Plan land use amendments and UNSP rezoning based on the preferred alternative developed in Task 5.

Deliverables:

7.1: List of properties, and associated maps, requiring General Plan land use designation amendments, and to what designation they will be amended (maps must be compatible with ESRI Geographic Information Systems)

7.2: List of General Plan text amendments

7.3: List of properties, and associated maps, requiring UNSP rezoning, and to what designation they will be amended (maps must be compatible with ESRI Geographic Information Systems)

7.4: List of Zoning Code text amendments
TASK 8: ENVIRONMENTAL ANALYSIS
The project consultant must prepare an Initial Study which will analyze the broad-scale environmental impacts of the updated Specific Plan. Additionally, Consultant(s) will be responsible for the preparation of a Negative Declaration, Mitigated Declaration, or Environmental impact Report (EIR) Or Addendum as determined by the Initial Study. Additional deliverables associated with this Task are dependent on the findings from the Initial Study and should be included as an optional item in proposal.

Consultant must review the adopted and certified UNSP Environmental Impact Report (EIR) and determine the appropriate process for conducting the UNSP update, in a manner consistent with the provisions of the California Environmental Quality Act (CEQA). The consultant shall also prepare responses to comments received during the public review period, a mitigation monitoring and reporting program, and statement of overriding considerations, as necessary. At a minimum, the environmental analysis shall evaluate all necessary environmental factors and shall considered the following areas:

Contract No. ____________
Exhibit “A”
• Land Use Consistency and Compatibility. The analysis will describe existing land use and development patterns and evaluate the proposed project’s consistency with adopted City plans and policies.
• Population, Housing and Employment. The environmental analysis will analyze projected population, housing and employment impacts of the draft Specific Plan update. • Transportation and Circulation. The environmental analysis will define and establish both the Transit Priority Area(s) within the Plan area and Vehicle Miles Traveled (VMT) standards as recommended by the Governor’s Office of Planning and Research for residential, office and retail development and in accordance with City adopted guidelines. The analysis will further analyze VMT per capita associated with the proposed land uses within the Plan area. The analysis shall also evaluate the Level of Service (LOS) impacts of the amendment.
• Air Quality. The environmental analysis will address the project’s impact on air pollutants and their precursors as well as localized carbon monoxide impacts utilizing the appropriate air quality modeling tools. The analysis will address both operational, including vehicular emissions (long term), and construction level (short term) impacts on local and regional air quality.
• Energy/Climate Change. Changes in energy consumption anticipated through implementation of the draft Specific Plan update shall be analyzed. Greenhouse gas emissions anticipated from the project shall be included. The environmental analysis shall analyze how development anticipated by the Specific Plan will be affected by climate change and how implementation of the Plan will affect climate change. While analysis of this topic is evolving, this environmental analysis should include the most current thinking and practice regarding impacts of greenhouse gas emissions. • Water Usage. Evaluate if a water supply verification/water supply assessment is required based on any potential increases in total dwelling units or employment. • Cultural Resources. Evaluate cultural and tribal resources within the specific plan area and coordinate required tribal consultation pursuant to SB 18, and/or AB 52.

In addition, the environmental analysis shall include discussion of growth inducing and cumulative impacts, and significant, unavoidable impacts, if any and as needed.

If required, pursuant to CEQA, the consultant will facilitate a scoping meeting and a public hearing on the environmental analysis at the Planning Commission. The consultant shall prepare responses to comments received during the public review period and at the public hearing on the environmental analysis. The consultant shall coordinate the printing of all final environmental documents.

Deliverables:

8.1: Initial Study and any appendices (Word & PDF)

8.2: Notice of Preparation/Scoping Meeting (Word & PDF format)

8.3: Public scoping meeting for environmental analysis preparation

8.4: Administrative draft environmental analysis, (Word and PDF format)

8.5: Draft environmental analysis, (Word and PDF format)

8.6: Final environmental analysis, including draft environmental analysis and response to comments (Word & PDF format)

Contract No. ____________
Exhibit “A”
TASK 9: PRESENTATION AND ADOPTION OF DRAFT UNSP AND ENVIRONMENTAL

ANALYSIS
The consultant, in collaboration with City staff, will prepare the Planning Commission and City Council packet materials, including the staff report, PowerPoint presentation, resolutions and ordinances, and present the draft Specific Plan update, and any necessary environmental analysis, at public hearings before the Commission and Council. The consultant shall make any final revisions to the Specific Plan and environmental analysis based on changes adopted by the City Council.

Deliverables:

9.1: Planning Commission staff report and PowerPoint presentation

9.2: Presentation of draft UNSP update at Planning Commission public hearing

9.3: City Council staff report and PowerPoint presentation

9.4: Presentation of draft UNSP update at up to two (2) City Council public hearings

9.5: Adopted Specific Plan, electronic copy in Word and PDF format (graphics/maps shall be prepared in a graphics file in a format that is editable by the City).

Contract No. ____________
Exhibit “B”
EXHIBIT "B"

SCHEDULE OF SERVICES
The term of this Agreement shall be from NOVEMBER 16, 2023, to DECEMBER 31, 2024, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

SEE ATTACHED PROPOSAL

Contract No. ____________
Exhibit “C”
EXHIBIT "C"

COMPENSATION

SEE ATTACHED COST PROPOSAL

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: November 16, 2023
PREPARED BY: Nick Melloni, AICP, Principal Planner
REQUEST: APPROVAL OF MILLS ACT CONTRACTS BETWEEN THE CITY AND

PROPERTY OWNERS OF EIGHT INDIVIDUAL HISTORICAL

PROPERTIES
RECOMMENDATION:

Adopt eight resolutions approving Mills Act Contracts between the City and the respective owners of the following properties:

1. 113 Sandpiper Street (MILLS23-0001)

2. 151 Sandpiper Street (MILLS23-0002)

3. 372 Sandpiper Street (MILLS23-0005)

4. 362 Sandpiper Street (MILLS23-0006)

5. 72806 Bursera Way (MILLS23-0007)

6. 72760 Mesquite Court #F (MILLS23-0009)

7. 72473 El Paseo #1110 (MILLS23-0010)

8. 72543 El Paseo #1005 (MILLS23-0011)
BACKGROUND/ANALYSIS:

The Mills Act Program enables California cities to enter contracts with owners of historical properties (as designated by the City Council) to provide them with tax relief in exchange for a contract to actively participate in the restoration and maintenance of historical resources. A Mills Act contract is effective for an initial 10-year period and then is automatically extended annually for an additional year, unless, after the initial term, either the City or the owner, by written notice, decides not to renew the contract. During the effective term of the contract, the property owner must improve, rehabilitate, or maintain the property consistent with the United State Secretary of the Interior’s Standards for Rehabilitation, and provide visibility of the historical resource from the public right-of-way and/or other accessible areas.

The Environmental Resources Element (ERE) of the General Plan describes the City’s goals and policies for the protection of cultural resources. Goals 6.9.4 and 6.9.5 state that the City will require sites with significant cultural resources and structures to be preserved. A property must be designated as a local Historic Landmark or be a contributing property to a Historic District to be enrolled in the program. Currently, there are 33 properties participating in the program, with the last requests approved by the Council in November 2022.

The items presented include eight separate requests for Mills Act contracts. These requests include one local landmark and seven contributors for a historic district as summarized on the following page:

City of Palm Desert
Mills Act Contract Approval

Table 1 – Proposed Mills Act Contract Properties
Environment Review:

Entering into a “Mills Act Contract” with the owners of historical property is not subject to the provisions of the California Environmental Quality Act (CEQA) because it is not a project as defined in CEQA Guidelines § 15378 (Definitions – Project). Implementation of the Mills Act is a government fiscal activity which does not involve commitment to any specific project resulting in a potentially significant physical impact on the environment (CEQA Guidelines § 15378 (b) (4)).

Legal Review:

This report has been reviewed by the City Attorney’s office.

FINANCIAL IMPACT:

After the Mills Act Contracts are recorded, the County Assessor values the property by an income capitalization method, following guidelines provided by the State Board of Equalization.

Because of the timing and the method of valuing the restricted property, it is difficult to accurately estimate the tax savings and resulting fiscal impacts to the City under a particular historical property contract. However, the Office of Historic Preservation (California Department of Parks and Recreation) estimates that property owners participating in the program may realize property tax savings of between 40% and 60% each year for newly improved or purchased older properties. The City’s property tax revenue will be reduced accordingly.

ATTACHMENTS:

1. Draft Resolution and Mills Act Contract for 113 Sandpiper Street (MILLS23-0001)

2. Draft Resolution and Mills Act Contract for 151 Sandpiper Street (MILLS23-0002)

3. Draft Resolution and Mills Act Contract for 372 Sandpiper Street (MILLS23-0005)

4. Draft Resolution and Mills Act Contract for 362 Sandpiper Street (MILLS23-0006)

5. Draft Resolution and Mills Act Contract for 72806 Bursera Way (MILLS23-0007)

6. Draft Resolution and Mills Act Contract for 72760 Mesquite Court #F (MILLS23-0009)

7. Draft Resolution and Mills Act Contract for 72473 El Paseo #1110 (MILLS23-0010)

8. Draft Resolution and Mills Act Contract for 72543 El Paseo #1005 (MILLS23-0011) Case No. Address Landmark / District Name
Date of Council
Designation
1 MILLS23-0001 113 Sandpiper Street Sandpiper Circle #1 4/14/2022 2 MILLS23-0002 151 Sandpiper Street Sandpiper Circle #1 4/14/2022 3 MILLS23-0005 372 Sandpiper Street Sandpiper Circle #3 2/10/2022 4 MILLS23-0006 362 Sandpiper Street Sandpiper Circle #3 2/10/2022 5 MILLS23-0007 72806 Bursera Way Charles E. Du Bois House 11/17/2022 6 MILLS23-0009 72760 Mesquite Court #F Kings Point at Palm Desert 12/12/2019 7 MILLS23-0010 72473 El Paseo #1110 Sandpiper Circle #11 5/23/2013 8 MILLS23-0011 72543 El Paseo #1005 Sandpiper Circle #10 3/23/2017

RESOLUTION NO. 2023-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,

CALIFORNIA, APPROVING A MILLS ACT AGREEMENT BETWEEN THE CITY AND THE OWNER OF THE PROPERTY LOCATED AT 113

SANDPIPER ST
CASE NOS. MILLS23-0001
WHEREAS, the City Council of the City of Palm Desert is authorized by California Government Code § 50280 et seq. (known as “the Mills Act”) to enter into contracts with the owners of qualified historical properties to provide for appropriate use, maintenance, and rehabilitation such that these historic properties retain their historic characteristics; and WHEREAS, the City Council of the City of Palm Desert has adopted Resolution No. 9136 (2000 Series), establishing the Mills Act Historic Property Tax Incentive Program as an ongoing historic preservation program to promote the preservation, maintenance, and rehabilitation of historic resources through financial incentives; and WHEREAS, the City Council of the Palm Desert has designated this property as a historic resource of the City of Palm Desert pursuant to the policies in the Title 29 of the Palm Desert Municipal Code; and
WHEREAS, Fleck Matthew K and Fleck Janice M are the owner of that certain qualified real property, together with associated structures and improvement thereon, located on Assessor’s Parcel Number 640-240-022, located at 113 Sandpiper Street, in the City of Palm Desert, California; and
WHEREAS, the City and Owner, for their mutual benefit, now desire to enter into an agreement to limit the use of the property to prevent inappropriate alterations and to ensure that character-defining features are preserved and maintained in an exemplary manner, and repairs and improvements are completed as necessary to carry out the purposes of California Government Code, Chapter 1, Part 5 of Division 1 of Title 5, Article 12, Sec. 50280 et seq., and to qualify for an assessment of valuation pursuant to Article 1.9, Sec. 439 et. seq. of the Revenue and Taxation Code; and
WHEREAS, the City Council conducted a public hearing in the Council Chamber of City Hall, 73510 Fred Waring Drive, Palm Desert, California, on November 16, 2023, for the purpose of considering approval of the historic property preservation agreement, and has duly considered all evidence, and testimony of the applicant and interested parties, and the evaluation and recommendation by staff, present at said hearing; and WHEREAS, notices of said public hearings were made at the time and in the manner required by law.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:

SECTION 1. Findings. Based upon all the evidence, the City Council makes the following findings:

a) Environmental Resources Element Program 6.9.4 and 6.9.5 states that the City will require sites with significant cultural resources and structures to be preserved.
b) The subject property, located at 113 Sandpiper Street, has been recognized as a historic asset in the community by its designation as a contributing asset to a Historic District by the City Council Resolution No 2022-29 on April 14, 2022 As such, maintaining the structure will meet the City’s goals for historic preservation listed in policies 6.9.4 and 6.9.5 of the Environmental Resources Element.

SECTION 2. Environmental Determination. The City Council has determined that the above actions do not constitute a project, as defined in California Environmental Quality Act Guidelines § 15378 and are not subject to environmental review.

SECTION 3. Historic Property Preservation Agreement Approved. The City Council hereby approves the Mills Act Agreement between the City of Palm Desert and the Owner of the Historic Property Located at 113 Sandpiper Street, to be entered into by the City and the property owner, Fleck Matthew K and Fleck Janice M.

SECTION 4. City Manager Authorized to Sign Agreement for City. The City Council hereby authorizes the Community Development Director to execute said agreement on behalf of the Council of the City of Palm Desert.

SECTION 4. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City’s office at 73510 Fred Waring Drive, Palm Desert, CA 92260. Anthony J. Mejia, MMC, the City Clerk of the City of Palm Desert is the custodian of the record of proceedings.

SECTION 6. Effective Date. This Resolution shall become effective immediately upon its adoption.

ADOPTED ON November 16, 2023.

KATHLEEN KELLY
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK

STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.

CITY OF PALM DESERT )
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, DO HEREBY CERTIFY that the foregoing Resolution No. 23-__ was duly adopted by the City Council of the City of Palm Desert at a regular meeting held on the ___ day of November, 2023 by the following vote of the Council:

AYES:

NOES:

ABSENT:
(SEAL)
_________________________
ANTHONY J. MEJIA

CITY CLERK

RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:

City Clerk’s Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578

FOR THE BENEFIT OF THE

CITY OF PALM DESERT
- NO FEE -
6103 OF THE GOVT. CODE
(This Space for Recorder’s Use Only)

Historic Property Preservation Agreement
(“Mills Act Contract”)
Between
City of Palm Desert, California
a Municipal Corporation “City”
and

FLECK MATTHEW K/FLECK JANICE M
“Owner(s)”
Legal Description of Property
APN 640-240-022
113 SANDPIPER ST, PALM DESERT, CA 92260-3485
Dated: November 16, 2023
(Resolution No. 2022-29 – Case No. CRPC 2022-29)
Approved at the Palm Desert City Council Meeting of April 14, 2022) MILLS ACT CONTRACT APPROVED BY RESOLUTION NO. 2023-
(Title of Document)
____________________________________________________________________________________________________________

2 HISTORIC PROPERTY PRESERVATION AGREEMENT
(“MILLS ACT CONTRACT or Agreement”)
This agreement is made this November 16, 2023, by and between the City of Palm Desert, a municipal corporation (“City”) and FLECK MATTHEW K/FLECK JANICE M (“Owner(s)”).

RECITALS

1. California Government Code section 50280, et. seq. allows cities the discretion to enter into contracts with the owners of qualified historic properties, as that term is defined in Government Code section 50280.1, for the purpose of providing for the use, maintenance, protection, and restoration of such historic property so as to retain its characteristics as property of historic significance.

2. Owner holds fee title in and to that certain real property, together with associated structures and improvements thereon, generally located at the street address 113 SANDPIPER ST, Palm Desert, California (“Historic Property”). A legal description of the Historic Property is attached hereto as Exhibit “A,” and incorporated herein by this reference.

3. On April 14, 2022, the Cultural Resources Preservation Committee and/or the City Council designated the Historic Property as an historic resource pursuant to the terms and provisions of Title 29 of the Palm Desert Municipal Code.

4. City and Owner desire to enter into this Agreement for the purpose of protecting and preserving the characteristics of historical significance of the Historic Property that help provide the community with its own unique civic identity and character.

5. Owner, in consideration for abiding by the terms of this Agreement, shall be entitled to qualify for a reassessment of valuation of the Historic Property, pursuant to the provisions of Chapter 3, Part 2, of Division 1 of the California Revenue and Taxation Code, and any corresponding adjustment in property taxes resulting therefrom.

3 TERMS NOW, THEREFORE, the City and Owner in consideration of mutual covenants and conditions set forth herein, do hereby agree as follows:

1. Effective Date and Term of Agreement. This Agreement shall be effective and commence on November 16, 2023, (“Effective Date”) and shall remain in effect for a term of ten (10) years thereafter.

2. Yearly Renewal. Each year upon the anniversary of the Effective Date (“Renewal Date”), an additional one (1) year shall automatically be added to the remaining term of the Agreement unless a notice of nonrenewal is delivered as provided in Section 3 of this Agreement.

3. Nonrenewal. If either the Owner or City desires in any year not to renew this Agreement, Owner or City shall serve a written notice of nonrenewal upon the party in advance of the Renewal Date (“Notice of Nonrenewal”). The Notice of Nonrenewal shall be effective only if served by Owner upon City at least ninety (90) days prior to the Renewal Date, or if served by City upon Owner, the Notice of Nonrenewal shall be effective only if served upon Owner at least sixty (60) days prior to the Renewal Date. If either City or Owner serves a Notice of Nonrenewal in any year, this Agreement shall remain in effect for the balance of the term then remaining.

4. Owner Protest of City Nonrenewal. Within fifteen (15) days of Owner’s receipt of the Notice of Nonrenewal from City, Owner may file with City a written protest of the Notice of Nonrenewal. Upon receipt of the written protect, the City Council shall set a hearing prior to the expiration of the Renewal Date of this Agreement. Owner may furnish the City Council with any information which Owner deems relevant and shall furnish the City Council with any information it may require.

The City Council may, at any time prior to the annual Renewal Date, withdraw its Notice of Nonrenewal.

5. Standards for Historical Property. During the term of this Agreement, the Historic Property shall be subject to the following conditions, requirements, and restrictions:

4 A. Owner shall preserve and maintain the characteristics of the cultural and historical significance of the Historic Property. Attached hereto as Exhibit “B,” and incorporated herein by this reference, is a list of the minimum standards and conditions for maintenance, use, protection, and preservation of the Historic Property, which shall apply to the Historic Property and be complied with by Owner throughout the term of this Agreement. In addition, Owner shall comply with the terms of the City’s Cultural Resources Ordinance 1168 (Title 29 of the Palm Desert Municipal Code), and shall obtain any applicable permits necessary to protect, preserve, restore, and rehabilitate the Historic Property so as to maintain its historical and cultural significance.

B. Owner shall, where necessary, repair, maintain, restore, and rehabilitate the Historic Property according to the rules and regulations of the Office of Historic Preservation of the State Department of Parks and Recreation and the City of Palm Desert. The condition of the exterior of the Historic Property on the effective date of this Agreement is documented in photographs attached as Exhibit “C” and incorporated herein by this reference. At a minimum, Owner shall continually maintain the exterior of the Historic Property in the same condition as documented in Exhibit “C.”
C. Owner shall carry out specific restoration, repair, maintenance, and/or rehabilitation projects on the Historic Property, as outlined in the attached Exhibit “D,” which is incorporated herein by this reference. All such projects shall be undertaken and completed in accordance with the Secretary of Interior Standards for Rehabilitation and the City of Palm Desert design guidelines.

D. Owner shall not be permitted to block the view corridor with any new structure, such as walls, fences, or shrubbery, so as to prevent the viewing of the Historic Property from the public right-of-way.

5 6. Periodic Examinations. Upon reasonable advance notice, Owner shall allow reasonable periodic examinations of the interior and exterior of the Historic Property by representatives of the County Assessor, the State Department of Parks and Recreation, the State Board of Equalization and/or City, as may be necessary to determine Owner’s compliance with the terms and provisions of this Agreement. City shall inspect Historic Property prior to entering into this Agreement and at least every five years thereafter to determine Owner’s continued compliance with Agreement.

7. Provision of Information of Compliance. Owner hereby agrees to furnish City with any and all information requested by City, which City deems necessary or advisable to determine eligibility of the Historic Property and compliance with the terms and provisions of this Agreement.

8. Breach of Agreement; Remedies.

A. Notice of Breach; Opportunity to Cure. If Owner breaches any provision of this Agreement, City may give written notice to Owner by registered or certified mail detailing Owner’s violations. If such violation is not corrected to the reasonable satisfaction of City within thirty (30) days after the date of notice of violation, or within such a reasonable time as may be required to cure the violation (provided the acts to cure the violation are commenced within thirty (30) days and thereafter diligently pursued to completion), the City may, without further notice, declare Owner to be in breach of this Agreement. Upon City’s declaration of Owner’s breach, City may pursue any remedy available under local, state, or federal law, including those specifically provided for in this section.

B. Remedy - Cancellation. City may cancel this Agreement if City determines, following a duly noticed public hearing in accordance with Government Code section 50286, that Owner breached any of the conditions of the Agreement, Owner allowed the Historic Property to deteriorate to the point that it no longer meets the standards for a

6 qualified historic property, or Owner failed to maintain and preserve the Historic Property in accordance with the terms of this Agreement. If this Agreement is cancelled, under this paragraph, Owner shall pay a cancellation fee to the Office of the Auditor for the County of Riverside as required by Government Code section 50286.

C. Alternative Remedies. As an alternative to cancellation of this Agreement for Owner’s breach of any condition, City may bring an action in court necessary to enforce this Agreement including, but not limited to, an action to enforce this Agreement by specific performance, injunction, or receivership.

9. Destruction of Property; Eminent Domain; Cancellation. If the Historic Property is destroyed by earthquake, fire, flood, or other natural disaster such that in the opinion of the City Building Official more than sixty percent (60%) of the original fabric of the structure must be replaced, this Agreement shall be cancelled because the historic value of the structure will have been destroyed. If the Historic Property is acquired in whole or in part by eminent domain or other acquisition by any entity authorized to exercise the power of eminent domain, and the acquisition is determined by the City Council to frustrate the purpose of this Agreement, this Agreement shall be cancelled. No cancellation fee pursuant to Government Code section 50286 shall be imposed if the Agreement is cancelled pursuant to this Section.

10. Waiver. City does not waive any claim of default by Owner if City does not enforce or cancel this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City’s regulations governing historic properties are available to the City to pursue in the event that there is a reach of this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.

11. Binding Effect of Agreement. Owner hereby subjects the Historic Property to the covenants, conditions, and restrictions set forth in this Agreement. City and Owner hereby declare their specific intent that the covenants, conditions, and

7 restrictions set forth herein shall be deemed covenants running with the land and shall inure to and be binding upon Owner’s successors and assigns in title or interest to the Historic Property. Each and every contract, deed or other instrument herein after executed, covering or conveying the Historic Property, or any portion thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions are set forth in such contract, deed or other instrument.

12. Covenants Run with the Land. City and Owner hereby declare their understanding and intent that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that it restricts development of the Historic Property. City and Owner hereby further declare their understanding and intent that the benefit of such covenants, reservations and restrictions touch and concern the land by enhancing and maintaining the cultural and historical characteristics and significance of the Historic Property for the benefit of the public and the Owner.

13. Notice. Any notice required to be given by the terms of this Agreement shall be provided at the address of the respective parties as specified below or at any other address as may be later specified by the parties hereto:

City: City of Palm Desert
Planning Division
73-510 Fred Waring Drive
Palm Desert, CA 92260
Owner: FLECK MATTHEW K/FLECK JANICE M
23264 SE 58TH ST,
ISSAQUAH WA 98029-8906 R009

14. Effect of Agreement. None of the terms, provisions or conditions of this Agreement shall be deemed to create a partnership between the parties hereto and

8 any of their heirs, successors or assigns, nor shall such terms, provisions or conditions cause the parties to be considered joint venturers or members of any joint enterprise.

15. Indemnity of City. Owner shall defend, indemnify, and hold harmless City and its elected officials, officers, agents and employees from any actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state or local governmental agency, arising out of or incident to (i) the direct or indirect use operation, or maintenance of the Historic Property by Owner or any contractor, subcontractor, employee, agent, lessee, licensee, invitee, or any other person; (ii) Owner’s activities in connection with the Historic Property; and (iii) any restrictions on the use or development of the Historic Property, from application or enforcement of Title 29 of the City’s Municipal Code, or from the enforcement of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them.

Owner’s obligation to indemnify shall survive the termination, cancellation, or expiration of this Agreement and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents.

16. Binding Upon Successors. All of the agreements, rights, covenants, reservations and restrictions contained in this Agreement shall be binding upon and shall inure to the benefit of the parties herein, their heirs, successors, legal representatives, assigns and all persons acquiring any part or portion of the Historic Property, whether by operation of law or in any manner whatsoever.

17. Legal Costs. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants, conditions or restrictions contained herein, or to determine the rights and duties of any party

9 hereunder, the prevailing party in such proceeding may recover all reasonable attorneys’ fees to be fixed by the court, in addition to court costs and other relief ordered by the court.

18. Severability. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby.

19. Recordation. No later than twenty (20) days after the Effective Date, City shall cause this Agreement to be recorded in the office of the County Recorder of the County of Riverside.

20. Amendments. This Agreement may be amended, in whole or in part, only by written recorded instrument executed by the parties hereto.

21. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of California. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county.

10 IN WITNESS WHEREOF, City and Owner have executed this Agreement on the day and year first above written.

Dated: _______________ CITY OF PALM DESERT
By ______________________

KATHLEEN KELLY, MAYOR
ATTEST:

By ________________________________
ANTHONY J. MEJIA, CITY CLERK

CITY OF PALM DESERT, CALIFORNIA

APPROVED AS TO FORM
___

ISRA SHAH

CITY ATTORNEY
Dated: ________________ OWNER

By: ___________________________
MATTHEW K. FLECK, OWNER
By: ___________________________
JANICE M. FLECK, OWNER

11 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.

State of ___________________ }
} SS.

County of __________________ }
On , 2023 , 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

12 Exhibit “A”

LEGAL DESCRIPTION OF HISTORIC PROPERTY

13 Exhibit “B”
Property Maintenance Minimum Standards

1. The Historic District Property shall comply with all regulations of Title 8 and Title 9 of the Palm Desert Municipal Code, including the definition of “Good Repair” as outlined in Section 29.20 and 29.60.160;

2. The Historic Property shall continue to be maintained in a manner consistent with the level of maintenance that has customarily been employed at the property and consistent with the typical condominium development in the Palm Desert Area.

3. The Historic Property shall not have non-operational vehicles or portions of them in public view.

4. The Historic Property Shall not have stagnant or standing water.

5. The Historic Property Shall not have overgrown or decaying landscaping. All landscape features should be maintained including, but not limited to, grass, trees, and any plantings.

6. The Historic Property shall prominently display and properly maintain its City Landmark plaque.

14 Exhibit “C”
Exterior Photographs of Historic Property

15

16 Exhibit “D”
10-Year Improvement Plan

RESOLUTION NO. 2023-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,

CALIFORNIA, APPROVING A MILLS ACT AGREEMENT BETWEEN THE CITY AND THE OWNER OF THE PROPERTY LOCATED AT 151

SANDPIPER STREET
CASE NOS. MILLS23-0002
WHEREAS, the City Council of the City of Palm Desert is authorized by California Government Code § 50280 et seq. (known as “the Mills Act”) to enter into contracts with the owners of qualified historical properties to provide for appropriate use, maintenance, and rehabilitation such that these historic properties retain their historic characteristics; and WHEREAS, the City Council of the City of Palm Desert has adopted Resolution No. 9136 (2000 Series), establishing the Mills Act Historic Property Tax Incentive Program as an ongoing historic preservation program to promote the preservation, maintenance, and rehabilitation of historic resources through financial incentives; and WHEREAS, the City Council of the Palm Desert has designated this property as a historic resource of the City of Palm Desert pursuant to the policies in the Title 29 of the Palm Desert Municipal Code; and
WHEREAS, Carlson/Carlson Michael A & Christina are the owners of that certain qualified real property, together with associated structures and improvement thereon, located on Assessor’s Parcel Number 640-240-005, located at 151 Sandpiper Street in the City of Palm Desert, California; and
WHEREAS, the City and Owners, for their mutual benefit, now desire to enter into an agreement to limit the use of the property to prevent inappropriate alterations and to ensure that character-defining features are preserved and maintained in an exemplary manner, and repairs and improvements are completed as necessary to carry out the purposes of California Government Code, Chapter 1, Part 5 of Division 1 of Title 5, Article 12, Sec. 50280 et seq., and to qualify for an assessment of valuation pursuant to Article 1.9, Sec. 439 et. seq. of the Revenue and Taxation Code; and
WHEREAS, the City Council conducted a public hearing in the Council Chamber of City Hall, 73510 Fred Waring Drive, Palm Desert, California, on November 16, 2023, for the purpose of considering approval of the historic property preservation agreement, and has duly considered all evidence and testimony of the applicant and interested parties, and the evaluation and recommendation by staff, present at said hearing; and WHEREAS, notices of said public hearings were made at the time and in the manner required by law.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:

SECTION 1. Findings. Based upon all the evidence, the City Council makes the following findings:

a) Environmental Resources Element Program 6.9.4 and 6.9.5 states that the City will require sites with significant cultural resources and structures to be preserved.
b) The subject property, located at 151 Sandpiper Street, has been recognized as a historic asset in the community by its designation as a Contributing Assess to a Historic District by the City Council Resolution No. 2022-29 As such, maintaining the structure will meet the City’s goals for historic preservation listed in policies 6.9.4 and 6.9.5 of the Environmental Resources Element.

SECTION 2. Environmental Determination. The City Council has determined that the above actions do not constitute a project, as defined in California Environmental Quality Act Guidelines § 15378 and are not subject to environmental review.

SECTION 3. Historic Property Preservation Agreement Approved. The City Council hereby approves the Mills Act Agreement between the City of Palm Desert and the Owner of the Historic Property Located at 151 Sandpiper Street, to be entered into by the City and the property owners, Carlson/Carlson Michael A & Christina.

SECTION 4. City Manager Authorized to Sign Agreement for City. The City Council hereby authorizes the Community Development Director to execute said agreement on behalf of the Council of the City of Palm Desert.

SECTION 4. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City’s office at 73510 Fred Waring Drive, Palm Desert, CA 92260. Anthony J. Mejia, MMC, the City Clerk of the City of Palm Desert is the custodian of the record of proceedings.

SECTION 6. Effective Date. This Resolution shall become effective immediately upon its adoption.

ADOPTED ON November 16, 2023.

KATHLEEN KELLY
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK

STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.

CITY OF PALM DESERT )
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, DO HEREBY CERTIFY that the foregoing Resolution No. 23-__ was duly adopted by the City Council of the City of Palm Desert at a regular meeting held on the ___ day of November, 2023 by the following vote of the Council:

AYES:

NOES:

ABSENT:
(SEAL)
_________________________
ANTHONY J. MEJIA

CITY CLERK

RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:

City Clerk’s Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578

FOR THE BENEFIT OF THE

CITY OF PALM DESERT
- NO FEE -
6103 OF THE GOVT. CODE
(This Space for Recorder’s Use Only)

Historic Property Preservation Agreement
(“Mills Act Contract”)
Between
City of Palm Desert, California
a Municipal Corporation “City”
and

CARLSON/CARLSON MICHAEL A & CHRISTINA
“Owner”
Legal Description of Property
APN (640-240-005)
151 SANDPIPER ST, PALM DESERT, CA 92260-3485
POR LOT 97 AND LOT 13 MB 054/036 TR 3103
Dated: November 16, 2023
(Resolution No. 2022-29 – Case No. CRPC 22-01)
Approved at the Palm Desert City Council Meeting of April 14, 2022) MILLS ACT CONTRACT APPROVED BY RESOLUTION NO. 2023-
(Title of Document)
____________________________________________________________________________________________________________

2 HISTORIC PROPERTY PRESERVATION AGREEMENT
(“MILLS ACT CONTRACT or Agreement”)
This agreement is made this November 16, 2023, by and between the City of Palm Desert, a municipal corporation (“City”) and CARLSON/CARLSON MICHAEL A & CHRISTINA (“Owner”).

RECITALS

1. California Government Code section 50280, et. seq. allows cities the discretion to enter into contracts with the owners of qualified historic properties, as that term is defined in Government Code section 50280.1, for the purpose of providing for the use, maintenance, protection, and restoration of such historic property so as to retain its characteristics as property of historic significance.

2. Owner holds fee title in and to that certain real property, together with associated structures and improvements thereon, generally located at the street address 151 SANDPIPER ST, Palm Desert, California (“Historic Property”). A legal description of the Historic Property is attached hereto as Exhibit “A,” and incorporated herein by this reference.

3. On April 14, 2022, the Cultural Resources Preservation Committee and/or the City Council designated the Historic Property as an historic resource pursuant to the terms and provisions of Title 29 of the Palm Desert Municipal Code.

4. City and Owner desire to enter into this Agreement for the purpose of protecting and preserving the characteristics of historical significance of the Historic Property that help provide the community with its own unique civic identity and character.

5. Owner, in consideration for abiding by the terms of this Agreement, shall be entitled to qualify for a reassessment of valuation of the Historic Property, pursuant to the provisions of Chapter 3, Part 2, of Division 1 of the California Revenue and Taxation Code, and any corresponding adjustment in property taxes resulting therefrom.

3 TERMS NOW, THEREFORE, the City and Owner in consideration of mutual covenants and conditions set forth herein, do hereby agree as follows:

1. Effective Date and Term of Agreement. This Agreement shall be effective and commence on November 16, 2023, (“Effective Date”) and shall remain in effect for a term of ten (10) years thereafter.

2. Yearly Renewal. Each year upon the anniversary of the Effective Date (“Renewal Date”), an additional one (1) year shall automatically be added to the remaining term of the Agreement unless a notice of nonrenewal is delivered as provided in Section 3 of this Agreement.

3. Nonrenewal. If either the Owner or City desires in any year not to renew this Agreement, Owner or City shall serve a written notice of nonrenewal upon the party in advance of the Renewal Date (“Notice of Nonrenewal”). The Notice of Nonrenewal shall be effective only if served by Owner upon City at least ninety (90) days prior to the Renewal Date, or if served by City upon Owner, the Notice of Nonrenewal shall be effective only if served upon Owner at least sixty (60) days prior to the Renewal Date. If either City or Owner serves a Notice of Nonrenewal in any year, this Agreement shall remain in effect for the balance of the term then remaining.

4. Owner Protest of City Nonrenewal. Within fifteen (15) days of Owner’s receipt of the Notice of Nonrenewal from City, Owner may file with City a written protest of the Notice of Nonrenewal. Upon receipt of the written protect, the City Council shall set a hearing prior to the expiration of the Renewal Date of this Agreement. Owner may furnish the City Council with any information which Owner deems relevant and shall furnish the City Council with any information it may require.

The City Council may, at any time prior to the annual Renewal Date, withdraw its Notice of Nonrenewal.

5. Standards for Historical Property. During the term of this Agreement, the Historic Property shall be subject to the following conditions, requirements, and restrictions:

4 A. Owner shall preserve and maintain the characteristics of the cultural and historical significance of the Historic Property. Attached hereto as Exhibit “B,” and incorporated herein by this reference, is a list of the minimum standards and conditions for maintenance, use, protection, and preservation of the Historic Property, which shall apply to the Historic Property and be complied with by Owner throughout the term of this Agreement. In addition, Owner shall comply with the terms of the City’s Cultural Resources Ordinance 1168 (Title 29 of the Palm Desert Municipal Code), and shall obtain any applicable permits necessary to protect, preserve, restore, and rehabilitate the Historic Property so as to maintain its historical and cultural significance.

B. Owner shall, where necessary, repair, maintain, restore, and rehabilitate the Historic Property according to the rules and regulations of the Office of Historic Preservation of the State Department of Parks and Recreation and the City of Palm Desert. The condition of the exterior of the Historic Property on the effective date of this Agreement is documented in photographs attached as Exhibit “C” and incorporated herein by this reference. At a minimum, Owner shall continually maintain the exterior of the Historic Property in the same condition as documented in Exhibit “C.”
C. Owner shall carry out specific restoration, repair, maintenance, and/or rehabilitation projects on the Historic Property, as outlined in the attached Exhibit “D,” which is incorporated herein by this reference. All such projects shall be undertaken and completed in accordance with the Secretary of Interior Standards for Rehabilitation and the City of Palm Desert design guidelines.

D. Owner shall not be permitted to block the view corridor with any new structure, such as walls, fences, or shrubbery, so as to prevent the viewing of the Historic Property from the public right-of-way.

5 6. Periodic Examinations. Upon reasonable advance notice, Owner shall allow reasonable periodic examinations of the interior and exterior of the Historic Property by representatives of the County Assessor, the State Department of Parks and Recreation, the State Board of Equalization and/or City, as may be necessary to determine Owner’s compliance with the terms and provisions of this Agreement. City shall inspect Historic Property prior to entering into this Agreement and at least every five years thereafter to determine Owner’s continued compliance with Agreement.

7. Provision of Information of Compliance. Owner hereby agrees to furnish City with any and all information requested by City, which City deems necessary or advisable to determine eligibility of the Historic Property and compliance with the terms and provisions of this Agreement.

8. Breach of Agreement; Remedies.

A. Notice of Breach; Opportunity to Cure. If Owner breaches any provision of this Agreement, City may give written notice to Owner by registered or certified mail detailing Owner’s violations. If such violation is not corrected to the reasonable satisfaction of City within thirty (30) days after the date of notice of violation, or within such a reasonable time as may be required to cure the violation (provided the acts to cure the violation are commenced within thirty (30) days and thereafter diligently pursued to completion), the City may, without further notice, declare Owner to be in breach of this Agreement. Upon City’s declaration of Owner’s breach, City may pursue any remedy available under local, state, or federal law, including those specifically provided for in this section.

B. Remedy - Cancellation. City may cancel this Agreement if City determines, following a duly noticed public hearing in accordance with Government Code section 50286, that Owner breached any of the conditions of the Agreement, Owner allowed the Historic Property to deteriorate to the point that it no longer meets the standards for a

6 qualified historic property, or Owner failed to maintain and preserve the Historic Property in accordance with the terms of this Agreement. If this Agreement is cancelled, under this paragraph, Owner shall pay a cancellation fee to the Office of the Auditor for the County of Riverside as required by Government Code section 50286.

C. Alternative Remedies. As an alternative to cancellation of this Agreement for Owner’s breach of any condition, City may bring an action in court necessary to enforce this Agreement including, but not limited to, an action to enforce this Agreement by specific performance, injunction, or receivership.

9. Destruction of Property; Eminent Domain; Cancellation. If the Historic Property is destroyed by earthquake, fire, flood, or other natural disaster such that in the opinion of the City Building Official more than sixty percent (60%) of the original fabric of the structure must be replaced, this Agreement shall be cancelled because the historic value of the structure will have been destroyed. If the Historic Property is acquired in whole or in part by eminent domain or other acquisition by any entity authorized to exercise the power of eminent domain, and the acquisition is determined by the City Council to frustrate the purpose of this Agreement, this Agreement shall be cancelled. No cancellation fee pursuant to Government Code section 50286 shall be imposed if the Agreement is cancelled pursuant to this Section.

10. Waiver. City does not waive any claim of default by Owner if City does not enforce or cancel this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City’s regulations governing historic properties are available to the City to pursue in the event that there is a reach of this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.

11. Binding Effect of Agreement. Owner hereby subjects the Historic Property to the covenants, conditions, and restrictions set forth in this Agreement. City and Owner hereby declare their specific intent that the covenants, conditions, and

7 restrictions set forth herein shall be deemed covenants running with the land and shall inure to and be binding upon Owner’s successors and assigns in title or interest to the Historic Property. Each and every contract, deed or other instrument herein after executed, covering or conveying the Historic Property, or any portion thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions are set forth in such contract, deed or other instrument.

12. Covenants Run with the Land. City and Owner hereby declare their understanding and intent that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that it restricts development of the Historic Property. City and Owner hereby further declare their understanding and intent that the benefit of such covenants, reservations and restrictions touch and concern the land by enhancing and maintaining the cultural and historical characteristics and significance of the Historic Property for the benefit of the public and the Owner.

13. Notice. Any notice required to be given by the terms of this Agreement shall be provided at the address of the respective parties as specified below or at any other address as may be later specified by the parties hereto:

City: City of Palm Desert
Planning Division
73-510 Fred Waring Drive
Palm Desert, CA 92260
Owner(s): CARLSON/CARLSON MICHAEL A & CHRISTINA
7645 E SPOTTED PONY LN,
ANAHEIM CA 92808-1335 C002

14. Effect of Agreement. None of the terms, provisions or conditions of this Agreement shall be deemed to create a partnership between the parties hereto and

8 any of their heirs, successors or assigns, nor shall such terms, provisions or conditions cause the parties to be considered joint venturers or members of any joint enterprise.

15. Indemnity of City. Owner shall defend, indemnify, and hold harmless City and its elected officials, officers, agents and employees from any actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state or local governmental agency, arising out of or incident to (i) the direct or indirect use operation, or maintenance of the Historic Property by Owner or any contractor, subcontractor, employee, agent, lessee, licensee, invitee, or any other person; (ii) Owner’s activities in connection with the Historic Property; and (iii) any restrictions on the use or development of the Historic Property, from application or enforcement of Title 29 of the City’s Municipal Code, or from the enforcement of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them.

Owner’s obligation to indemnify shall survive the termination, cancellation, or expiration of this Agreement and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents.

16. Binding Upon Successors. All of the agreements, rights, covenants, reservations and restrictions contained in this Agreement shall be binding upon and shall inure to the benefit of the parties herein, their heirs, successors, legal representatives, assigns and all persons acquiring any part or portion of the Historic Property, whether by operation of law or in any manner whatsoever.

17. Legal Costs. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants, conditions or restrictions contained herein, or to determine the rights and duties of any party

9 hereunder, the prevailing party in such proceeding may recover all reasonable attorneys’ fees to be fixed by the court, in addition to court costs and other relief ordered by the court.

18. Severability. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby.

19. Recordation. No later than twenty (20) days after the Effective Date, City shall cause this Agreement to be recorded in the office of the County Recorder of the County of Riverside.

20. Amendments. This Agreement may be amended, in whole or in part, only by written recorded instrument executed by the parties hereto.

21. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of California. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county.

10 IN WITNESS WHEREOF, City and Owner have executed this Agreement on the day and year first above written.

Dated: _______________ CITY OF PALM DESERT
By ______________________

KATHLEEN KELLY, MAYOR
ATTEST:

By ________________________________
ANTHONY J. MEJIA, CITY CLERK

CITY OF PALM DESERT, CALIFORNIA

APPROVED AS TO FORM
___

ISRA SHAH

CITY ATTORNEY
Dated: ________________ OWNER

By: ___________________________
MICHAEL A. CARSON, OWNER
By: ___________________________

CHRISTINA CARLSON, OWNER

11 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.

State of ___________________ }
} SS.

County of __________________ }
On , 2023 , 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

12 Exhibit “A”

LEGAL DESCRIPTION OF HISTORIC PROPERTY

13 Exhibit “B”
Property Maintenance Minimum Standards

1. The Historic District Property shall comply with all regulations of Title 8 and Title 9 of the Palm Desert Municipal Code, including the definition of “Good Repair” as outlined in Section 29.20 and 29.60.160;

2. The Historic Property shall continue to be maintained in a manner consistent with the level of maintenance that has customarily been employed at the property and consistent with the typical condominium development in the Palm Desert Area.

3. The Historic Property shall not have non-operational vehicles or portions of them in public view.

4. The Historic Property Shall not have stagnant or standing water.

5. The Historic Property Shall not have overgrown or decaying landscaping. All landscape features should be maintained including, but not limited to, grass, trees, and any plantings.

6. The Historic Property shall prominently display and properly maintain its City Landmark plaque.

14 Exhibit “C”
Exterior Photographs of Historic Property

15

16 Exhibit “D”
10-Year Improvement Plan

RESOLUTION NO. 2023-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,

CALIFORNIA, APPROVING A MILLS ACT AGREEMENT BETWEEN THE CITY AND THE OWNER OF THE PROPERTY LOCATED AT 372

SANDPIPER STREET
CASE NOS. MILLS23-0005
WHEREAS, the City Council of the City of Palm Desert is authorized by California Government Code § 50280 et seq. (known as “the Mills Act”) to enter into contracts with the owners of qualified historical properties to provide for appropriate use, maintenance, and rehabilitation such that these historic properties retain their historic characteristics; and WHEREAS, the City Council of the City of Palm Desert has adopted Resolution No. 9136 (2000 Series), establishing the Mills Act Historic Property Tax Incentive Program as an ongoing historic preservation program to promote the preservation, maintenance, and rehabilitation of historic resources through financial incentives; and WHEREAS, the City Council of the Palm Desert has designated this property as a historic resource of the City of Palm Desert pursuant to the policies in the Title 29 of the Palm Desert Municipal Code; and
WHEREAS, Schnepf James R and Schnepf Christiane N are the owners of that certain qualified real property, together with associated structures and improvement thereon, located on Assessor’s Parcel Number 640-260-015, located at 372 Sandpiper Street, in the City of Palm Desert, California; and
WHEREAS, the City and thew Owners, for their mutual benefit, now desire to enter into an agreement to limit the use of the property to prevent inappropriate alterations and to ensure that character-defining features are preserved and maintained in an exemplary manner, and repairs and improvements are completed as necessary to carry out the purposes of California Government Code, Chapter 1, Part 5 of Division 1 of Title 5, Article 12, Sec. 50280 et seq., and to qualify for an assessment of valuation pursuant to Article 1.9, Sec. 439 et. seq. of the Revenue and Taxation Code; and
WHEREAS, the City Council conducted a public hearing in the Council Chamber of City Hall, 73510 Fred Waring Drive, Palm Desert, California, on November 16, 2023, for the purpose of considering approval of the historic property preservation agreement, and has duly considered all evidence and testimony of the applicant and interested parties, and the evaluation and recommendation by staff, present at said hearing; and WHEREAS, notices of said public hearings were made at the time and in the manner required by law.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:

SECTION 1. Findings. Based upon all the evidence, the City Council makes the following findings:

a) Environmental Resources Element Program 6.9.4 and 6.9.5 states that the City will require sites with significant cultural resources and structures to be preserved.
b) The subject property, located at 372 Sandpiper Street, has been recognized as a historic asset in the community by its designation as a Contributing Assess to a Historic District by the City Council by Resolution No. 2022-08 on February 10, 2022. As such, maintaining the structure will meet the City’s goals for historic preservation listed in policies 6.9.4 and 6.9.5 of the Environmental Resources Element.

SECTION 2. Environmental Determination. The City Council has determined that the above actions do not constitute a project, as defined in California Environmental Quality Act Guidelines § 15378 and are not subject to environmental review.

SECTION 3. Historic Property Preservation Agreement Approved. The City Council hereby approves the Mills Act Agreement between the City of Palm Desert and the Owner of the Historic Property Located at 372 Sandpiper Street, to be entered into by the City and the property owners, Schnepf James R and Schnepf Christiane N.

SECTION 4. City Manager Authorized to Sign Agreement for City. The City Council hereby authorizes the Community Development Director to execute said agreement on behalf of the Council of the City of Palm Desert.

SECTION 4. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City’s office at 73510 Fred Waring Drive, Palm Desert, CA 92260. Anthony J. Mejia, MMC, the City Clerk of the City of Palm Desert is the custodian of the record of proceedings.

SECTION 6. Effective Date. This Resolution shall become effective immediately upon its adoption.

ADOPTED ON November 16, 2023.

KATHLEEN KELLY
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK

STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.

CITY OF PALM DESERT )
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, DO HEREBY CERTIFY that the foregoing Resolution No. 23-__ was duly adopted by the City Council of the City of Palm Desert at a regular meeting held on the ___ day of November, 2023 by the following vote of the Council:

AYES:

NOES:

ABSENT:
(SEAL)
_________________________
ANTHONY J. MEJIA

CITY CLERK

RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:

City Clerk’s Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578

FOR THE BENEFIT OF THE

CITY OF PALM DESERT
- NO FEE -
6103 OF THE GOVT. CODE
(This Space for Recorder’s Use Only)

Historic Property Preservation Agreement
(“Mills Act Contract”)
Between
City of Palm Desert, California
a Municipal Corporation “City”
and

SCHNEPF JAMES R/SCHNEPF CHRISTIANE N
“Owner”
Legal Description of Property
APN (640-260-015)
372 SANDPIPER ST, PALM DESERT, CA 92260-3420
POR LOT 99 AND LOT 79 MB 054/036 TR 3103
Dated: November 16, 2023
(Resolution No. 2022-08 – Case No. CRPC22-01
Approved at the Palm Desert City Council Meeting of February 10, 2022) ____________________________________________________________________________________________________________ MILLS ACT CONTRACT APPROVED BY RESOLUTION NO. 2023-
(Title of Document)

2 HISTORIC PROPERTY PRESERVATION AGREEMENT
(“MILLS ACT CONTRACT or Agreement”)
This agreement is made this November 16, 2023, by and between the City of Palm Desert, a municipal corporation (“City”) and SCHNEPF JAMES R/SCHNEPF CHRISTIANE N (“Owner”).

RECITALS

1. California Government Code section 50280, et. seq. allows cities the discretion to enter into contracts with the owners of qualified historic properties, as that term is defined in Government Code section 50280.1, for the purpose of providing for the use, maintenance, protection, and restoration of such historic property so as to retain its characteristics as property of historic significance.

2. Owner holds fee title in and to that certain real property, together with associated structures and improvements thereon, generally located at the street address 372 SANDPIPER ST Palm Desert, California (“Historic Property”). A legal description of the Historic Property is attached hereto as Exhibit “A,” and incorporated herein by this reference.

3. On February 10, 2022, the Cultural Resources Preservation Committee and/or the City Council designated the Historic Property as an historic resource pursuant to the terms and provisions of Title 29 of the Palm Desert Municipal Code.

4. City and Owner desire to enter into this Agreement for the purpose of protecting and preserving the characteristics of historical significance of the Historic Property that help provide the community with its own unique civic identity and character.

5. Owner, in consideration for abiding by the terms of this Agreement, shall be entitled to qualify for a reassessment of valuation of the Historic Property, pursuant to the provisions of Chapter 3, Part 2, of Division 1 of the California Revenue and Taxation Code, and any corresponding adjustment in property taxes resulting therefrom.

3 TERMS NOW, THEREFORE, the City and Owner in consideration of mutual covenants and conditions set forth herein, do hereby agree as follows:

1. Effective Date and Term of Agreement. This Agreement shall be effective and commence on November 16, 2023, (“Effective Date”) and shall remain in effect for a term of ten (10) years thereafter.

2. Yearly Renewal. Each year upon the anniversary of the Effective Date (“Renewal Date”), an additional one (1) year shall automatically be added to the remaining term of the Agreement unless a notice of nonrenewal is delivered as provided in Section 3 of this Agreement.

3. Nonrenewal. If either the Owner or City desires in any year not to renew this Agreement, Owner or City shall serve a written notice of nonrenewal upon the party in advance of the Renewal Date (“Notice of Nonrenewal”). The Notice of Nonrenewal shall be effective only if served by Owner upon City at least ninety (90) days prior to the Renewal Date, or if served by City upon Owner, the Notice of Nonrenewal shall be effective only if served upon Owner at least sixty (60) days prior to the Renewal Date. If either City or Owner serves a Notice of Nonrenewal in any year, this Agreement shall remain in effect for the balance of the term then remaining.

4. Owner Protest of City Nonrenewal. Within fifteen (15) days of Owner’s receipt of the Notice of Nonrenewal from City, Owner may file with City a written protest of the Notice of Nonrenewal. Upon receipt of the written protect, the City Council shall set a hearing prior to the expiration of the Renewal Date of this Agreement. Owner may furnish the City Council with any information which Owner deems relevant and shall furnish the City Council with any information it may require.

The City Council may, at any time prior to the annual Renewal Date, withdraw its Notice of Nonrenewal.

5. Standards for Historical Property. During the term of this Agreement, the Historic Property shall be subject to the following conditions, requirements, and restrictions:

4 A. Owner shall preserve and maintain the characteristics of the cultural and historical significance of the Historic Property. Attached hereto as Exhibit “B,” and incorporated herein by this reference, is a list of the minimum standards and conditions for maintenance, use, protection, and preservation of the Historic Property, which shall apply to the Historic Property and be complied with by Owner throughout the term of this Agreement. In addition, Owner shall comply with the terms of the City’s Cultural Resources Ordinance 1168 (Title 29 of the Palm Desert Municipal Code), and shall obtain any applicable permits necessary to protect, preserve, restore, and rehabilitate the Historic Property so as to maintain its historical and cultural significance.

B. Owner shall, where necessary, repair, maintain, restore, and rehabilitate the Historic Property according to the rules and regulations of the Office of Historic Preservation of the State Department of Parks and Recreation and the City of Palm Desert. The condition of the exterior of the Historic Property on the effective date of this Agreement is documented in photographs attached as Exhibit “C” and incorporated herein by this reference. At a minimum, Owner shall continually maintain the exterior of the Historic Property in the same condition as documented in Exhibit “C.”
C. Owner shall carry out specific restoration, repair, maintenance, and/or rehabilitation projects on the Historic Property, as outlined in the attached Exhibit “D,” which is incorporated herein by this reference. All such projects shall be undertaken and completed in accordance with the Secretary of Interior Standards for Rehabilitation and the City of Palm Desert design guidelines.

D. Owner shall not be permitted to block the view corridor with any new structure, such as walls, fences, or shrubbery, so as to prevent the viewing of the Historic Property from the public right-of-way.

5 6. Periodic Examinations. Upon reasonable advance notice, Owner shall allow reasonable periodic examinations of the interior and exterior of the Historic Property by representatives of the County Assessor, the State Department of Parks and Recreation, the State Board of Equalization and/or City, as may be necessary to determine Owner’s compliance with the terms and provisions of this Agreement. City shall inspect Historic Property prior to entering into this Agreement and at least every five years thereafter to determine Owner’s continued compliance with Agreement.

7. Provision of Information of Compliance. Owner hereby agrees to furnish City with any and all information requested by City, which City deems necessary or advisable to determine eligibility of the Historic Property and compliance with the terms and provisions of this Agreement.

8. Breach of Agreement; Remedies.

A. Notice of Breach; Opportunity to Cure. If Owner breaches any provision of this Agreement, City may give written notice to Owner by registered or certified mail detailing Owner’s violations. If such violation is not corrected to the reasonable satisfaction of City within thirty (30) days after the date of notice of violation, or within such a reasonable time as may be required to cure the violation (provided the acts to cure the violation are commenced within thirty (30) days and thereafter diligently pursued to completion), the City may, without further notice, declare Owner to be in breach of this Agreement. Upon City’s declaration of Owner’s breach, City may pursue any remedy available under local, state, or federal law, including those specifically provided for in this section.

B. Remedy - Cancellation. City may cancel this Agreement if City determines, following a duly noticed public hearing in accordance with Government Code section 50286, that Owner breached any of the conditions of the Agreement, Owner allowed the Historic Property to deteriorate to the point that it no longer meets the standards for a

6 qualified historic property, or Owner failed to maintain and preserve the Historic Property in accordance with the terms of this Agreement. If this Agreement is cancelled, under this paragraph, Owner shall pay a cancellation fee to the Office of the Auditor for the County of Riverside as required by Government Code section 50286.

C. Alternative Remedies. As an alternative to cancellation of this Agreement for Owner’s breach of any condition, City may bring an action in court necessary to enforce this Agreement including, but not limited to, an action to enforce this Agreement by specific performance, injunction, or receivership.

9. Destruction of Property; Eminent Domain; Cancellation. If the Historic Property is destroyed by earthquake, fire, flood, or other natural disaster such that in the opinion of the City Building Official more than sixty percent (60%) of the original fabric of the structure must be replaced, this Agreement shall be cancelled because the historic value of the structure will have been destroyed. If the Historic Property is acquired in whole or in part by eminent domain or other acquisition by any entity authorized to exercise the power of eminent domain, and the acquisition is determined by the City Council to frustrate the purpose of this Agreement, this Agreement shall be cancelled. No cancellation fee pursuant to Government Code section 50286 shall be imposed if the Agreement is cancelled pursuant to this Section.

10. Waiver. City does not waive any claim of default by Owner if City does not enforce or cancel this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City’s regulations governing historic properties are available to the City to pursue in the event that there is a reach of this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.

11. Binding Effect of Agreement. Owner hereby subjects the Historic Property to the covenants, conditions, and restrictions set forth in this Agreement. City and Owner hereby declare their specific intent that the covenants, conditions, and

7 restrictions set forth herein shall be deemed covenants running with the land and shall inure to and be binding upon Owner’s successors and assigns in title or interest to the Historic Property. Each and every contract, deed or other instrument herein after executed, covering or conveying the Historic Property, or any portion thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions are set forth in such contract, deed or other instrument.

12. Covenants Run with the Land. City and Owner hereby declare their understanding and intent that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that it restricts development of the Historic Property. City and Owner hereby further declare their understanding and intent that the benefit of such covenants, reservations and restrictions touch and concern the land by enhancing and maintaining the cultural and historical characteristics and significance of the Historic Property for the benefit of the public and the Owner.

13. Notice. Any notice required to be given by the terms of this Agreement shall be provided at the address of the respective parties as specified below or at any other address as may be later specified by the parties hereto:

City: City of Palm Desert
Planning Division
73-510 Fred Waring Drive
Palm Desert, CA 92260
Owner: SCHNEPF JAMES R/SCHNEPF CHRISTIANE N
N 34 W HAMILTON RD,
CEDARBURG WI 53012

14. Effect of Agreement. None of the terms, provisions or conditions of this Agreement shall be deemed to create a partnership between the parties hereto and

8 any of their heirs, successors or assigns, nor shall such terms, provisions or conditions cause the parties to be considered joint venturers or members of any joint enterprise.

15. Indemnity of City. Owner shall defend, indemnify, and hold harmless City and its elected officials, officers, agents and employees from any actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state or local governmental agency, arising out of or incident to (i) the direct or indirect use operation, or maintenance of the Historic Property by Owner or any contractor, subcontractor, employee, agent, lessee, licensee, invitee, or any other person; (ii) Owner’s activities in connection with the Historic Property; and (iii) any restrictions on the use or development of the Historic Property, from application or enforcement of Title 29 of the City’s Municipal Code, or from the enforcement of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them.

Owner’s obligation to indemnify shall survive the termination, cancellation, or expiration of this Agreement and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents.

16. Binding Upon Successors. All of the agreements, rights, covenants, reservations and restrictions contained in this Agreement shall be binding upon and shall inure to the benefit of the parties herein, their heirs, successors, legal representatives, assigns and all persons acquiring any part or portion of the Historic Property, whether by operation of law or in any manner whatsoever.

17. Legal Costs. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants, conditions or restrictions contained herein, or to determine the rights and duties of any party

9 hereunder, the prevailing party in such proceeding may recover all reasonable attorneys’ fees to be fixed by the court, in addition to court costs and other relief ordered by the court.

18. Severability. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby.

19. Recordation. No later than twenty (20) days after the Effective Date, City shall cause this Agreement to be recorded in the office of the County Recorder of the County of Riverside.

20. Amendments. This Agreement may be amended, in whole or in part, only by written recorded instrument executed by the parties hereto.

21. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of California. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county.

10 IN WITNESS WHEREOF, City and Owner have executed this Agreement on the day and year first above written.

Dated: _______________ CITY OF PALM DESERT
By ______________________

KATHLEEN KELLY, MAYOR
ATTEST:

By ________________________________
ANTHONY J. MEJIA, CITY CLERK

CITY OF PALM DESERT, CALIFORNIA

APPROVED AS TO FORM
___

ISRA SHAH

CITY ATTORNEY
Dated: ________________ OWNER

By: ___________________________
JAMES R. SCNEPF, OWNER
By: ___________________________
CHRISTIANE N. SCHNEPF, OWNER

11 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.

State of ___________________ }
} SS.

County of __________________ }
On , 2023 , 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

12 Exhibit “A”

LEGAL DESCRIPTION OF HISTORIC PROPERTY
The following described property in the City of Palm Desert, County of Riverside, State of California:

Lot 79 and an undivided 1/24th interest in Lot 99 of Tract 3103 as shown by map on file in book 54, pages 36 to 38 inclusive of maps, records of Riverisde County, California.

Excepting therefrom all that portion in Lot 99 as conveyed to Country Club Cottages, Inc. bu deed recorded September 1, 1965 as Instrument No. 101369 of official records of Riverdside County, California.

13 Exhibit “B”
Property Maintenance Minimum Standards

1. The Historic District Property shall comply with all regulations of Title 8 and Title 9 of the Palm Desert Municipal Code, including the definition of “Good Repair” as outlined in Section 29.20 and 29.60.160;

2. The Historic Property shall continue to be maintained in a manner consistent with the level of maintenance that has customarily been employed at the property and consistent with the typical condominium development in the Palm Desert Area.

3. The Historic Property shall not have non-operational vehicles or portions of them in public view.

4. The Historic Property Shall not have stagnant or standing water.

5. The Historic Property Shall not have overgrown or decaying landscaping. All landscape features should be maintained including, but not limited to, grass, trees, and any plantings.

6. The Historic Property shall prominently display and properly maintain its City Landmark plaque.

14 Exhibit “C”
Exterior Photographs of Historic Property

15

16 Exhibit “D”
10-Year Improvement Plan

17

18

19

20

21

RESOLUTION NO. 2023-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,

CALIFORNIA, APPROVING A MILLS ACT AGREEMENT BETWEEN THE CITY AND THE OWNER OF THE PROPERTY LOCATED AT 362

SANDPIPER STREET
CASE NOS. MILLS23-0006
WHEREAS, the City Council of the City of Palm Desert is authorized by California Government Code § 50280 et seq. (known as “the Mills Act”) to enter into contracts with the owners of qualified historical properties to provide for appropriate use, maintenance, and rehabilitation such that these historic properties retain their historic characteristics; and WHEREAS, the City Council of the City of Palm Desert has adopted Resolution No. 9136 (2000 Series), establishing the Mills Act Historic Property Tax Incentive Program as an ongoing historic preservation program to promote the preservation, maintenance, and rehabilitation of historic resources through financial incentives; and WHEREAS, the City Council of the Palm Desert has designated this property as a historic resource of the City of Palm Desert pursuant to the policies in the Title 29 of the Palm Desert Municipal Code; and
WHEREAS, Fraser Living Trust is the owner of that certain qualified real property, together with associated structures and improvement thereon, located on Assessor’s Parcel Number 640-260-009, located at 362 SANDPIPER ST, in the City of Palm Desert, California; and
WHEREAS, the City and Owner, for their mutual benefit, now desire to enter into an agreement to limit the use of the property to prevent inappropriate alterations and to ensure that character-defining features are preserved and maintained in an exemplary manner, and repairs and improvements are completed as necessary to carry out the purposes of California Government Code, Chapter 1, Part 5 of Division 1 of Title 5, Article 12, Sec. 50280 et seq., and to qualify for an assessment of valuation pursuant to Article 1.9, Sec. 439 et. seq. of the Revenue and Taxation Code; and
WHEREAS, the City Council conducted a public hearing in the Council Chamber of City Hall, 73510 Fred Waring Drive, Palm Desert, California, on November 16, 2023, for the purpose of considering approval of the historic property preservation agreement, and has duly considered all evidence, and testimony of the applicant and interested parties, and the evaluation and recommendation by staff, present at said hearing; and WHEREAS, notices of said public hearings were made at the time and in the manner required by law.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:

SECTION 1. Findings. Based upon all the evidence, the City Council makes the following findings:

a) Environmental Resources Element Program 6.9.4 and 6.9.5 states that the City will require sites with significant cultural resources and structures to be preserved.
b) The subject property, located at 362 Sandpiper Street, has been recognized as a historic asset in the community by its designation as a Contributing Assess to a Historic District by the City Council Resolution No. 2022-08 on February 10, 2022. As such, maintaining the structure will meet the City’s goals for historic preservation listed in policies 6.9.4 and 6.9.5 of the Environmental Resources Element.

SECTION 2. Environmental Determination. The City Council has determined that the above actions do not constitute a project, as defined in California Environmental Quality Act Guidelines § 15378 and are not subject to environmental review.

SECTION 3. Historic Property Preservation Agreement Approved. The City Council hereby approves the Mills Act Agreement between the City of Palm Desert and the Owner of the Historic Property Located at 362 Sandpiper Street, to be entered into by the City and the property owner, Fraser Living Trust.

SECTION 4. City Manager Authorized to Sign Agreement for City. The City Council hereby authorizes the Community Development Director to execute said agreement on behalf of the Council of the City of Palm Desert.

SECTION 4. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City’s office at 73510 Fred Waring Drive, Palm Desert, CA 92260. Anthony J. Mejia, MMC, the City Clerk of the City of Palm Desert is the custodian of the record of proceedings.

SECTION 6. Effective Date. This Resolution shall become effective immediately upon its adoption.

ADOPTED ON November 16, 2023.

KATHLEEN KELLY
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK

STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.

CITY OF PALM DESERT )
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, DO HEREBY CERTIFY that the foregoing Resolution No. 23-__ was duly adopted by the City Council of the City of Palm Desert at a regular meeting held on the ___ day of November, 2023 by the following vote of the Council:

AYES:

NOES:

ABSENT:
(SEAL)
_________________________
ANTHONY J. MEJIA

CITY CLERK

RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:

City Clerk’s Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578

FOR THE BENEFIT OF THE

CITY OF PALM DESERT
- NO FEE -
6103 OF THE GOVT. CODE
(This Space for Recorder’s Use Only)

Historic Property Preservation Agreement
(“Mills Act Contract”)
Between
City of Palm Desert, California
a Municipal Corporation “City”
and

FRASER LIVING TRUST
“Owner”
Legal Description of Property
APN 640-260-009
362 SANDPIPER ST, PALM DESERT CA 92260-3420
Dated: November 16, 2023
(Resolution No. 2022-08 – Case No. CRPC22-01
Approved at the Palm Desert City Council Meeting of February 10, 2022) ____________________________________________________________________________________________________________ MILLS ACT CONTRACT APPROVED BY RESOLUTION NO. 2023-
(Title of Document)
____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________

2 HISTORIC PROPERTY PRESERVATION AGREEMENT
(“MILLS ACT CONTRACT or Agreement”)
This agreement is made this November 16, 2023, by and between the City of Palm Desert, a municipal corporation (“City”) and FRASER LIVING TRUST (“Owner”).

RECITALS

1. California Government Code section 50280, et. seq. allows cities the discretion to enter into contracts with the owners of qualified historic properties, as that term is defined in Government Code section 50280.1, for the purpose of providing for the use, maintenance, protection, and restoration of such historic property so as to retain its characteristics as property of historic significance.

2. Owner holds fee title in and to that certain real property, together with associated structures and improvements thereon, generally located at the street address 362 SANDPIPER ST, Palm Desert, California (“Historic Property”). A legal description of the Historic Property is attached hereto as Exhibit “A,” and incorporated herein by this reference.

3. On February 10, 2022, the Cultural Resources Preservation Committee and/or the City Council designated the Historic Property as an historic resource pursuant to the terms and provisions of Title 29 of the Palm Desert Municipal Code.

4. City and Owner desire to enter into this Agreement for the purpose of protecting and preserving the characteristics of historical significance of the Historic Property that help provide the community with its own unique civic identity and character.

5. Owner, in consideration for abiding by the terms of this Agreement, shall be entitled to qualify for a reassessment of valuation of the Historic Property, pursuant to the provisions of Chapter 3, Part 2, of Division 1 of the California Revenue and Taxation Code, and any corresponding adjustment in property taxes resulting therefrom.

3 TERMS NOW, THEREFORE, the City and Owner in consideration of mutual covenants and conditions set forth herein, do hereby agree as follows:

1. Effective Date and Term of Agreement. This Agreement shall be effective and commence on November 16, 2023, (“Effective Date”) and shall remain in effect for a term of ten (10) years thereafter.

2. Yearly Renewal. Each year upon the anniversary of the Effective Date (“Renewal Date”), an additional one (1) year shall automatically be added to the remaining term of the Agreement unless a notice of nonrenewal is delivered as provided in Section 3 of this Agreement.

3. Nonrenewal. If either the Owner or City desires in any year not to renew this Agreement, Owner or City shall serve a written notice of nonrenewal upon the party in advance of the Renewal Date (“Notice of Nonrenewal”). The Notice of Nonrenewal shall be effective only if served by Owner upon City at least ninety (90) days prior to the Renewal Date, or if served by City upon Owner, the Notice of Nonrenewal shall be effective only if served upon Owner at least sixty (60) days prior to the Renewal Date. If either City or Owner serves a Notice of Nonrenewal in any year, this Agreement shall remain in effect for the balance of the term then remaining.

4. Owner Protest of City Nonrenewal. Within fifteen (15) days of Owner’s receipt of the Notice of Nonrenewal from City, Owner may file with City a written protest of the Notice of Nonrenewal. Upon receipt of the written protect, the City Council shall set a hearing prior to the expiration of the Renewal Date of this Agreement. Owner may furnish the City Council with any information which Owner deems relevant and shall furnish the City Council with any information it may require.

The City Council may, at any time prior to the annual Renewal Date, withdraw its Notice of Nonrenewal.

5. Standards for Historical Property. During the term of this Agreement, the Historic Property shall be subject to the following conditions, requirements, and restrictions:

4 A. Owner shall preserve and maintain the characteristics of the cultural and historical significance of the Historic Property. Attached hereto as Exhibit “B,” and incorporated herein by this reference, is a list of the minimum standards and conditions for maintenance, use, protection, and preservation of the Historic Property, which shall apply to the Historic Property and be complied with by Owner throughout the term of this Agreement. In addition, Owner shall comply with the terms of the City’s Cultural Resources Ordinance 1168 (Title 29 of the Palm Desert Municipal Code), and shall obtain any applicable permits necessary to protect, preserve, restore, and rehabilitate the Historic Property so as to maintain its historical and cultural significance.

B. Owner shall, where necessary, repair, maintain, restore, and rehabilitate the Historic Property according to the rules and regulations of the Office of Historic Preservation of the State Department of Parks and Recreation and the City of Palm Desert. The condition of the exterior of the Historic Property on the effective date of this Agreement is documented in photographs attached as Exhibit “C” and incorporated herein by this reference. At a minimum, Owner shall continually maintain the exterior of the Historic Property in the same condition as documented in Exhibit “C.”
C. Owner shall carry out specific restoration, repair, maintenance, and/or rehabilitation projects on the Historic Property, as outlined in the attached Exhibit “D,” which is incorporated herein by this reference. All such projects shall be undertaken and completed in accordance with the Secretary of Interior Standards for Rehabilitation and the City of Palm Desert design guidelines.

D. Owner shall not be permitted to block the view corridor with any new structure, such as walls, fences, or shrubbery, so as to prevent the viewing of the Historic Property from the public right-of-way.

5 6. Periodic Examinations. Upon reasonable advance notice, Owner shall allow reasonable periodic examinations of the interior and exterior of the Historic Property by representatives of the County Assessor, the State Department of Parks and Recreation, the State Board of Equalization and/or City, as may be necessary to determine Owner’s compliance with the terms and provisions of this Agreement. City shall inspect Historic Property prior to entering into this Agreement and at least every five years thereafter to determine Owner’s continued compliance with Agreement.

7. Provision of Information of Compliance. Owner hereby agrees to furnish City with any and all information requested by City, which City deems necessary or advisable to determine eligibility of the Historic Property and compliance with the terms and provisions of this Agreement.

8. Breach of Agreement; Remedies.

A. Notice of Breach; Opportunity to Cure. If Owner breaches any provision of this Agreement, City may give written notice to Owner by registered or certified mail detailing Owner’s violations. If such violation is not corrected to the reasonable satisfaction of City within thirty (30) days after the date of notice of violation, or within such a reasonable time as may be required to cure the violation (provided the acts to cure the violation are commenced within thirty (30) days and thereafter diligently pursued to completion), the City may, without further notice, declare Owner to be in breach of this Agreement. Upon City’s declaration of Owner’s breach, City may pursue any remedy available under local, state, or federal law, including those specifically provided for in this section.

B. Remedy - Cancellation. City may cancel this Agreement if City determines, following a duly noticed public hearing in accordance with Government Code section 50286, that Owner breached any of the conditions of the Agreement, Owner allowed the Historic Property to deteriorate to the point that it no longer meets the standards for a

6 qualified historic property, or Owner failed to maintain and preserve the Historic Property in accordance with the terms of this Agreement. If this Agreement is cancelled, under this paragraph, Owner shall pay a cancellation fee to the Office of the Auditor for the County of Riverside as required by Government Code section 50286.

C. Alternative Remedies. As an alternative to cancellation of this Agreement for Owner’s breach of any condition, City may bring an action in court necessary to enforce this Agreement including, but not limited to, an action to enforce this Agreement by specific performance, injunction, or receivership.

9. Destruction of Property; Eminent Domain; Cancellation. If the Historic Property is destroyed by earthquake, fire, flood, or other natural disaster such that in the opinion of the City Building Official more than sixty percent (60%) of the original fabric of the structure must be replaced, this Agreement shall be cancelled because the historic value of the structure will have been destroyed. If the Historic Property is acquired in whole or in part by eminent domain or other acquisition by any entity authorized to exercise the power of eminent domain, and the acquisition is determined by the City Council to frustrate the purpose of this Agreement, this Agreement shall be cancelled. No cancellation fee pursuant to Government Code section 50286 shall be imposed if the Agreement is cancelled pursuant to this Section.

10. Waiver. City does not waive any claim of default by Owner if City does not enforce or cancel this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City’s regulations governing historic properties are available to the City to pursue in the event that there is a reach of this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.

11. Binding Effect of Agreement. Owner hereby subjects the Historic Property to the covenants, conditions, and restrictions set forth in this Agreement. City and Owner hereby declare their specific intent that the covenants, conditions, and

7 restrictions set forth herein shall be deemed covenants running with the land and shall inure to and be binding upon Owner’s successors and assigns in title or interest to the Historic Property. Each and every contract, deed or other instrument herein after executed, covering or conveying the Historic Property, or any portion thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions are set forth in such contract, deed or other instrument.

12. Covenants Run with the Land. City and Owner hereby declare their understanding and intent that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that it restricts development of the Historic Property. City and Owner hereby further declare their understanding and intent that the benefit of such covenants, reservations and restrictions touch and concern the land by enhancing and maintaining the cultural and historical characteristics and significance of the Historic Property for the benefit of the public and the Owner.

13. Notice. Any notice required to be given by the terms of this Agreement shall be provided at the address of the respective parties as specified below or at any other address as may be later specified by the parties hereto:

City: City of Palm Desert
Planning Division
73-510 Fred Waring Drive
Palm Desert, CA 92260
Owner: FRASER LIVING TRUST
362 SANDPIPER ST,
PALM DESERT CA 92260-3420 C035

14. Effect of Agreement. None of the terms, provisions or conditions of this Agreement shall be deemed to create a partnership between the parties hereto and any of their heirs, successors or assigns, nor shall such terms, provisions or conditions cause the parties to be considered joint venturers or members of any joint enterprise.

8 15. Indemnity of City. Owner shall defend, indemnify, and hold harmless City and its elected officials, officers, agents and employees from any actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state or local governmental agency, arising out of or incident to (i) the direct or indirect use operation, or maintenance of the Historic Property by Owner or any contractor, subcontractor, employee, agent, lessee, licensee, invitee, or any other person; (ii) Owner’s activities in connection with the Historic Property; and (iii) any restrictions on the use or development of the Historic Property, from application or enforcement of Title 29 of the City’s Municipal Code, or from the enforcement of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them.

Owner’s obligation to indemnify shall survive the termination, cancellation, or expiration of this Agreement and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents.

16. Binding Upon Successors. All of the agreements, rights, covenants, reservations and restrictions contained in this Agreement shall be binding upon and shall inure to the benefit of the parties herein, their heirs, successors, legal representatives, assigns and all persons acquiring any part or portion of the Historic Property, whether by operation of law or in any manner whatsoever.

17. Legal Costs. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants, conditions or restrictions contained herein, or to determine the rights and duties of any party hereunder, the prevailing party in such proceeding may recover all reasonable

9 attorneys’ fees to be fixed by the court, in addition to court costs and other relief ordered by the court.

18. Severability. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby.

19. Recordation. No later than twenty (20) days after the Effective Date, City shall cause this Agreement to be recorded in the office of the County Recorder of the County of Riverside.

20. Amendments. This Agreement may be amended, in whole or in part, only by written recorded instrument executed by the parties hereto.

21. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of California. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county.

10 IN WITNESS WHEREOF, City and Owner have executed this Agreement on the day and year first above written.

Dated: _______________ CITY OF PALM DESERT
By ______________________

KATHLEEN KELLY, MAYOR
ATTEST:

By ________________________________
ANTHONY J. MEJIA, CITY CLERK

CITY OF PALM DESERT, CALIFORNIA

APPROVED AS TO FORM
___

ISRA SHAH

CITY ATTORNEY
Dated: ________________ OWNER

By: ___________________________

BARBARA FRASER, OWNER
By: ___________________________

BRENT FRASER, OWNER
By: ___________________________
OWNER

11 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.

State of ___________________ }
} SS.

County of __________________ }
On , 2023 , 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

12 Exhibit “A”

LEGAL DESCRIPTION OF HISTORIC PROPERTY

13 Exhibit “B”
Property Maintenance Minimum Standards

1. The Historic District Property shall comply with all regulations of Title 8 and Title 9 of the Palm Desert Municipal Code, including the definition of “Good Repair” as outlined in Section 29.20 and 29.60.160;

2. The Historic Property shall continue to be maintained in a manner consistent with the level of maintenance that has customarily been employed at the property and consistent with the typical condominium development in the Palm Desert Area.

3. The Historic Property shall not have non-operational vehicles or portions of them in public view.

4. The Historic Property Shall not have stagnant or standing water.

5. The Historic Property Shall not have overgrown or decaying landscaping. All landscape features should be maintained including, but not limited to, grass, trees, and any plantings.

6. The Historic Property shall prominently display and properly maintain its City Landmark plaque.

14 Exhibit “C”
Exterior Photographs of Historic Property

15 Exhibit “D”
10-Year Improvement Plan

16

17

18

19

RESOLUTION NO. 2023-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,

CALIFORNIA, APPROVING A MILLS ACT AGREEMENT BETWEEN THE CITY AND THE OWNER OF THE PROPERTY KNOW AS THE “CHARLES E.

DU BOIS HOME”LOCATED A 72806 BURSERA WAY
CASE NOS. MILLS23-0007
WHEREAS, the City Council of the City of Palm Desert is authorized by California Government Code § 50280 et seq. (known as “the Mills Act”) to enter into contracts with the owners of qualified historical properties to provide for appropriate use, maintenance, and rehabilitation such that these historic properties retain their historic characteristics; and WHEREAS, the City Council of the City of Palm Desert has adopted Resolution No. 9136 (2000 Series), establishing the Mills Act Historic Property Tax Incentive Program as an ongoing historic preservation program to promote the preservation, maintenance, and rehabilitation of historic resources through financial incentives; and WHEREAS, the City Council of the Palm Desert has designated this property as a historic resource of the City of Palm Desert pursuant to the policies in the Title 29 of the Palm Desert Municipal Code; and
WHEREAS, Toltzmann David R And Ludwig Steven D are the owners of that certain qualified real property, together with associated structures and improvement thereon, located on Assessor’s Parcel Number 628-102-012, located at 72806 Bursera Way, in the City of Palm Desert, California; and
WHEREAS, the City and Owner, for their mutual benefit, now desire to enter into an agreement to limit the use of the property to prevent inappropriate alterations and to ensure that character-defining features are preserved and maintained in an exemplary manner, and repairs and improvements are completed as necessary to carry out the purposes of California Government Code, Chapter 1, Part 5 of Division 1 of Title 5, Article 12, Sec. 50280 et seq., and to qualify for an assessment of valuation pursuant to Article 1.9, Sec. 439 et. seq. of the Revenue and Taxation Code; and
WHEREAS, the City Council conducted a public hearing in the Council Chamber of City Hall, 73510 Fred Waring Drive, Palm Desert, California, on November 16, 2023, for the purpose of considering approval of the historic property preservation agreement, and has duly considered all evidence, and testimony of the applicant and interested parties, and the evaluation and recommendation by staff, present at said hearing; and WHEREAS, notices of said public hearings were made at the time and in the manner required by law.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:

SECTION 1. Findings. Based upon all the evidence, the City Council makes the following findings:

a) Environmental Resources Element Program 6.9.4 and 6.9.5 states that the City will require sites with significant cultural resources and structures to be preserved.
b) The subject property, located at 72806 Bursera Way, know as the “Charles E.

Du Bois Home”, has been recognized as a historic asset in the community by its designation as a Contributing Assess to a Historic District by the City Council Resolution No. 2022-95 on November 17, 2022. As such, maintaining the structure will meet the City’s goals for historic preservation listed in policies

6.9.4 and 6.9.5 of the Environmental Resources Element.

SECTION 2. Environmental Determination. The City Council has determined that the above actions do not constitute a project, as defined in California Environmental Quality Act Guidelines § 15378 and are not subject to environmental review.

SECTION 3. Historic Property Preservation Agreement Approved. The City Council hereby approves the Mills Act Agreement between the City of Palm Desert and the Owners of the Historic Property Located at 72806 Bursera Way, to be entered into by the City and the property owner, Toltzmann David R And Ludwig Steven D.

SECTION 4. City Manager Authorized to Sign Agreement for City. The City Council hereby authorizes the Community Development Director to execute said agreement on behalf of the Council of the City of Palm Desert.

SECTION 4. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City’s office at 73510 Fred Waring Drive, Palm Desert, CA 92260. Anthony J. Mejia, MMC, the City Clerk of the City of Palm Desert is the custodian of the record of proceedings.

SECTION 6. Effective Date. This Resolution shall become effective immediately upon its adoption.

ADOPTED ON November 16, 2023.

KATHLEEN KELLY
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK

STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.

CITY OF PALM DESERT )
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, DO HEREBY CERTIFY that the foregoing Resolution No. 23-__ was duly adopted by the City Council of the City of Palm Desert at a regular meeting held on the ___ day of November, 2023 by the following vote of the Council:

AYES:

NOES:

ABSENT:
(SEAL)
_________________________
ANTHONY J. MEJIA

CITY CLERK

RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:

City Clerk’s Office
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578

FOR THE BENEFIT OF THE

CITY OF PALM DESERT
- NO FEE -
6103 OF THE GOVT. CODE
(This Space for Recorder’s Use Only)

Historic Property Preservation Agreement
(“Mills Act Contract”)
Between
City of Palm Desert, California
a Municipal Corporation “City”
and

TOLTZMANN DAVID R/LUDWIG STEVEN D
“Owner”
Legal Description of Property
APN (628-102-012)
72806 BURSERA WAY, PALM DESERT, CA 92260-5702
LOT 2 MB 034/087 PALM DESERT UNIT 12
Dated: November 16, 2023
(Resolution No. 2022-95 – Case No. CRPC 23-03
Approved at the Palm Desert City Council Meeting of November 17, 2022) MILLS ACT CONTRACT APPROVED BY RESOLUTION NO. 2023-
(Title of Document)

2 HISTORIC PROPERTY PRESERVATION AGREEMENT
(“MILLS ACT CONTRACT or Agreement”)
This agreement is made this November 16, 2023, by and between the City of Palm Desert, a municipal corporation (“City”) and TOLTZMANN DAVID R/LUDWIG STEVEN D (“Owner”).

RECITALS

1. California Government Code section 50280, et. seq. allows cities the discretion to enter into contracts with the owners of qualified historic properties, as that term is defined in Government Code section 50280.1, for the purpose of providing for the use, maintenance, protection, and restoration of such historic property so as to retain its characteristics as property of historic significance.

2. Owner holds fee title in and to that certain real property, together with associated structures and improvements thereon, generally located at the street address 72806 BURSERA WAY, Palm Desert, California (“Historic Property”). A legal description of the Historic Property is attached hereto as Exhibit “A,” and incorporated herein by this reference.

3. On November 17, 2022, the Cultural Resources Preservation Committee and/or the City Council designated the Historic Property as an historic resource pursuant to the terms and provisions of Title 29 of the Palm Desert Municipal Code.

4. City and Owner desire to enter into this Agreement for the purpose of protecting and preserving the characteristics of historical significance of the Historic Property that help provide the community with its own unique civic identity and character.

5. Owner, in consideration for abiding by the terms of this Agreement, shall be entitled to qualify for a reassessment of valuation of the Historic Property, pursuant to the provisions of Chapter 3, Part 2, of Division 1 of the California Revenue and Taxation Code, and any corresponding adjustment in property taxes resulting therefrom.