Carrie Kropfl, Appellant, provided closing remarks; stated she represents the innocent victims; urged the City prepare a disclosure form for short-term rental operators and renters, and send a cease and desist letter to Monterey Country Club property management.
Carrie Kropfl, Appellant, provided closing remarks; voiced support for allowing potential renters to sign a disclosure form regarding the use of a den as a sleeping room; asserted that other communities have advertised dens attached to an atrium as bedrooms and that Coachella Valley cities need to address false advertising, including the City of Palm Desert issuing a cease and desist letter to the Monterey County Club management; opined that the City’s interpretation will impact not only vacation rental owners but also all properties with a similar floorplan, leading to a reduction of a bedroom and decreased property values.
ITEM 13b: APPROVAL OF WARRANT REGISTERS
Q1: Where is the $13 million coming from to buy the parcels? (Page 43) A1:The sale of the property at Desert Willow (DW) is $4.6 million. That’s the only amount coming from the City. There are a few transactions happening in this one register:
1. The City is buying the property (DW Parking Lot) from the SARDA at Fair Market Value ($4.6M) from our Golf Amenity Fees - Capital Funds (441) with the first wire - #57353787.
2. The 2nd and 3rd wires are a result of staff reaching out to the County due to a stale dated check.
The County of Riverside lost the SARDA check ($4.4M) related to the sale of land from SARDA to Vitalia/Pacific West for affordable housing, so we canceled payment and reissued wire #71465195. The additional $16k, was a separate part of that transaction as well - #71465387.
3. The SARDA then sent the $4.6M proceeds (DW Parking Lot) to the County of Riverside for distribution to the various taxing entities - #72032577.
Ultimately, the City (as a taxing entity) will receive a small apportionment from each of these transactions. Those proceeds are then deposited into the Economic Development Fund upon receipt.
ITEM 13g: ADOPT RESOLUTION OPTING INTO SETTLEMENT AGREEMENT WITH
DISTRIBUTORS OF OPIOIDS, GROCERY CHAIN KROGER, AND FUTURE PROPOSED
OPIOD SETTLEMENTS
Q1: What is the estimated amount that the City is expected to receive from this settlement? A1: Based on the amount awarded to the State of California and our other settlement allocations, an estimate could be around $40,000 disbursed over 11 years. 164
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ITEM 13j: AWARD CONTRACT TO PBK ARCHITECTS, INC., FOR ARCHITECTURAL DESIGN SERVICES OF FIRE STATION 33 AND 71 (CFA00017 & CFA00019) Q1: This item includes the recommendation to demolish and rebuild Station 71. Is this item intended to approve that recommendation? If so, could you provide more information on the following aspects:
a. What is the justification for this recommendation given that a rebuild costs $1,272,905 more than renovation?
b. What is the plan for timing and provision of services during the demolition and rebuild process?
c. How will service disruptions be managed, considering that renovations can be done in stages to minimize disruptions, whereas demolition and rebuild inherently include delays? A1: Staff estimates that the construction will take approximately 12-14 months. The current plan involves setting up temporary housing for both Fire Stations during this period to minimize impacts on response times. We considered moving staff to other Fire Stations and having FS 102 assist with calls from FS 67. However, current trends indicate that assistance from FS 102 to FS 71 will be limited. CalFire Chiefs support the recommendation for temporary housing.
FS 33 has ample space to accommodate a temporary site. However, FS 71 is located on a small parcel, making it impossible to host temporary housing and construction activities simultaneously.
Therefore, staff is exploring nearby city-owned lots for temporary housing, bays, and equipment during construction. The goal is to minimize impacts on response times as much as possible. Staff will continue to adjust this plan as the design progresses.
The renovations will involve the demolition and structural reconfiguration of the building's interior, making it unsafe for Cal Fire staff to work in the building during construction.
ITEM 13k: AWARD ON-CALL CONTRACTS TO MULTIPLE VENDORS FOR PARK AND
FACILITIES REPAIRS AND IMPROVEMENT PROJECTS
Q1: What has been the budgeted dollar amount for these CIP projects in previous years? This year's budget is $5.3 million.
A1: Although the on-call facilities maintenance and repair agreements can be utilized to complete task orders for capital projects, staff primarily utilize the agreements to accomplish updates on deferred maintenance or minor repair projects as needed. The budget for these agreements includes both capital and operations funding.
Previous fiscal years’ Park and Facilities CIP project budgets are below:
• Fiscal Year 24/25 $5.3 Million
• Fiscal Year 23/24 $4.0 Million, increased to $5.7
• Fiscal Year 22/23 $3.5 Million
• Fiscal Year 21/22 $2.0 Million
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ITEM 13l: AWARD CONTRACT NO. C47680 TO JACOBSSON ENGINEERING CONSTRUCTION, INC., FOR THE EL PASEO CURB RAMP MODIFICATION PROJECT (PROJECT CST00025)
Q1: Can you provide the additional cost of undertaking this project as a standalone effort compared to incorporating it into the overall repaving scheduled for 2025? A1: Staff did not anticipate additional costs would be incurred by the City from splitting the project into two phases. The concrete work that will be constructed in Phase I of the project is typically performed by a subcontractor and the prime contractor marks up the subcontractors bid 10-15% to cover administration expenses related to the subcontract. By bidding the concrete work and the asphalt work separately staff expects the markup will be eliminated.
Q2: This item refers to curb and gutter work intended to be completed "in the summer of 2024." As it is now July 10th, could you please provide an updated timetable for this work? Given the current date, is it still feasible to complete the project within the summer timeframe? A2: The project will begin construction by August 1, 2024, and will be completed by September 15, 2024.The intent is to complete the project before the beginning of the busy season.
ITEM 13n: REJECT ALL PROPOSALS SUBMITTED FOR COURTESY PATROL SERVICES AT THE
HOUSING AUTHORITY PROPERTIES
Q1: Why did Courtesy Patrol Services decline to renew their contract? A1: The current service provider indicated that they are facing difficulties in securing the necessary insurance coverage, which has been an ongoing issue.
ITEM 13o: REJECT ALL BIDS, APPROPRIATE FUNDS, AUTHORIZE THE CITY MANAGER TO
AWARD A CONTRACT FOR THE CIVIC CENTER PARKING LOT REHABILITATION PROJECT IN AN AMOUNT NOT TO EXCEED $600,000
Q1: is this project for repaving or resealing/slurry?
A1: The entry/exit drive at Fred Waring is a re-pave, while the rest of the parking lot will be repaired as needed and slurry sealed. There is also a crosswalk near the Desert Recreation building that will be replaced with concrete. Please reference the “Area of Work Aerial” for further clarification.
ITEM 13s: APPROVE CONTRACT WITH FEHR & PEERS FOR THE PREPARATION OF A
GENERAL PLAN AMENDMENT TO THE MOBILITY ELEMENT IN AN AMOUNT NOT TO EXCEED $139,076 AND APPROPRIATE FUNDS
Q1: Can the language of the deliverables in Task 6 be revised to align with the broader scope described in the staff report, ensuring it includes collaboration with SunLine Transit Agency for a variety of public transit solutions, not just the evaluation of existing and proposed bus lines?
A1: This action will be included in Task 6 of the Scope of Work found in Exhibit A of the Professional Services Agreement. The formatting and text of the agreement for Task 6 has been revised to add a new bullet point for "Collaboration with SunLine Transit Agency ("STA") for a variety of public transit solutions". This will be in addition to the deliverable item for evaluation of existing and proposed bus lines. Staff has also revised task 3.1 to require collaboration with STA. 166
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ITEM 14d: CONSIDERATION FOR APPROVAL OF A PORTION OF PUBLIC RIGHT-OF-WAY (EXPLORER DRIVE) IS “EXEMPT SURPLUS LAND” PURSUANT TO GOVERNMENT CODE SECTION 54221
Q1: Is this decision consistent with our previous surplus land/right-of-way decision that we voted on in South Palm Desert a few months ago?
A1: There is a small sliver of property that was missed in the original land sale to Refuge that needs to be addressed. Therefore, this portion of the city right-of-way was not in the City’s Central Inventory. The process will be consistent with the Surplus Land Act (SLA) requirements. Once the SLA process is cleared, the same per square foot charge will be applied to this property as was used in the initial sale.
ITEM 14e: ADOPT RESOLUTION APPROVING FINAL TRACT MAP NO. 38434-1 AND
AGREEMENTS
Q1: Could you provide the zoning rules that applied to the vacant land at the time when the property was developed and homes were sold on the south border of this development? Specifically, what was the maximum allowable height? Additionally, if there have been any changes to these zoning rules, when did they occur?
A1: In October 1995, during the original approval of residential Tract 28258, the vacant land ("Refuge Site") was designated PR-5 (Planned Residential 5 dwelling units/acre). The PR zoning designation allowed buildings up to two-stories with a maximum height of 24', with a minimum setback of 100' from the project perimeter for all two-story, detached, single-family structures.
In June 2012, as a requirement of State Housing Element law, the City approved a change of zone for a 38-acre portion of the Refuge Site from PR-5 to Planned Residential 20 dwelling units per acre (PR-20). The development standards for the PR zoning district did not substantially change until 2017.
In August 2017, as a part of a general plan consistency update, the City approved a change of zone for the entire vacant Refuge Site to PR-20 and amended the PR zoning district to allow threestory buildings with a maximum height to 40'-0", with a minimum setback of 100' from the project perimeter for all two-story, detached, single-family structures. 167
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CITY OF PALM DESERT
PROFESSIONAL SERVICES AGREEMENT
1. Parties and Date. This Agreement is made and entered into this 11th day of July, 2024, 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 (“City”) and FEHR & PEERS an S Corporation, with its principal place of business at 100 PRINGLE AVENUE, SUITE 600, WALNUT CREEK, CA 94596("Consultant").
The 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:
Amendment of the Palm Desert Mobility (Circulation) Element of the General Plan (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 supply the services for the Project ("Services") as 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 July 1, 2024, to June 30, 2025, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than TWO additional one-year terms. Contractor 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 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 07/11/2024
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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 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 as expeditiously as is required by the Schedule of Services and the standard of care applicable to Consultant’s Services. Upon reasonable 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 in accordance with this Agreement .
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: JASON D. PACK.
3.2.5 City's Representative. The City hereby designates Nick Melloni, Principal Planner, or his/her 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 JASON D. PACK, or his/her 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 exercising that degree of care, skill, and diligence ordinarily exercised by professionals performing similar services in the same or similar locale and under similar circumstances that of Consultant under this Agreement . 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 169
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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 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; (5) pandemics, epidemics or quarantine restrictions; or (6) any other causes beyond the reasonable control of the defaulting or delayed Party. 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 shall be grounds for the City to terminate the Agreement for cause. 170
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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. (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 171
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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.
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. (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 172
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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 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 173
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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.
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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 ONE HUNDRED, AND THIRTY-NINE THOUSAND AND SEVENTY-SIX DOLLARS ($139,076) 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. 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 from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
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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 performed in accordance with this Agreement to the date of termination, 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 of Services under this Agreement. Consultant shall be required to provide such document and 176
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other information within fifteen (15) days of the request, provided, however, City pays Consultant for its Services performed in accordance with this Agreement.
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 performed in accordance with this Agreement y, 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: FEHR & PEERS
3750 UNIVERSITY AVENUE, SUITE 225
RIVERSIDE, CA 92501
ATTN: JASON D. PACK, PRINCIPAL
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
ATTN: Nick Melloni, Development Services Department
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 177
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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 the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 178
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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 reasonable 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 negligent 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 reasonable 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 to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 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.
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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 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 180
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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 FEHR & PEERS
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:
Isra Shah
Best Best & Krieger LLP
City Attorney
FEHR &PEERS, an S Corporation
By:
Sarah Brandenberg
Vice President
By:
Lysa Wollard
Chief Financial Officer / Treasurer
QC: MN
Insurance:
_________
Initial Review
_________
Final Approval
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Exhibit “A”
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EXHIBIT “A”
SCOPE OF SERVICES
The Consultant shall provide full professional services to assist the City of Palm Desert Development Services Staff with an update of the City’s Circulation Element, also known as the Mobility Element of the General Plan.
Task 1: Project Management
Task 1.1: Kick-Off Meeting
The consultant will work with the City’s Project Manager to schedule a project kickoff meeting.
The consultant will prepare a draft agenda to discuss the project schedule and goals, and to confirm the approach to the transportation technical analyses, including travel demand modeling assumptions, roadway network scenarios, and the analysis scenario years. The team will also discuss available data sources and traffic count locations. Additionally, the consultant will discuss contract management and invoicing to ensure timely submittal pf invoices in accordance with City requirements.
Task 1.2: Regular Project Meetings
Recurring monthly meetings will be scheduled between the consultant and City staff to review analyses, deliverables, discuss findings, raise any issues or concerns, and provide an update on next steps.
Task 1.3: Contract Management
The consultant will submit monthly progress reports and invoices. The progress reports will recap work associated with the monthly invoice.
Task 1 Deliverables:
1.Kick-Off Meeting Agenda, including project schedule, data needs, regular status updates/meetings, and invoicing.
2.Monthly check-in calls/meetings (agendas and meeting minutes will be provided).
3.Monthly invoices and progress reports.
Task 2: Existing Conditions
Task 2.1: Data Collection and Review
The consultant’s initial review will include a review of relevant documents including the current General Plan, recent CEQA documents, regional planning documents (such as the Congestion Management Plan (CMP), Regional Transportation Plan (RTP), Area and Specific Plans, documents prepared by CVAG, local transit/active transportation plans, recent traffic impact studies prepared for new development, and any other planning documents that would provide additional information relative to the Circulation Update effort. The purpose of this review is to identify existing data needs and determine which of the previous data collection and mapping efforts can be employed in this analysis.
Task 2.2: Existing Conditions Assessment
Using the data collected in Task 2.1, a background technical report will be prepared documenting existing conditions in the area. This will include a regulatory context summarizing recent legislative requirements the General Plan should consider, existing roadway network classifications, existing and proposed active transportation facilities, transit service, existing truck and rail facilities, and relevant census information such as commute trip information, mode split information, and relative locations of where Palm Desert residents work and vice versa. Key issues and opportunities will be documented in this report. This report will also summarize the Streetlight traffic count data on study roadway segments and will highlight areas where traffic counts have changed significantly since the 2016 assessment was completed. 183
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The consultant will prepare a draft background technical report and submit it to the City for one round of consolidated comments.
Task 2.3: Safety Assessment
The consultant will analyze publicly available collision information to summarize roadway collision trends that will assist in identifying a High Injury Network (HIN) as required by SB 932. This HIN network will be used to supplement and inform policies in this element update. The consultant will also work with the City to better understand and reference the City’s Vision Zero Strategy study.
These findings will be provided in a series of charts that will be included in the existing conditions background technical report.
Task 2.4: Update Travel Demand Model
The consultant will utilize either the latest version of the RIVCOM travel demand model or the previously developed City model for this effort. Next, any proposed changes in land use and the roadway network will be updated in the model. The model will be used to compare the Adopted General Plan Circulation Element and the proposed Circulation Element Update with any associated land use changes.
It is anticipated that this traffic model will be employed for the following purposes:
•Testing roadway network and classification alternatives •Analyzing the level of service at study roadway segments •Forecasting VMT for the City using a couple of different methods. This can be used to better understand how VMT can/should be incorporated into the City’s policy document and to help inform VMT guidelines for the City.
Task 2 Deliverables:
1.List and map of study segments for Streetlight data collection
2.Draft background technical report, including safety assessment
3.Final background technical report, including safety assessment Task 3: Alternatives Development
Task 3.1: Engagement & Coordination
The consultant will meet with City Staff, and other agencies, to review transportation network issues and needs based on existing and expected network operations. This engagement must include collaboration SunLine Transit Agency for a variety of public transit solutions. Additionally, the consultant will hold one council workshop to review current issues and potential opportunities with various stakeholders.
Task 3.2: Roadway Network Alternatives Development
It is anticipated that up to two (2) proposed alternatives will be developed consisting of roadway network, lane, classification, and/or truck routing changes. The updated travel demand model will be used to determine a single preferred roadway network alternative for a future year model. The consultant will discuss with City Staff the appropriate approach to developing forecasts for this effort.
Task 3 Deliverables:
1. Council issues and opportunities workshop materials and attendance
2. Memorandum documenting input from stakeholders, proposed alternatives, and VMT differences for each alternative
Task 4: SB 743 Transportation Impact Assessment Guidelines The consultant shall prepare updated Transportation Study Guidelines that cover both the CEQA requirements under SB 743, as well as the City’s desire to maintain Level of Service (LOS) requirements. The consultant will review the City’s current Transportation Study Guidelines and state requirements provided by the Governor’s Office of Planning and Research. 184
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The consultant will prepare detailed guidelines that explain how to prepare a VMT assessment for screening out projects, as well as how to prepare a VMT analysis for projects that do not screen out. The consultant will also work with City Staff to identify areas of the City where the LOS expectations may need to change. Changes will be incorporated into the Transportation Study Guidelines. Maps will be prepared to identify development locations that screen out of VMT assessment.
Task 4 Deliverables:
1.Draft Transportation Study Guidelines
2.Final Transportation Study Guidelines
Task 5: Roadway Network Recommendations
Task 5.1: Roadway Network Alternatives Modeling
The consultant will model up to two roadway network changes. As part of this exercise, they will calculate the VMT changes associated with the roadway network alternatives.
Task 5.2: Roadway Classifications and Roadway Network Recommendations The consultant will review the results of the alternative roadway network analyses and develop recommendations for altering functional operations and mobility within each roadway classification. These recommendations may consist of changes to roadway classifications or network changes, such as vacating roadway segments, adding or reducing capacity to existing roadways, and/or safety or operational improvements. These changes will consider potential effects on other transportation modes, such as pedestrians, bicyclists, and public transit. The consultant will also review existing truck routes and recommend changes to support industrial development and goods movement. Changes will also include a review of roadway cross-sections to ensure consistency within the General Plan (e.g. consistency with the area plans within the document) and consistency with other planning documents in the City (like the ATP).
Task 5 Deliverables:
1.Draft Technical Memorandum recommending changes to roadway classifications and/or the City roadway network
2.VMT modeling showing change in VMT
3. Present proposed changes (a PowerPoint presentation and present at one (1) meeting)
4.Final Technical Memorandum recommending changes to roadway classifications and/or the City roadway network with input from meeting incorporated per City Staff’s direction Task 6: Circulation Element Update:
Based on recommendations provided in Task 5 and discussions with City Staff, the consultant will develop an initial set of transportation policies related to various items for incorporating into the Circulation Element Update, including but not limited to:
•VMT transportation impacts
•Level of Service (LOS)
•Maximum allowable roadway cross sections
•Consistency with other state laws (e.g. SB 330, SB 35) •Coachella Valley Passenger Rail Service
•Transit System including an evaluation of existing and proposed transit lines •Collaboration with SunLine Transit Agency for a variety of public transit solutions •Transportation Demand Management (TDM)
•Safety and Vision Zero Strategies
•Emergency Evacuation Routes
These policy changes will address changes in state law, specifically AB 1358 (Complete Streets requirement), SB 932 (Safe Systems and Vision Zero Approach requirement), SB 743, and SB 330 (clarifying roadway improvement requirements for new housing developments). 185
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The consultant will develop the initial policies and present these policies to City Staff for review.
The consultant will combine the information developed in the previous tasks into a comprehensive Circulation Element (including text, graphics, and policies). An implementation matrix will also be prepared to align action steps with added and edited policies.
Task 6 Deliverables:
1Draft Circulation Element Update and Implementation Matrix
2.Final Circulation Element Update Implementation Matrix Task 7: CEQA
The focus of the project will be to update the Circulation Element of the General Plan to create better guidance on meeting Vehicle Miles Travelled (VMT) reductions, improve safety by incorporating Vision Zero, and review of the policies to ensure they meet the needs of the City.
The project consultant shall prepare the necessary documentation to ensure compliance with the California Environmental Quality Act (CEQA). The Consultant shall prepare necessary steps for compliance with Senate Bill-18 Tribal Consultation. Completion of the SB 18 process is needed prior to acting on the project.
This scope does not include:
•Public distribution of document
•Attendance at public hearings
•Copies
•Filing fees
•Technical studies (i.e. traffic, AQ, GHG, Noise)
Task 7 Deliverables:
1.Administrative Draft and Public Draft Addendum, SB-18 Tribal Consultation Letters, Notice of Determination, Notice of Completion.
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Exhibit “B”
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EXHIBIT "B"
SCHEDULE OF SERVICES
(SEE FOLLOWING PAGE)
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Exhibit “C”
Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT "C"
COMPENSATION
In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be increased or reduced each year at the time of renewal, but any increase shall not exceed the Consumer Price Index, All Urban Consumers, Riverside-San Bernardino-Ontario, CA. (SEE FOLLOWING PAGE)
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CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Michelle Nance, Deputy Clerk II
REQUEST: ADOPTION OF ORDINANCE NO. 1415 AMENDING PALM DESERT MUNICIPAL CODE CHAPTER 2.36, PROCEDURES FOR THE CONDUCT
OF MEETINGS
RECOMMENDATION:
Adopt Ordinance No. 1415 entitled, “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PALM DESERT, CALIFORNIA, AMENDING PALM DESERT MUNICIPAL CODE CHAPTER
2.36, PROCEDURES FOR THE CONDUCT OF MEETINGS”
BACKGROUND/ANALYSIS:
On June 27, 2024, the City Council unanimously introduced Ordinance No. 1415 for first reading.
This report provides for the City Council to waive further reading and adopt the ordinance. The ordinance shall be effective 30 days from adoption.
FINANCIAL IMPACT:
There is no direct financial impact with this action.
ATTACHMENTS:
Ordinance No. 1415
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190
ORDINANCE NO. 1415
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, AMENDING PALM DESERT MUNICIPAL CODE CHAPTER 2.36, PROCEDURES FOR THE CONDUCT OF MEETINGS
City Attorney’s Summary
The purpose of this ordinance is to amend the Palm Desert Municipal Code to clarify that Chapter 2.36 applies to the conduct of all appointed body meetings; sets time limits for public comment and public hearings, eliminates the need to sort public comment based on their position, and establishes a procedure for the sequencing of appeal hearings.
THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council hereby amends Section 2.36.010, Finding of Fact, to read as follows:
“Section 2.36.010 Finding of fact.
The city council finds and declares that by reason of the increased intensity and complexity of city business, a need to adopt procedural rules for the conduct of public business is necessary. The city council further finds and declares that increased concentrated judicial attention to the due process clauses of both the California and Federal Constitutions regarding public hearings and the rights of individuals to be heard, require more detailed rules and regulations, insuring the protection of the rights. The city council further finds and declares that it is imperative that any person having business before the city council have a reasonable opportunity to be heard and have his matter acted upon. The provisions of this chapter shall apply to every appointed body whether it is established by ordinance, resolution, or otherwise. In the event any provision of this chapter conflicts with a specific provision of an ordinance or resolution establishing a specific appointed body or the appointed body's bylaws, such specific provision shall control.”
SECTION 2. The City Council hereby adds Section 2.36.255, Addressing the council – speaker time limits, to read as follows:
“Section 2.36.255 Addressing the council – Speaker time limits A. Public comment period: Each speaker is limited to three minutes per agenda item during the public comment period, unless the time is adjusted by the presiding officer to accommodate the number of speakers and the length of the agenda.
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Ordinance No. 1415 Page 2
B. Public hearings: The public may comment on individual public hearing items within the three-minute time limit. The applicant or appellant will be provided up to ten (10) minutes to make their presentation. The applicant or appellant will be provided with an opportunity to make closing comments for up to three (3) additional minutes.”
SECTION 3. The City Council hereby amends Section 2.36.390, Public hearing – Opening, to read as follows:
“Section 2.36.390 Public hearing – Opening.
After the mayor has announced that the time has arrived for a public hearing on any scheduled agenda item set for public hearing, the mayor shall announce that it is the time and place for the public hearing, and shall ascertain whether or not anyone wishes to be heard on the agenda item under consideration. If there are persons present wishing to be heard, the presiding officer shall request that those in opposition to the matter under consideration be heard first, and the persons shall be given an opportunity to address the city council in accordance with the provisions of Section 2.36.250 through and including Section 2.36.270 of this chapter.”
SECTION 4. The City Council hereby adds Section 2.72.040, Sequencing of appeals hearings, to read as follows:
“Section 2.72.040 Sequencing of appeal hearings.
When an appeal may be heard by two or more bodies, the appeal shall be heard in the following sequence, with the City Council considering the appeal last, when practical:
A. Administrative Hearing Bodies: Appeals shall first be heard by the appropriate administrative hearing body with subject-matter jurisdiction.
B. Appoint Bodies: If applicable, appeals shall next be heard by any relevant appointed bodies that provide recommendations to the City Council.
C. City Council: The City Council shall hear the appeal last, ensuring that all preceding bodies have rendered their decisions or recommendations before the matter is brought before the City Council.
SECTION 5. Severability. If any section, subsection, clause, or phrase of this Ordinance or any part thereof is for any reason held to be invalid, unconstitutional, or unenforceable by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of the Ordinance. The City Council declares that it would have passed each section, subsection, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause, or phrase would be declared invalid, unconstitutional or unenforceable. 192
Ordinance No. 1415 Page 3
SECTION 6. Publication. The City Clerk of the City of Palm Desert, California, is hereby directed to publish a summary of this Ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption.
ADOPTED ON ___________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, do hereby certify that Ordinance No. 1415 is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Desert City Council on June 27, 2024, and adopted at a regular meeting of the City Council held on __________, 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ____________________.
ANTHONY J. MEJIA
CITY CLERK
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194
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Shawn Muir, Community Services Manager
REQUEST: ACCEPT CONTRACT NO. C46540 FOR THE CONSTRUCTION OF THE
BUMP & GRIND TRAILHEAD NEW PREFABRICATED RESTROOM
PROJECT NO. MPK00006 AS COMPLETE AND AUTHORIZE THE CITY
CLERK TO FILE THE NOTICE OF COMPLETION
RECOMMENDATION:
1. Accept Contract No. C46540 with Leonida Builders Inc for the Bump & Grind Trailhead New Prefabricated Restroom Project as complete.
2. Authorize the City Clerk to file the Notice of Completion.
BACKGROUND/ANALYSIS:
On October 26, 2023, the City Council awarded Contract No. C46540 in the amount of $363,380 to Leonida Builders Inc., for the Bump & Grind Trailhead New Prefabricated Restroom project and set aside a contingency of $55,000 and authorized the City Manager to approve necessary changes up to that amount.
Work began on April 8, 2024. During construction, Change Order No. 1 was issued in the amount of $6,450 for the installation of an interior 4-inch drain to facilitate maintenance and cleaning. Change Order No. 2 in the amount of $20,000 was issued for the handwash station in the restroom which did not have the necessary 5-foot clearance for ADA compliance. The contractor also installed (5) bollards to delineate the pedestrian area away from the driveway.
The contract plus the two Change Orders totaled $390,130.
On June 19, 2024, staff inspected the work performed by the contractor and 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:
The unused contingency funds will be returned to Capital Projects Fund Balance for reallocation.
Leonida Builders Award Total Contract Contingency
10/26/23 Approval $363,680 $55,000
C/O 1 6,450 (6,450)
C/O 2 20,000 (20,000)
Completed Contract $390,130 $28,550
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City of Palm Desert
(Notice of Completion-Leonida Builders Contract No. C46540)
ATTACHMENTS:
1. Notice of Completion
2. Vicinity Map
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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 640-091-010 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 26
th day of October 2023 work of improvement described as the Construction of Trailhead Restroom Facility Project, Contract No. C46540, on the real property herein described was completed.
5. That the name of the original contractor, if any, for said work of improvement was: Leonida Builders Inc.
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 Bump & Grind Trailhead on Painters Path in Palm Desert, California, 92260.
CITY OF PALM DESERT
A MUNICIPAL CORPORATION
Date: By:
Karina Quintanilla, 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)
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198
FRED WARING DR FRED WARING DR
DESERT CROSSINGS DR
HWY 111
EDGEH LI L DR
PA
NI
TERS
PATH
PAINTERS PATH
PAINTERS
PA
TH
Copyright nearmap 2015
I
PROJECT
APN: 640-091-010
VICINITY MAP
Construct Trailhead Restroom Facility
Project # MPK00006
Contract # C46540
199
200
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 27, 2024
PREPARED BY: Erika Castellano, Assistant to the City Council REQUEST: ACCEPTANCE OF A RESIGNATION FROM THE RESOURCE
PRESERVATION AND ENHANCEMENT COMMITTEE
RECOMMENDATION:
With regret, accept the resignation of Gustavo Gomez from the Resource Preservation and Enhancement Committee.
BACKGROUND/ANALYSIS:
On July 1, 2023, Gustavo Gomez was appointed to the Resource Preservation and Enhancement Committee for a term ending June 30, 2027. On June 16, 2024, Mr. Gomez informed the City of his resignation effective immediately, resulting in a vacated seat.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
There is no fiscal impact associated with this action.
201
202
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Arlene Arellano, Accountant
REQUEST: RESOLUTION TO DESIGNATE THE FINANCE DIRECTOR TO BE THE
AUTHORIZED AGENT TO ESTABLISH AND AMEND PETTY CASH
FUNDS AND GUIDELINES
RECOMMENDATION:
1. Adopt a Resolution entitled “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, DESIGNATING THE FINANCE DIRECTOR AS THE
AUTHORIZED AGENT FOR ESTABLISHING, AMENDING, AND TERMINATING PETTY CASH FUNDS THROUGHOUT THE CITY DEPARTMENTS.”
2. Authorize the City Manager, through the Finance Director, to establish petty cash guidelines and amend them from time to time.
BACKGROUND/ANALYSIS:
Historically, the City Council established petty cash funds, not to exceed $500 per department, through a series of individual resolutions, upon request by City departments. These resolutions placed the petty cash funds under the supervision and control of the requesting department.
Petty cash funds are on a reimbursement basis with all disbursements made only upon the receipt of a properly executed petty cash voucher and proper backup documentation.
By authorizing the City Manager, through the Finance Director, to establish and amend the petty cash funds and guidelines, this will streamline the process for managing petty cash funds and ensure consistency and accountability across the organization.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
There is no direct financial impact with this action, however petty cash requests will be drawn from approved department budgets.
ATTACHMENT:
1. Resolution: Petty Cash Funds
203
204
RESOLUTION NO. 2024-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, DESIGNATING THE FINANCE DIRECTOR AS
THE AUTHORIZED AGENT FOR ESTABLISHING, AMENDING, AND
TERMINATING PETTY CASH FUNDS THROUGHOUT THE CITY
DEPARTMENTS
WHEREAS, historically the City Council established petty cash funds through a series of individual resolutions upon request by City departments; and WHEREAS, each petty cash fund is under the supervision and control of the requesting department; and
WHEREAS, it is desirable to streamline the process for managing petty cash funds and ensure consistency and accountability across the organization.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:
SECTION 1. Designate the Finance Director to be the authorized agent to establish and amend the amount of each authorized petty cash fund, including, if necessary, the reduction or termination of each fund.
SECTION 2. Authorize the City Manager, through the Finance Director, to establish petty cash guidelines and amend them from time to time.
SECTION 3. Rescind all previous resolutions establishing petty cash funds in conflict with this resolution.
ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
205
Resolution No. 2024-____ Page 2
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
206
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Ivan Tenorio, Homeless and Supportive Services Manager REQUEST: ADOPT RESOLUTION OPTING INTO SETTLEMENT AGREEMENT WITH
DISTRIBUTORS OF OPIOIDS, GROCERY CHAIN KROGER, AND
FUTURE PROPOSED OPIOD SETTLEMENTS
RECOMMENDATION:
1. Adopt a Resolution entitled “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO ENTER INTO THE SETTLEMENT AGREEMENT WITH KROGER CO., AGREE TO THE TERMS OF THE
STATE SUBDIVISION AGREEMENT, AND AUTHORIZE THE CITY MANAGER TO EXECUTE FUTURE PROPOSED OPIOID SETTLEMENT AGREEMENTS.”
2. Authorize the City Manager to execute the Participation Agreements with the settling defendants, Kroger, and to execute any future proposed Opioid Settlement agreements.
3. Approve prioritizing street outreach and establishing pathways to treatment for homeless individuals grappling with substance use issues for use of settlement funds.
BACKGROUND/ANALYSIS:
Last year, California Attorney General Robert Bonta unveiled a potential multistate agreement with Kroger, a chain pharmacy, amounting to a maximum of $1.2 billion. California could receive up to $122 million in abatement funds through this settlement. Similar to the other settlements involving Janssen/J&J, Distributors, Teva, Allergan, Walmart, CVS, and Walgreens, local government backing, and endorsement are crucial to maximize the funds allocated to our communities.
Of the $122 million proposed settlement for California, the majority of the abatement funds (85%) will go to cities and counties. Per our direct administrator of the settlement funds, staff has not yet been provided what the city’s percentage of the abatement will be, but upon approval, staff can then reconcile and update the Opioid Settlement budget at mid-year budget time.
USE OF RECEIVED FUNDS:
Like the Distributor and J&J settlements approved by Council at the April 13, 2023 meeting, funds obtained from these agreements must be allocated toward future opioid remediation or abatement efforts. Based on prior assessments of eligible uses of settlement funds and the potential impact of targeted initiatives, staff recommends prioritizing street outreach and establishing pathways to treatment for homeless individuals grappling with substance use issues.
Currently the city’s contract with City Net, through its designated Palm Desert team conducts drug screening assessments for each individual who participates during the intake process. City 207
City of Palm Desert
Adopt Resolution Opting into Settlement Agreement
Net can also connect individuals to substance treatment programs, if they express interest.
These efforts align with the Department of Health Care Services' auditing requirements and staff would like to stress that strict adherence to funding guidelines requires annual reporting once funds have been utilized.
FUTURE OPIOID SETTLEMENTS:
As part of this action, Staff is requesting that the City Council authorize the City Manager to also be able to execute any future opioid class settlement agreements.
FINANCIAL IMPACT:
The funds received by opting into the settlement agreement(s) are restricted, therefore there is no direct impact to the General Fund. Funds relative to the agreements are deposited and appropriated in the Opioid Settlement Special Funds.
ATTACHMENTS:
1. Resolution
2. Kroger Settlement Overview
3. Subdivision Document
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RESOLUTION NO. 2024-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, AUTHORIZING THE CITY
MANAGER TO ENTER INTO THE SETTLEMENT
AGREEMENT WITH KROGER CO., AGREE TO THE
TERMS OF THE STATE SUBDIVISION AGREEMENT, AND
AUTHORIZE THE CITY MANAGER TO EXECUTE FUTURE
PROPOSED OPIOID SETTLEMENT AGREEMENTS
WHEREAS, the United States is facing an ongoing public health crisis of opioid abuse, addiction, overdose, and death, forcing the State of California and California counties and cities to spend billions of dollars each year to address the direct consequences of this crisis; and,
WHEREAS, pending in the U.S. District Court for the Northern District of Ohio is a multidistrict litigation (“MDL”) being pursued by numerous public entity plaintiffs against the manufacturers and distributors of various opioids based on the allegation that the defendants’ unlawful conduct caused the opioid epidemic; and, WHEREAS on or about March 22, 2024, the State of California reached a proposed multistate tentative settlement was reached between the plaintiffs in the MDL and Kroger Co. (“Kroger”), and,
WHEREAS, as part of the settlement with Kroger, local subdivisions, including certain cities, that are not plaintiffs in the MDL may participate in the settlements in exchange for a release of Kroger; and,
WHEREAS, copies of the proposed terms of the proposed nationwide settlement have been set forth in the Kroger Settlement Agreement; and, WHEREAS, the CA Kroger Allocation Agreement allocates the California Opioid Funds as follows: 15% to the State Fund; 70% to the Abatement Accounts Fund; and 15% to the Subdivision Fund. All funds allocated to California from the Settlement shall be combined pursuant to the CA Kroger Allocation Agreement, and 15% of total from the settlement shall be allocated to the State of California (the “State of California Allocation”), 70% to the California Abatement Accounts Fund (“CA Abatement Accounts Fund”), and 15% to the California Subdivision Fund (“CA Subdivision Fund”); and,
WHEREAS, the Kroger Settlement Agreement provides, among other things, for the payment of a certain sum to settling government entities in California including to the State of California and Participating Subdivisions upon occurrence of certain events as defined in the Kroger Settlement Agreement (“California Opioid Funds”); and,
209
WHEREAS, California local governments in the MDL have engaged in extensive discussions with the State Attorney General’s Office (“AGO”) as to how the California Opioid Funds will be allocated, resulting in the Proposed California State Subdivision Agreement Regarding Distribution and Use of Settlement Funds (“CA Kroger Allocation Agreement”) from the settlement with Kroger; and, WHEREAS, under the Kroger Settlement Agreement, certain local subdivisions that did not file a lawsuit against Kroger may qualify to participate in the settlement and obtain funds from the Abatement Account Fund; and,
WHEREAS, the City of Palm Desert is eligible to participate in the Settlement and become a CA Participating Subdivision; and,
WHEREAS, the funds in the CA Abatement Accounts Fund (the 70% allocation) will be allocated based on the allocation model developed in connection with the proposed negotiating class in the National Prescription Opiate Litigation (MDL No. 2804), as adjusted to reflect only those cities and counties that are eligible, based on population or litigation status, to become a CA Participating Subdivision (those above 10,000 in population). The City's share of the CA Abatement Accounts Fund will be a product of the total in the CA Abatement Accounts Fund multiplied by the City’s percentage set forth in Appendix 1 of the CA Kroger Allocation Agreements (the “Local Allocation”); and,
WHEREAS, a CA Participating Subdivision that is a city will be allocated its Local Allocation share as of the date on which it becomes a Participating Subdivision.
The Local Allocation share for a city that is a CA Participating Subdivision will be paid to the county in which the city is located, unless the city elects to take a direct election of the settlement funds, so long as: (a) the county is a CA Participating Subdivision, and (b) the city has not advised the Settlement Fund Administrator that it requests direct payment at least 60 days prior to a Payment Date; and, WHEREAS, it the intent of this Resolution is to authorize the City to enter into the Kroger Settlement Agreement with Kroger by executing the Participation Form and to enter into the CA Kroger Allocation Agreement by executing the signature pages to those agreements.
NOW, THEREFORE, BE IT RESOLVED by the City of Palm Desert City Council as follows:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The City Manager is authorized to settle and release the City's claims against Kroger in exchange for the consideration set forth in the Kroger 210
Settlement Agreement and CA Kroger Allocation Agreement, including taking the following measures:
1. The execution of the Participation Form with Kroger and any and all documents ancillary thereto.
2. The execution of the Proposed California State-Subdivision Agreement Regarding Distribution and Use of Settlement Funds with Kroger by executing the signature page to that CA Kroger Allocation Agreement.
3. Notify the Settlement Fund Administrator that the City requests a direct payment under the CA Kroger Allocation Agreement at least 60 days prior to the Payment Date in the Kroger Settlement Agreement.
SECTION 3. The City Manager is authorized to, without further City Council review or approval, settle and release the City's claims against any other manufacturers and/or distributors of various opioids based on the allegation that the defendants’ unlawful conduct caused the opioid epidemic (“Future Settling Defendants”), in exchange for consideration set forth in agreements substantially similar to the Kroger Settlement Agreement and CA Kroger Allocation Agreement.
This authorization includes the authority to:
1. Execute any Participation Agreements or Forms with any Future Settling Defendants, and any and all documents ancillary thereto; and
2. Execute the Proposed California State-Subdivision Agreement Regarding Distribution and Use of Settlement Funds with any Future Settling Defendants by executing the signature pages to those Allocation Agreements; and
3. Notify the Settlement Fund Administrator that the City requests a direct payment under the Allocation Agreements at least 60 days prior to the payment date in any settlement agreements with Future Settling Defendants.
SECTION 4. CEQA. That the City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 5. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
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SECTION 6. Effective Date. This Resolution shall become effective immediately.
SECTION 7. Certification. The City Clerk shall certify the passage and adoption of this resolution and enter it into the book of original Resolutions.
ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
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Subdivision Name, Subdivision State
Rubris Reference Number: Subdivision Crosslink ID
TO LOCAL POLITICAL SUBDIVISIONS:
THIS NOTICE CONTAINS IMPORTANT INFORMATION ABOUT
A NEW NATIONAL OPIOID SETTLEMENT.
KROGER CO. SETTLEMENT OVERVIEW
A proposed nationwide settlement agreement (“Settlement”) has been reached that would resolve the legal claims of states and local political subdivisions against regional supermarket pharmacy Kroger Co. related to alleged misconduct related to opioids.
The Settlement requires Kroger Co. to pay over a billion dollars to abate the opioid epidemic. Of this amount, approximately $1.2 billion will be used by participating states and subdivisions to remediate and abate the impacts of the opioid crisis. Depending on participation by states and subdivisions, the Settlement requires payments over eleven years after its effective date.
The Settlement also contains injunctive relief governing opioid dispensing practices and requires Kroger Co. to implement safeguards to prevent diversion of prescription opioids.
The proposed settlement has two key participation steps.
First, each eligible state decides whether to participate in each Settlement. A list of participating states for each settlement can be found at https://nationalopioidsettlement.com.
Second, eligible subdivisions within each participating state decide whether to participate in the Settlement. The more subdivisions that participate, the more funds flow to that state and its subdivisions. Any subdivision that does not participate cannot directly share in any of the settlement funds, even if the subdivision’s state is settling and other participating subdivisions are sharing in settlement funds. If the state does not participate, the subdivisions in that state are not eligible to participate in the Settlement.
WHO IS RUBRIS INC. AND WHAT IS THE IMPLEMENTATION ADMINISTRATOR? The Settlement provides that an Implementation Administrator will provide notice and manage the collection of participation forms. Rubris Inc. is the Implementation Administrator for this new Settlement and was also retained for the prior national opioid settlements.
WHY IS YOUR SUBDIVISION RECEIVING THIS NOTICE?
Your state has elected to participate in the Settlement, and therefore your subdivision may participate in that Settlement. This notice is also sent directly to counsel for such subdivisions if the Implementation Administrator has their information. 213
If you are represented by an attorney with respect to opioid claims, please contact them.
Subdivisions can participate in the Settlement whether or not they filed a lawsuit or are represented.
WHERE CAN YOU FIND MORE INFORMATION?
Detailed information about the Settlement, including each settlement agreement, may be found at:
********nationalopioidsettlement.com. This website also includes information about how the Settlement are being implemented in most states and how funds will be allocated within your state.
You are encouraged to review the settlement agreement terms and discuss the terms and benefits with your counsel, your Attorney General’s Office, and other contacts within your state.
Information and documents regarding the Settlement and your state allocation can be found on the settlement website at https://nationalopioidsettlement.com.
Your subdivision will need to decide whether to participate in the proposed Settlement, and subdivisions are encouraged to work through this process before the August 12, 2024, deadline.
HOW DO YOU PARTICIPATE IN THE SETTLEMENTS?
The Settlement requires that you take affirmative steps to “opt in” to the Settlement.
In the next few weeks, you will receive documentation and instructions from the Implementation Administrator or, in some cases, your Attorney General’s Office. In order to participate in a settlement, a subdivision must sign and return the required Participation Form.
Please add the following email addresses to your “safe” list so emails do not go to spam / junk folders: [email protected] and [email protected]. Please monitor your email for the Participation Form and instructions.
All required documentation must be signed and returned on or before August 12, 2024. 214
New National Opioids Settlement: Kroger
Opioids Implementation Administrator
[email protected]
Palm Desert city, CA
Reference Number: CL-789710
TO LOCAL POLITICAL SUBDIVISIONS:
THIS PACKAGE CONTAINS DOCUMENTATION TO PARTICIPATE IN THE NEW NATIONAL OPIOIDS SETTLEMENT. YOU MUST TAKE ACTION IN ORDER TO PARTICIPATE.
Deadline: August 12, 2024
A new proposed national opioids settlement (“New National Opioids Settlement”) has been reached with Kroger (“Settling Defendant”). This Participation Package is a follow-up communication to the Notice of National Opioids Settlement recently received electronically by your subdivision.
You are receiving this Participation Package because California is participating in the Kroger settlement.
This electronic envelope contains three attachments:
The Participation Form for the Kroger settlement, including a release of any claims;
California State Subdivision Agreement for Kroger; and Side-letter agreement between California and Kroger
The Participation Form and California State-Subdivision Agreement must be executed, without alteration, and submitted on or before August 12, 2024, in order for your subdivision to be considered for initial participation calculations and payment eligibility.
The side-letter agreement between California and Kroger modifies, as it applies to California, one injunctive relief term contained in Exhibit P, Section IX(5)(1) of the Kroger National Settlement Agreement.
Based upon subdivision participation forms received on or before August 12, 2024, the subdivision participation rate will be used to determine whether participation is sufficient for the settlement to move forward and whether a state earns its maximum potential payment under the settlement. If the settlement moves forward, your release will become effective. If a settlement does not move forward, that release will not become effective.
Any subdivision that does not participate cannot directly share in the settlement funds, even if the subdivision’s state is settling and other participating subdivisions are sharing in settlement funds. Any subdivision that does not participate may also reduce the amount of money for programs to remediate the opioid crisis in its state.
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 215
Please note, a subdivision will not necessarily directly receive settlement funds by participating; decisions on how settlement funds will be allocated within a state are subject to intrastate agreements or state statutes.
You are encouraged to discuss the terms and benefits of the New National Opioids Settlement with your city attorney/county counsel, outside counsel representing your city/county on opioid matters, the Attorney General’s Office, and other contacts within your state. Many states are implementing and allocating funds for this new settlement the same as they did for the prior opioids settlements with McKesson, Cardinal, Cencora (formerly AmerisourceBergen), J&J/Janssen, Teva, Allergan, CVS, Walgreens, and Walmart but states may choose to treat this settlement differently.
Information and documents regarding the New National Opioids Settlement and how it is being implemented in your state and how funds will be allocated within your state can be found on the national settlement website at https://nationalopioidsettlement.com/ and the California Attorney General’s website at https://oag.ca.gov/opioids. This website will be supplemented as additional documents are created. Please also refer to the Side-Letter Agreement with Kroger, which modifies the Kroger National Opioid Settlement’s injunctive relief within the State of California.
How to return signed forms:
There are three methods for returning the executed Participation Form, the California-State Subdivision Agreement (“Subdivision Agreement”), and any supporting documentation to the Implementation Administrator:
(1) Electronic Signature via DocuSign: Executing the Participation Form and the Subdivision Agreement electronically through DocuSign will return the signed form to the Implementation Administrator and associate your form with your subdivision’s records. Electronic signature is the most efficient method for returning the Participation Form and the Subdivision Agreement, allowing for more timely participation and the potential to meet higher settlement payment thresholds, and is therefore strongly encouraged. (2) Manual Signature returned via DocuSign: DocuSign allows forms to be downloaded, signed manually, then uploaded to DocuSign and returned automatically to the Implementation Administrator. Please be sure to complete all fields and note that execution and return of both the Subdivision Agreement and the Participation Form are required for participation in the corresponding settlement. As with electronic signature, returning a manually signed Participation Form and Subdivision Agreement via DocuSign will associate your signed forms with your subdivision’s records. (3) Manual Signature returned via electronic mail: If your subdivision is unable to return an executed Participation Form and Subdivision Agreement using DocuSign, the signed Participation Form and Subdivision Agreement may be returned via electronic mail to [email protected]. Please include the name, state, and reference ID of your subdivision in the body of DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 216
the email and use the subject line Settlement Participation Form – [Subdivision Name, Subdivision State] – [Reference ID]. Note that execution and return of both the Subdivision Agreement and the Participation Form are required for participation in the corresponding settlement.
Detailed instructions on how to sign and return the Participation Form and Subdivision Agreement, including changing the authorized signer, can be found at https://nationalopioidsettlement.com/. You may also contact [email protected].
The sign-on period for subdivisions ends on August 12, 2024.
If you have any questions about executing the Participation Form, please contact your city attorney/county counsel, outside counsel representing your city/county on opioids matters, the Implementation Administrator at
[email protected], or the California Attorney General’s Office at [email protected].
Thank you,
New National Opioids Settlement Implementation Administrator The Implementation Administrator is retained to provide the settlement notice required by the New National Opioids Settlement and to manage the collection of the Participation Form.
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 217
Subdivision Participation and Release Form
Governmental Entity: Palm Desert city State: CA
Authorized Signatory: /officialname_kroger/
Address 1: /address1_kroger/
Address 2: /address2_kroger/
City, State, Zip: /cit_kr/ /state_kr/ /zi_kr/
Phone: /phone_kroger/
Email: /email_kroger/
The governmental entity identified above (“Governmental Entity”), in order to obtain and in consideration for the benefits provided to the Governmental Entity pursuant to the Settlement Agreement dated March 22, 2024 (“Kroger Settlement”), and acting through the undersigned authorized official, hereby elects to participate in the Kroger Settlement, release all Released Claims against all Released Entities, and agrees as follows.
1. The Governmental Entity is aware of and has reviewed the Kroger Settlement, understands that all terms in this Participation and Release Form have the meanings defined therein, and agrees that by executing this Participation and Release Form, the Governmental Entity elects to participate in the Kroger Settlement and become a Participating Subdivision as provided therein.
2. The Governmental Entity shall promptly, and in any event no later than 14 days after the Reference Date and prior to the filing of the Consent Judgment, dismiss with prejudice any Released Claims that it has filed. With respect to any Released Claims pending in In re National Prescription Opiate Litigation, MDL No. 2804, the Governmental Entity authorizes the Plaintiffs’ Executive Committee to execute and file on behalf of the Governmental Entity a Stipulation of Dismissal with Prejudice substantially in the form found at https://nationalopioidsettlement.com/.
3. The Governmental Entity agrees to the terms of the Kroger Settlement pertaining to Participating Subdivisions as defined therein.
4. By agreeing to the terms of the Kroger Settlement and becoming a Releasor, the Governmental Entity is entitled to the benefits provided therein, including, if applicable, monetary payments beginning after the Effective Date.
5. The Governmental Entity agrees to use any monies it receives through the Kroger Settlement solely for the purposes provided therein.
6. The Governmental Entity submits to the jurisdiction of the court in the Governmental Entity’s state where the Consent Judgment is filed for purposes limited to that court’s role as provided in, and for resolving disputes to the extent provided in, the Kroger Settlement. The Governmental Entity likewise agrees to arbitrate before the National 1 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 [email protected]
760-776-6305
Palm Desert 92260
73-510 Fred Waring Drive
L. Todd Hileman
California
218
Arbitration Panel as provided in, and for resolving disputes to the extent otherwise provided in, the Kroger Settlement.
7. The Governmental Entity has the right to enforce the Kroger Settlement as provided therein.
8. The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for all purposes in the Kroger Settlement, including without limitation all provisions of Section XI (Release), and along with all departments, agencies, divisions, boards, commissions, districts, instrumentalities of any kind and attorneys, and any person in their official capacity elected or appointed to serve any of the foregoing and any agency, person, or other entity claiming by or through any of the foregoing, and any other entity identified in the definition of Releasor, provides for a release to the fullest extent of its authority. As a Releasor, the Governmental Entity hereby absolutely, unconditionally, and irrevocably covenants not to bring, file, or claim, or to cause, assist or permit to be brought, filed, or claimed, or to otherwise seek to establish liability for any Released Claims against any Released Entity in any forum whatsoever. The releases provided for in the Kroger Settlement are intended by the Parties to be broad and shall be interpreted so as to give the Released Entities the broadest possible bar against any liability relating in any way to Released Claims and extend to the full extent of the power of the Governmental Entity to release claims. The Kroger Settlement shall be a complete bar to any Released Claim.
9. The Governmental Entity hereby takes on all rights and obligations of a Participating Subdivision as set forth in the Kroger Settlement.
10. In connection with the releases provided for in the Kroger Settlement, each Governmental Entity expressly waives, releases, and forever discharges any and all provisions, rights, and benefits conferred by any law of any state or territory of the United States or other jurisdiction, or principle of common law, which is similar, comparable, or equivalent to § 1542 of the California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release that, if known by him or her would have materially affected his or her settlement with the debtor or released party.
A Releasor may hereafter discover facts other than or different from those which it knows, believes, or assumes to be true with respect to the Released Claims, but each Governmental Entity hereby expressly waives and fully, finally, and forever settles, releases and discharges, upon the Effective Date, any and all Released Claims that may exist as of such date but which Releasors do not know or suspect to exist, whether through ignorance, oversight, error, negligence or through no fault whatsoever, and which, if known, would materially affect the Governmental Entities’ decision to participate in the Kroger Settlement.
2 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 219
11. Nothing herein is intended to modify in any way the terms of the Kroger Settlement, to which Governmental Entity hereby agrees. To the extent this Participation and Release Form is interpreted differently from the Kroger Settlement in any respect, the Kroger Settlement controls.
I have all necessary power and authorization to execute this Participation and Release Form on behalf of the Governmental Entity.
Signature: /signer_1_kroger/
Name: /name_1_kroger/
Title: /title_1_kroger/
Date: /date_1_kroger/
3 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 6/17/2024
City Manager
Todd Hileman
220
Proposed California State-Subdivision Agreement
Regarding Distribution and Use of
Settlement Funds – Kroger Settlement
1. Introduction
Pursuant to the Kroger Settlement Agreement, dated as of March 22, 2024, and any revision thereto as well as any modification thereto entered into by the State of California and Kroger (the “Kroger Settlement Agreement”), including Section V and Exhibit O, the State of California proposes this agreement (the “CA Kroger Allocation Agreement”) to govern the allocation, distribution, and use of Settlement Fund payments made to California pursuant to Sections IV and V of the Kroger Settlement Agreement. For the avoidance of doubt, this agreement does not apply to payments made pursuant to Section IX of the Kroger Settlement Agreement.
Pursuant to Exhibit O, Paragraph 4, of the Kroger Settlement Agreement, acceptance of this CA Kroger Allocation Agreement is a requirement to be an Initial Participating Subdivision.
2. Definitions
a) CA Participating Subdivision means a Participating Subdivision that is also (a) a Plaintiff Subdivision and/or (b) a Primary Subdivision with a population equal to or greater than 10,000. For the avoidance of doubt, eligible CA Participating Subdivisions are those California subdivisions listed in Exhibit C (excluding Litigating Special Districts) and/or Exhibit I to the Kroger Settlement Agreement. b) Allergan Settlement Agreement means the Allergan Settlement Agreement dated November 22, 2022, and any revision thereto.
c) CVS Settlement Agreement means the CVS Settlement Agreement dated December 9, 2022, and any revision thereto as well as any modification thereto entered into by the State of California and CVS.
d) Distributor Settlement Agreement means the Distributor Settlement Agreement dated July 21, 2021, and any revision thereto.
e) Janssen Settlement Agreement means the Janssen Settlement Agreement dated July 21, 2021, and any revision thereto.
f) Teva Settlement Agreement means the Teva Settlement Agreement dated November 22, 2022, and any revision thereto.
g) Walgreens Settlement Agreement means the Walgreens Settlement Agreement dated December 9, 2022, and any revision thereto.
h) Walmart Settlement Agreement means the Walmart Settlement Agreement dated November 14, 2022, and any revision thereto.
i) CA Litigating Special District means a Litigating Special District located in California. CA Litigating Special Districts include Downey Unified School District, 1 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 221
Elk Grove Unified School District, Kern High School District, Montezuma Fire Protection District (located in Stockton, California), Santa Barbara San Luis Obispo Regional Health Authority, Inland Empire Health Plan, Health Plan of San Joaquin, San Leandro Unified School District, Pleasant Valley School District Board, and LA Care Health Plan.
j) Plaintiff Subdivision means a Subdivision located in California, other than a CA Litigating Special District, that filed a lawsuit, on behalf of the Subdivision and/or through an official of the Subdivision on behalf of the People of the State of California, against one or more Opioid Defendants prior to October 1, 2020. k) Opioid Defendant means any defendant (including but not limited to Kroger Co., Walgreen Co., Teva Pharmaceutical Industries Ltd., Allergan Finance, LLC, Allergan Limited, CVS Health Corporation, CVS Pharmacy, Inc., Walmart Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., Purdue Pharma L.P., Cardinal Health, Inc., AmerisourceBergen Corporation, and McKesson Corporation) named in a lawsuit seeking damages, abatement, or other remedies related to or caused by the opioid public health crisis in any lawsuit brought by any state or local government on or before October 1, 2020.
3. General Terms
This agreement is subject to the requirements of the Kroger Settlement Agreement, as well as applicable law, and the Kroger Settlement Agreement governs over any inconsistent provision of this CA Kroger Allocation Agreement. Terms used in this CA Kroger Allocation Agreement have the same meaning as in the Kroger Settlement Agreement unless otherwise defined herein.
Pursuant to Section V(D)(1) of the Kroger Settlement Agreement, (a) all Settlement Fund payments will be used for Opioid Remediation, except as allowed by Section V(B)(2) of the Kroger Settlement Agreement; and (b) at least seventy percent (70%) of Settlement Fund payment amounts will be used solely for future Opioid Remediation.
4. State Allocation
The Settlement Fund payments to California,1 pursuant to the Kroger Settlement Agreement, shall be allocated as follows: 15% to the State Fund; 70% to the Abatement Accounts Fund; and 15% to the Subdivision Fund. For the avoidance of doubt, all funds allocated to California from the Settlement Fund shall be combined pursuant to this CA Kroger Allocation Agreement, and 15% of that total shall be allocated to the State of California (the “State of California Allocation”), 70% to the California Abatement Accounts Fund (“CA Abatement Accounts Fund”), and 15% to the California Subdivision Fund (“CA Subdivision Fund”). 1 For purposes of clarity, use of the term “California” refers to the geographic territory of California and the state and its local governments therein. The term “State” or “State of California” refers to the State of California as a governmental unit. 2 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 222
A. State of California Allocation
Fifteen percent of the total Settlement Fund payments will be allocated to the State and used by the State for future Opioid Remediation.
B. CA Abatement Accounts Fund
i. Allocation of CA Abatement Accounts Funds
a) Seventy percent of the total Settlement Fund payments will be allocated to the CA Abatement Accounts Fund. The funds in the CA Abatement Accounts Fund will be allocated based on the allocation model developed in connection with the proposed negotiating class in the National Prescription Opiate Litigation (MDL No. 2804), as adjusted to reflect only those cities and counties that are eligible, based on population or litigation status, to become a CA Participating Subdivision. The percentage from the CA Abatement Accounts Fund allocated to each CA Participating Subdivision is set forth in Appendix 1 in the column entitled abatement percentage (the “Local Allocation”). For the avoidance of doubt, CA Litigating Special Districts and California towns, cities, and counties with a population less than 10,000 are not eligible to receive an allocation of CA Abatement Accounts Funds.
b) A CA Participating Subdivision that is a county, or a city and county, will be allocated its Local Allocation share as of the date on which it becomes a Participating Subdivision, and will receive payments as provided in the Kroger Settlement Agreement. c) A CA Participating Subdivision that is a city will be allocated its Local Allocation share as of the date on which it becomes a Participating Subdivision. The Local Allocation share for a city that is a CA Participating Subdivision will be paid to the county in which the city is located, rather than to the city, so long as: (a) the county is a CA Participating Subdivision, and (b) the city did not elect to receive its share of funds in the National Opioids Settlement with Distributors AmerisourceBergenCorporation, Cardinal Health, Inc., and McKesson Corporation (the “Distributors Settlement”). If a city later changes or has already changed its distribution election in the Distributors Settlement, that change in election will apply here, provided that the change in election is received by the settlement administrator at least 60 days prior to a Payment Date. A Local Allocation share allocated to a city but paid to a county is not required to be spent exclusively for abatement activities in that city, but will become part of the county’s share of the CA Abatement Accounts Funds, which will be used in accordance with Section 4.B.ii (Use of CA Abatement Accounts Funds) and reported on in accordance with Section 4.B.iii (CA Abatement Accounts Fund Oversight).
d) A city within a county that is a CA Participating Subdivision may opt in or out of direct payment at any time, and it may also elect direct payment of only a portion of its share, with the remainder going to the county, by providing notice to the Settlement Fund Administrator at least 60 days prior to a Payment Date. For purposes of this CA Kroger Allocation Agreement, the Cities of Los Angeles, Oakland, San Diego, San Jose and 3 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 223
Eureka will be deemed to have elected direct payment if they become Participating Subdivisions.
e) The State will receive the Local Allocation share of any payment to the Settlement Fund that is attributable to a county or city that is eligible to become a CA Participating Subdivision, but that has not, as of the date of that payment to the Settlement Fund, become a Participating Subdivision.
f) Funds received by a CA Participating Subdivision, and not expended or encumbered within five years of receipt and in accordance with the Kroger Settlement Agreement and this CA Kroger Allocation Agreement shall be transferred to the State; provided however, that CA Participating Subdivisions have seven years to expend or encumber CA Abatement Accounts Funds designated to support capital outlay projects before they must be transferred to the State. This provision shall not apply to the Cost Reimbursement Funds, which shall be controlled by Appendix 2.
ii. Use of CA Abatement Accounts Funds
a) The CA Abatement Accounts Funds will be used for future Opioid Remediation in one or more of the areas described in the List of Opioid Remediation Uses, which is Exhibit E to the Kroger Settlement Agreement.
b) In addition to this requirement, no less than 50% of the funds received by a CA Participating Subdivision from the Abatement Accounts Fund in each calendar year will be used for one or more of the following High Impact Abatement Activities:
(1) the provision of matching funds or operating costs for substance use disorder facilities within the Behavioral Health Continuum Infrastructure Program; (2) creating new or expanded Substance Use Disorder (“SUD”) treatment infrastructure; (3) addressing the needs of communities of color and vulnerable populations (including sheltered and unsheltered homeless populations) that are disproportionately impacted by SUD;
(4) diversion of people with SUD from the justice system into treatment, including by providing training and resources to first and early responders (sworn and non-sworn) and implementing best practices for outreach, diversion and deflection, employability, restorative justice, and harm reduction; (5) interventions to prevent drug addiction in vulnerable youth, including but not limited to, youth in foster care, juvenile justice-impacted youth, youth experiencing adversities related to socioeconomic status, and unhoused youth; and/or (6) the purchase of naloxone for distribution and efforts to expand access to naloxone for opioid overdose reversals.
4 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 224
c) The California Department of Health Care Services (“DHCS”) may add to this list (but not delete from it) by designating additional High Impact Abatement Activities. DHCS will make reasonable efforts to consult with stakeholders, including the CA Participating Subdivisions, before adding additional High Impact Abatement Activities to this list. d) For the avoidance of doubt, and subject to the requirements of the Kroger Settlement Agreement and applicable law, CA Participating Subdivisions may form agreements or ventures, or otherwise work in collaboration with, federal, state, local, tribal or private sector entities in pursuing Opioid Remediation activities funded from the CA Abatement Accounts Fund. Further, provided that all CA Abatement Accounts Funds are used for Opioid Remediation consistent with the Kroger Settlement Agreement and this CA Kroger Allocation Agreement, a county and any cities or towns within the county may agree to reallocate their respective shares of the CA Abatement Accounts Funds among themselves, provided that any direct distribution may only be to a CA Participating Subdivision and any CA Participating Subdivision must agree to their share being reallocated.
iii. CA Abatement Accounts Fund Oversight
a) Pursuant to Section 5 below, CA Participating Subdivisions receiving settlement funds must prepare and file reports annually regarding the use of those funds. DHCS may regularly review the reports prepared by CA Participating Subdivisions about the use of CA Abatement Accounts Funds for compliance with the Kroger Settlement Agreement and this CA Kroger Allocation Agreement.
b) If DHCS determines that a CA Participating Subdivision’s use of CA Abatement Accounts Funds is inconsistent with the Kroger Settlement Agreement or this CA Kroger Allocation Agreement, whether through review of reports or information from any other sources, DHCS shall send a request to meet and confer with the CA Participating Subdivision. The parties shall meet and confer in an effort to resolve the concern. c) If the parties are unable to reach a resolution, DHCS may conduct an audit of the Subdivision’s use of the CA Abatement Accounts Funds within one year of the request to meet and confer, unless the parties mutually agree in writing to extend the meet and confer time frame.
d) If the concern still cannot be resolved, the State may bring a motion or action in the court where the State has filed its Consent Judgment to resolve the concern or otherwise enforce the requirements of the Kroger Settlement Agreement or this CA Kroger Allocation Agreement. However, in no case shall any audit be conducted, or motion be brought, as to a specific expenditure of funds, more than five years after the date on which the expenditure of the funds was reported to DHCS, in accordance with this agreement.
5 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 225
e) Notwithstanding the foregoing, this Agreement does not limit the statutory or constitutional authority of any state or local agency or official to conduct audits, investigations, or other oversight activities, or to pursue administrative, civil, or criminal enforcement actions.
C. CA Subdivision Fund
i. Fifteen percent of the total Settlement Fund payments will be allocated to the CA Subdivision Fund. All funds in the CA Subdivision Fund will be allocated among the Plaintiff Subdivisions that are Initial Participating Subdivisions. The funds will be used, subject to any limits imposed by the Kroger Settlement Agreement and this CA Kroger Allocation Agreement, to fund future Opioid Remediation and reimburse past opioidrelated expenses, which may include fees and expenses related to litigation, and to pay the reasonable fees and expenses of the Special Master as set forth in Appendix 2.
The CA Subdivision Funds will be allocated as follows:
a) First, funds in the CA Subdivision Fund shall be used to pay the Special Master’s reasonable fees and expenses in accordance with the procedures and limitations set forth in Appendix 2 to this document;
b) Second, funds will be allocated to Plaintiff Subdivisions that are Initial Participating Subdivisions that have been awarded Costs, as defined by and in accordance with the procedures and limitations set forth in Appendix 2 to this document. c) Funds remaining in the CA Subdivision Fund, which shall consist of no less than 50% of the total CA Subdivision Fund received in any year pursuant to Appendix 2, Section 2.c.v, will be distributed to Plaintiff Subdivisions that are Initial Participating Subdivisions, in relative proportion to the Local Allocation. These funds shall be used to fund future opioid-related projects and to reimburse past opioid-related expenses, which may include fees and expenses related to litigation against any Opioid Defendant.
D. Provision for State Back-Stop Agreement
On August 6, 2021, Judge Dan Polster of the U.S. District Court, Northern District of Ohio, Eastern Division, issued an order (ECF Docket Number 3814) (“MDL Fees Order”) in the National Prescription Opiate Litigation (MDL No. 2804) “cap[ping] all applicable contingent fee agreements at 15%.” Private counsel representing Plaintiff Subdivisions should seek its contingency fees and costs from the Attorney Fee Fund or Cost Funds under the Kroger Settlement Agreement, and, if applicable, the Teva Settlement Agreement, Allergan Settlement Agreement, CVS Settlement Agreement, Distributor Settlement Agreement, Janssen Settlement Agreement, and Walmart Settlement Agreement.
A Plaintiff Subdivision may separately agree to use its share of the CA Subdivision Fund to pay for fees or costs incurred by its contingency-fee counsel (“State Back-Stop Agreement”), 6 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 226
pursuant to Exhibit R, section I(CC), of the Kroger Settlement Agreement and the MDL Fees Order, so long as such contingency fees do not exceed a total contingency fee of 15% of the total gross recovery of the Plaintiff Subdivision pursuant to the Kroger Settlement, inclusive of contingency fees from the national Attorney Fee Fund and this State Back-Stop Agreement.
Before seeking fees or litigation costs and expenses from a State Back-Stop Agreement, private counsel representing Plaintiff Subdivisions must first seek contingency fees and costs from the Attorney Fee Fund or Cost Funds created under the Kroger Settlement Agreement. Further, private counsel may only seek reimbursement for litigation fees and costs that have not previously been reimbursed through prior settlements or judgments.
To effectuate a State Back-Stop Agreement pursuant to this section, an agreement in the form of Appendix 3 may be entered into by a Plaintiff Subdivision, private counsel, and the California Office of the Attorney General. The California Office of the Attorney General shall, upon the request of a Plaintiff Subdivision, execute any agreement executed by a Plaintiff Subdivision and its private counsel if it is in the form of Appendix 3. The California Office of the Attorney General will also consider requests from Plaintiff Subdivisions to execute and enter into agreements presented in other forms.
For the avoidance of doubt, this agreement does not require a Plaintiff Subdivision to request or enter into a State Back-Stop Agreement, and no State Back-Stop Agreement shall impose any duty or obligation on the State of California or any of its agencies or officers, including without limitation the Attorney General.
5. State and Subdivision Reporting
a) DHCS will prepare an annual written report regarding the State’s use of funds from the settlement until those funds are fully expended and for one year thereafter. These reports will be made publicly available on the DHCS web site.
b) Each CA Participating Subdivision that receives payments of funds from the settlement will prepare written reports at least annually regarding the use of those funds, until those funds are fully expended and for one year thereafter. These reports will also include a certification that all funds that the CA Participating Subdivision has received through the settlement have been used in compliance with the Kroger Settlement Agreement and this CA Kroger Allocation Agreement. The report will be in a form reasonably determined by DHCS. Prior to specifying the form of the report DHCS will confer with representatives of the Plaintiff Subdivisions.
c) The State and all CA Participating Subdivisions receiving CA Abatement Accounts Funds will track all deposits and expenditures. Each such subdivision is responsible solely for the CA Abatement Accounts Funds it receives. A county is not responsible for oversight, reporting, or monitoring of CA Abatement Accounts Funds received by a city within that county that receives direct payment. Unless otherwise exempt, Subdivisions’ expenditures and uses of CA Abatement Accounts Funds and other Settlement Funds will be subject to the normal budgetary and expenditure process of the Subdivision. 7 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 227
d) Each Plaintiff Subdivision receiving CA Subdivision Funds will track all deposits and expenditures, as required by the Kroger Settlement Agreement and this CA Kroger Allocation Agreement. Among other things, Plaintiff Subdivisions using monies from the CA Subdivision Fund for purposes that do not qualify as Opioid Remediation must identify and include in their annual report, the amount and how such funds were used, including if used to pay attorneys’ fees, investigation costs, or litigation costs. Pursuant to Section V(B)(2) of the Kroger Settlement Agreement, such information must also be reported to the Settlement Fund Administrator and Kroger. e) In each year in which DHCS prepares an annual report DHCS will also host a meeting to discuss the annual report and the Opioid Remediation activities being carried out by the State and Participating Subdivisions.
6. Miscellaneous
a) The State or any CA Participating Subdivision may bring a motion or action in the court where the State has filed its Consent Judgment to enforce the requirements of this CA Kroger Allocation Agreement. Before filing such a motion or action the State will meet and confer with any CA Participating Subdivision that is the subject of the anticipated motion or action, and vice versa.
b) Except as provided in the Kroger Settlement Agreement, this CA Kroger Allocation Agreement is not enforceable by any party other than the State and the CA Participating Subdivisions. It does not confer any rights or remedies upon, and shall not be enforceable by, any third party.
c) Except as provided in the CA Kroger Allocation Agreement, if any provision of this agreement or the application thereof to any person, entity, or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this agreement, or the application of such provision to persons, entities, or circumstances other than those as to which it is invalid or unenforceable, will not be affected thereby, and each other provision of this agreement will be valid and enforceable to the fullest extent permitted by law. d) Except as provided in the Kroger Settlement Agreement, this agreement shall be governed by and interpreted in accordance with the laws of California. 8 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 228
The undersigned, Palm Desert city, ACKNOWLEDGES acceptance of this Proposed California State-Subdivision Agreement Regarding Distribution and Use of Settlement Funds – Kroger Settlement is a requirement to be an Initial Participating Subdivision in the Kroger Settlement and ACCEPTS this Proposed California State-Subdivision Agreement Regarding Distribution and Use of Settlement Funds – Kroger Settlement. EXECUTED on /date_1_kroger/.
Signature: /signer_1_kroger/
Name: /name_1_kroger/
Title: /title_1_kroger/
Date: /date_1_kroger/
9 DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 6/17/2024
Todd Hileman
6/17/2024
City Manager
229
APPENDIX 1
DISCLAIMER: The allocation percentages herein are estimates only and should not be relied on for decisions regarding legal rights, releases, waivers, or other decisions affecting current or potential legal claims. Percentages shown in the Plaintiff Subdivision Percentage column may change pursuant to Section 4.C. of the California State-Subdivision Agreement Regarding Distribution and Use of Settlement Funds—Kroger Settlement, whereas the percentages shown in the Abatement Percentage column should not change. Participating Subdivisions, underlying calculations, and the calculated allocation percentages are subject to change.
Regarding the column herein entitled “Abatement Percentage,” pursuant to Section 4.B.e., the State of California will receive the Local Allocation share of any payment to the Settlement Fund that is attributable to a county or city that is eligible to become a CA Participating Subdivision, but that has not, as of the date of that payment to the Settlement Fund, become a Participating Subdivision.
Regarding the column herein entitled “Plaintiff Subdivision Percentage,” payments allocated to a Plaintiff Subdivision, which is not an Initial Participating Subdivision, will be re-allocated among the Plaintiff Subdivisions that are Initial Participating Subdivisions.
Regarding the column herein entitled “Abatement Percentage,” the annotation of “100%” refers to one-hundred percent (100%) of the California Abatement Account Funds received, pursuant to Section 4.B. Regarding the column herein entitled “Plaintiff Subdivision Percentage,” the annotation of “100%” refers to one-hundred percent (100%) of the California Subdivision Funds received, pursuant to Section 4.C. Regarding the column herein entitled “Weighted Allocation Percentage,” the annotation of “100%” refers to onehundred percent (100%) of the combined and weighted allocation of the Abatement Percentage and the Plaintiff Subdivision Percentage.
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 230
APPENDIX
1 1 of 15
100.000% 100.000% 100.000%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
County Alameda County Alameda 2.332% 2.853% 2.4237952%
City Alameda Alameda 0.069% 0.0570162%
City Albany Alameda 0.013% 0.0107768%
City Berkeley Alameda 0.152% 0.1249656%
City Dublin Alameda 0.033% 0.040% 0.0338810%
City Emeryville Alameda 0.023% 0.0185765%
City Fremont Alameda 0.108% 0.0888576%
City Hayward Alameda 0.117% 0.0966218%
City Livermore Alameda 0.054% 0.0446740%
City Newark Alameda 0.026% 0.0217626%
City Oakland Alameda 0.486% 0.595% 0.5055601%
City Piedmont Alameda 0.014% 0.0114064%
City Pleasanton Alameda 0.067% 0.0554547%
City San Leandro Alameda 0.039% 0.0321267%
City Union City Alameda 0.043% 0.0352484%
County Amador County Amador 0.226% 0.277% 0.2349885%
County Butte County Butte 1.615% 1.975% 1.6783178%
City Chico Butte 0.216% 0.264% 0.2246499%
City Oroville Butte 0.079% 0.0646595%
County Calaveras County Calaveras 0.226% 0.277% 0.2351644% County Colusa County Colusa 0.059% 0.0489221%
County Contra Costa County Contra Costa 2.102% 2.571% 2.1844585% City Antioch Contra Costa 0.037% 0.0301879%
City Brentwood Contra Costa 0.026% 0.0215339%
City Clayton Contra Costa 0.002% 0.0018060%
City Concord Contra Costa 0.055% 0.0456676%
City Danville Contra Costa 0.010% 0.0082255%
City El Cerrito Contra Costa 0.023% 0.0189024%
City Hercules Contra Costa 0.010% 0.0078273%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Lafayette Contra Costa 0.006% 0.0046030%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 231
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City Martinez Contra Costa 0.012% 0.0098593%
City Moraga Contra Costa 0.004% 0.0031007%
City Oakley Contra Costa 0.010% 0.0079416%
City Orinda Contra Costa 0.005% 0.0038157%
City Pinole Contra Costa 0.013% 0.0110909%
City Pittsburg Contra Costa 0.053% 0.0436369%
City Pleasant Hill Contra Costa 0.013% 0.0106309%
City Richmond Contra Costa 0.146% 0.1201444%
City San Pablo Contra Costa 0.018% 0.0148843%
City San Ramon Contra Costa 0.021% 0.0176459%
City Walnut Creek Contra Costa 0.026% 0.0212132%
County Del Norte County Del Norte 0.114% 0.140% 0.1189608% County El Dorado County El Dorado 0.768% 0.939% 0.7980034% City Placerville El Dorado 0.015% 0.0127642%
City South Lake Tahoe El Dorado 0.081% 0.0665456%
County Fresno County Fresno 1.895% 2.318% 1.9693410%
City Clovis Fresno 0.065% 0.0536211%
City Coalinga Fresno 0.012% 0.0098554%
City Fresno Fresno 0.397% 0.3270605%
City Kerman Fresno 0.005% 0.0042534%
City Kingsburg Fresno 0.008% 0.0066167%
City Mendota Fresno 0.002% 0.0019387%
City Orange Cove Fresno 0.004% 0.0035607%
City Parlier Fresno 0.008% 0.0069755%
City Reedley Fresno 0.012% 0.0098804%
City Sanger Fresno 0.018% 0.0146135%
City Selma Fresno 0.015% 0.0127537%
County Glenn County Glenn 0.107% 0.131% 0.1116978%
County Humboldt County Humboldt 1.030% 1.260% 1.0703185% Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Arcata Humboldt 0.054% 0.0447660%
City Eureka Humboldt 0.117% 0.143% 0.1216284%
City Fortuna Humboldt 0.032% 0.0266837%
County Imperial County Imperial 0.258% 0.315% 0.2679006% DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 232
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City Brawley Imperial 0.011% 0.0087986%
City Calexico Imperial 0.019% 0.0152799%
City El Centro Imperial 0.158% 0.1302522%
City Imperial Imperial 0.006% 0.0048791%
County Inyo County Inyo 0.073% 0.089% 0.0754413%
County Kern County Kern 2.517% 3.079% 2.6159145%
City Arvin Kern 0.006% 0.0046425%
City Bakersfield Kern 0.212% 0.1747198%
City California City Kern 0.009% 0.0070820%
City Delano Kern 0.030% 0.0249316%
City McFarland Kern 0.003% 0.0025644%
City Ridgecrest Kern 0.015% 0.0120938%
City Shafter Kern 0.013% 0.0103417%
City Tehachapi Kern 0.009% 0.0073580%
City Wasco Kern 0.008% 0.0069861%
County Kings County Kings 0.293% 0.2413469%
City Avenal Kings 0.007% 0.0056335%
City Corcoran Kings 0.013% 0.0107032%
City Hanford Kings 0.027% 0.0226038%
City Lemoore Kings 0.016% 0.0131900%
County Lake County Lake 0.795% 0.6545389%
City Clearlake Lake 0.041% 0.050% 0.0426253%
City Lakeport Lake 0.021% 0.026% 0.0222964%
County Lassen County Lassen 0.319% 0.391% 0.3320610%
City Susanville Lassen 0.027% 0.0219295%
County Los Angeles County Los Angeles 13.896% 16.999% 14.4437559% Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Agoura Hills Los Angeles 0.005% 0.0040024%
City Alhambra Los Angeles 0.042% 0.0343309%
City Arcadia Los Angeles 0.033% 0.0267718%
City Artesia Los Angeles 0.001% 0.0005100%
City Azusa Los Angeles 0.026% 0.0210857%
City Baldwin Park Los Angeles 0.027% 0.0218520%
City Bell Los Angeles 0.008% 0.0068783%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 233
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City Bellflower Los Angeles 0.002% 0.0014485%
City Bell Gardens Los Angeles 0.014% 0.0114301%
City Beverly Hills Los Angeles 0.065% 0.0534897%
City Burbank Los Angeles 0.100% 0.0823132%
City Calabasas Los Angeles 0.006% 0.0048948%
City Carson Los Angeles 0.019% 0.0159805%
City Cerritos Los Angeles 0.005% 0.0039682%
City Claremont Los Angeles 0.010% 0.0082584%
City Commerce Los Angeles 0.000% 0.0002971%
City Compton Los Angeles 0.044% 0.0361882%
City Covina Los Angeles 0.028% 0.0229127%
City Cudahy Los Angeles 0.001% 0.0006020%
City Culver City Los Angeles 0.055% 0.0449894%
City Diamond Bar Los Angeles 0.001% 0.0006993%
City Downey Los Angeles 0.052% 0.0429994%
City Duarte Los Angeles 0.003% 0.0027261%
City El Monte Los Angeles 0.031% 0.038% 0.0318985%
City El Segundo Los Angeles 0.033% 0.0268020%
City Gardena Los Angeles 0.034% 0.0278088%
City Glendale Los Angeles 0.166% 0.1366586%
City Glendora Los Angeles 0.016% 0.0134411%
City Hawaiian Gardens Los Angeles 0.005% 0.0040549%
City Hawthorne Los Angeles 0.050% 0.0407833%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Hermosa Beach Los Angeles 0.018% 0.0145307%
City Huntington Park Los Angeles 0.023% 0.0190667%
City Inglewood Los Angeles 0.059% 0.0489195%
City La Cañada Flintridge Los Angeles 0.003% 0.0025565% City Lakewood Los Angeles 0.005% 0.0039971%
City La Mirada Los Angeles 0.010% 0.0081572%
City Lancaster Los Angeles 0.045% 0.0369689%
City La Puente Los Angeles 0.002% 0.0012999%
City La Verne Los Angeles 0.024% 0.0194190%
City Lawndale Los Angeles 0.002% 0.0017731%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 234
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City Lomita Los Angeles 0.004% 0.0031940%
City Long Beach Los Angeles 0.439% 0.3614151%
City Los Angeles Los Angeles 2.715% 3.321% 2.8218811%
City Lynwood Los Angeles 0.016% 0.0134345%
City Malibu Los Angeles 0.002% 0.0019269%
City Manhattan Beach Los Angeles 0.032% 0.0260686%
City Maywood Los Angeles 0.004% 0.0035528%
City Monrovia Los Angeles 0.031% 0.0254455%
City Montebello Los Angeles 0.030% 0.0250670%
City Monterey Park Los Angeles 0.031% 0.0256677%
City Norwalk Los Angeles 0.031% 0.0258228%
City Palmdale Los Angeles 0.046% 0.0375827%
City Palos Verdes Estates Los Angeles 0.006% 0.0053102% City Paramount Los Angeles 0.011% 0.0091483%
City Pasadena Los Angeles 0.146% 0.1200524%
City Pico Rivera Los Angeles 0.022% 0.0183333%
City Pomona Los Angeles 0.111% 0.0911933%
City Rancho Palos Verdes Los Angeles 0.002% 0.0012645%
City Redondo Beach Los Angeles 0.062% 0.0506992%
City Rosemead Los Angeles 0.003% 0.0028260%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City San Dimas Los Angeles 0.003% 0.0022016%
City San Fernando Los Angeles 0.013% 0.0104837%
City San Gabriel Los Angeles 0.018% 0.0147726%
City San Marino Los Angeles 0.009% 0.0073791%
City Santa Clarita Los Angeles 0.022% 0.0178167%
City Santa Fe Springs Los Angeles 0.031% 0.0257531%
City Santa Monica Los Angeles 0.158% 0.1298513%
City Sierra Madre Los Angeles 0.006% 0.0048646%
City Signal Hill Los Angeles 0.010% 0.0084884%
City South El Monte Los Angeles 0.005% 0.0039603%
City South Gate Los Angeles 0.020% 0.0166272%
City South Pasadena Los Angeles 0.012% 0.0095334%
City Temple City Los Angeles 0.005% 0.0039498%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 235
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City Torrance Los Angeles 0.112% 0.0919820%
City Walnut Los Angeles 0.006% 0.0047305%
City West Covina Los Angeles 0.049% 0.0404521%
City West Hollywood Los Angeles 0.013% 0.0108517%
City Whittier Los Angeles 0.032% 0.0260581%
County Madera County Madera 0.349% 0.427% 0.3630669%
City Chowchilla Madera 0.012% 0.0097332%
City Madera Madera 0.039% 0.0318441%
County Marin County Marin 0.564% 0.690% 0.5861325%
City Larkspur Marin 0.015% 0.0124697%
City Mill Valley Marin 0.020% 0.0168401%
City Novato Marin 0.028% 0.0229824%
City San Anselmo Marin 0.009% 0.0078062%
City San Rafael Marin 0.089% 0.0729823%
County Mariposa County Mariposa 0.084% 0.103% 0.0876131% County Mendocino County Mendocino 0.439% 0.536% 0.4558394% City Ukiah Mendocino 0.039% 0.0317153%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
County Merced County Merced 0.551% 0.674% 0.5724262%
City Atwater Merced 0.024% 0.0195846%
City Livingston Merced 0.006% 0.0045873%
City Los Banos Merced 0.020% 0.0165142%
City Merced Merced 0.061% 0.0500762%
County Modoc County Modoc 0.065% 0.080% 0.0678250%
County Mono County Mono 0.023% 0.029% 0.0242606%
County Monterey County Monterey 0.908% 1.111% 0.9437083% City Greenfield Monterey 0.006% 0.0050552%
City King City Monterey 0.005% 0.0037355%
City Marina Monterey 0.017% 0.0144098%
City Monterey Monterey 0.041% 0.0336540%
City Pacific Grove Monterey 0.009% 0.0074842%
City Salinas Monterey 0.094% 0.0776576%
City Seaside Monterey 0.023% 0.0191772%
City Soledad Monterey 0.007% 0.0060870%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 236
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County Napa County Napa 0.288% 0.352% 0.2994325%
City American Canyon Napa 0.017% 0.0136869%
City Napa Napa 0.078% 0.0642783%
County Nevada County Nevada 0.441% 0.539% 0.4579827%
City Grass Valley Nevada 0.024% 0.0197805%
City Truckee Nevada 0.003% 0.0023843%
County Orange County Orange 4.364% 5.339% 4.5363576%
City Aliso Viejo Orange 0.014% 0.0113841%
City Anaheim Orange 0.554% 0.678% 0.5759282%
City Brea Orange 0.086% 0.0708897%
City Buena Park Orange 0.087% 0.0714352%
City Costa Mesa Orange 0.124% 0.152% 0.1288366%
City Cypress Orange 0.033% 0.0271937%
City Dana Point Orange 0.001% 0.0005560%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Fountain Valley Orange 0.055% 0.0455980%
City Fullerton Orange 0.137% 0.168% 0.1425744%
City Garden Grove Orange 0.213% 0.1752482%
City Huntington Beach Orange 0.247% 0.302% 0.2568420%
City Irvine Orange 0.139% 0.170% 0.1442350%
City Laguna Beach Orange 0.047% 0.058% 0.0493043%
City Laguna Hills Orange 0.014% 0.0115457%
City Laguna Niguel Orange 0.001% 0.0007071%
City Laguna Woods Orange 0.001% 0.0006546%
City La Habra Orange 0.060% 0.073% 0.0621049%
City Lake Forest Orange 0.012% 0.0101249%
City La Palma Orange 0.012% 0.0095439%
City Los Alamitos Orange 0.008% 0.0069190%
City Mission Viejo Orange 0.014% 0.0117560%
City Newport Beach Orange 0.179% 0.1470134%
City Orange Orange 0.150% 0.1231320%
City Placentia Orange 0.029% 0.035% 0.0298912%
City Rancho Santa Margarita Orange 0.001% 0.0006296%
City San Clemente Orange 0.008% 0.010% 0.0086083%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 237
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City San Juan Capistrano Orange 0.008% 0.0065510%
City Santa Ana Orange 0.502% 0.614% 0.5213866%
City Seal Beach Orange 0.020% 0.0165891%
City Stanton Orange 0.035% 0.0291955%
City Tustin Orange 0.073% 0.0600341%
City Westminster Orange 0.104% 0.127% 0.1082721%
City Yorba Linda Orange 0.044% 0.0362223%
County Placer County Placer 1.045% 1.278% 1.0861002%
City Auburn Placer 0.017% 0.0141114%
City Lincoln Placer 0.031% 0.0255599%
City Rocklin Placer 0.076% 0.0625485%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Roseville Placer 0.196% 0.1616559%
County Plumas County Plumas 0.205% 0.251% 0.2128729%
County Riverside County Riverside 4.534% 5.547% 4.7128296% City Banning Riverside 0.017% 0.0143848%
City Beaumont Riverside 0.021% 0.0171135%
City Blythe Riverside 0.012% 0.0096714%
City Canyon Lake Riverside 0.000% 0.0001761%
City Cathedral City Riverside 0.067% 0.0553614%
City Coachella Riverside 0.021% 0.0173054%
City Corona Riverside 0.147% 0.1207083%
City Desert Hot Springs Riverside 0.024% 0.0200433%
City Eastvale Riverside 0.000% 0.0002747%
City Hemet Riverside 0.051% 0.0421792%
City Indio Riverside 0.056% 0.0457794%
City Jurupa Valley Riverside 0.001% 0.0008991%
City Lake Elsinore Riverside 0.021% 0.0172949%
City La Quinta Riverside 0.063% 0.0516732%
City Menifee Riverside 0.032% 0.0260909%
City Moreno Valley Riverside 0.137% 0.1130348%
City Murrieta Riverside 0.048% 0.059% 0.0497423%
City Norco Riverside 0.016% 0.0134542%
City Palm Desert Riverside 0.083% 0.0682465%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 238
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City Palm Springs Riverside 0.076% 0.0629862%
City Perris Riverside 0.009% 0.0076774%
City Rancho Mirage Riverside 0.052% 0.0431098%
City Riverside Riverside 0.268% 0.2206279%
City San Jacinto Riverside 0.010% 0.0085936%
City Temecula Riverside 0.022% 0.0180086%
City Wildomar Riverside 0.008% 0.0062500%
County Sacramento County Sacramento 3.797% 4.645% 3.9465887% Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Citrus Heights Sacramento 0.057% 0.0465312%
City Elk Grove Sacramento 0.130% 0.1066994%
City Folsom Sacramento 0.108% 0.0890850%
City Galt Sacramento 0.017% 0.0143704%
City Rancho Cordova Sacramento 0.008% 0.0067679%
City Sacramento Sacramento 0.721% 0.882% 0.7496530%
County San Benito County San Benito 0.106% 0.130% 0.1101417% City Hollister San Benito 0.027% 0.0225355%
County San Bernardino County San Bernardino 3.259% 3.987% 3.3878124% City Adelanto San Bernardino 0.008% 0.0066640%
City Apple Valley San Bernardino 0.025% 0.0207360%
City Barstow San Bernardino 0.015% 0.0122056%
City Chino San Bernardino 0.064% 0.0525893%
City Chino Hills San Bernardino 0.001% 0.0006388%
City Colton San Bernardino 0.031% 0.0253443%
City Fontana San Bernardino 0.112% 0.0920543%
City Grand Terrace San Bernardino 0.006% 0.0051051%
City Hesperia San Bernardino 0.035% 0.0291522%
City Highland San Bernardino 0.004% 0.0029061%
City Loma Linda San Bernardino 0.009% 0.0071188%
City Montclair San Bernardino 0.039% 0.0322108%
City Ontario San Bernardino 0.179% 0.1472934%
City Rancho Cucamonga San Bernardino 0.084% 0.0689431%
City Redlands San Bernardino 0.057% 0.0469150%
City Rialto San Bernardino 0.073% 0.0603206%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 239
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City San Bernardino San Bernardino 0.178% 0.1461880%
City Twentynine Palms San Bernardino 0.002% 0.0012605%
City Upland San Bernardino 0.052% 0.0424460%
City Victorville San Bernardino 0.033% 0.0269400%
City Yucaipa San Bernardino 0.016% 0.0128772%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Yucca Valley San Bernardino 0.003% 0.0021228%
County San Diego County San Diego 5.706% 6.980% 5.9309748% City Carlsbad San Diego 0.128% 0.1050485%
City Chula Vista San Diego 0.189% 0.231% 0.1961456%
City Coronado San Diego 0.044% 0.0359095%
City El Cajon San Diego 0.113% 0.0933582%
City Encinitas San Diego 0.061% 0.074% 0.0630289%
City Escondido San Diego 0.145% 0.1192204%
City Imperial Beach San Diego 0.014% 0.0118283%
City La Mesa San Diego 0.055% 0.068% 0.0575593%
City Lemon Grove San Diego 0.022% 0.0183911%
City National City San Diego 0.080% 0.0656808%
City Oceanside San Diego 0.213% 0.1753428%
City Poway San Diego 0.062% 0.0511040%
City San Diego San Diego 1.975% 2.416% 2.0531169%
City San Marcos San Diego 0.089% 0.0733897%
City Santee San Diego 0.033% 0.0268401%
City Solana Beach San Diego 0.017% 0.0138564%
City Vista San Diego 0.052% 0.0425144%
Consolidated San Francisco San Francisco 3.026% 3.702% 3.1457169% County San Joaquin County San Joaquin 1.680% 2.055% 1.7460399% City Lathrop San Joaquin 0.009% 0.0075394%
City Lodi San Joaquin 0.053% 0.0439484%
City Manteca San Joaquin 0.054% 0.0443454%
City Ripon San Joaquin 0.013% 0.0104219%
City Stockton San Joaquin 0.313% 0.383% 0.3256176%
City Tracy San Joaquin 0.084% 0.0692047%
County San Luis Obispo County San Luis Obispo 0.816% 0.999% 0.8484126% DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 240
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City Arroyo Grande San Luis Obispo 0.024% 0.0199053%
City Atascadero San Luis Obispo 0.029% 0.0240680%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City El Paso de Robles (Paso Robles) San Luis Obispo 0.043% 0.0353456% City Grover Beach San Luis Obispo 0.017% 0.0137881%
City Morro Bay San Luis Obispo 0.020% 0.0160922%
City San Luis Obispo San Luis Obispo 0.077% 0.0637841%
County San Mateo County San Mateo 1.074% 1.313% 1.1159599% City Belmont San Mateo 0.021% 0.0169860%
City Burlingame San Mateo 0.019% 0.0152537%
City Daly City San Mateo 0.044% 0.0363880%
City East Palo Alto San Mateo 0.013% 0.0103982%
City Foster City San Mateo 0.020% 0.0166101%
City Half Moon Bay San Mateo 0.004% 0.0031638%
City Hillsborough San Mateo 0.013% 0.0110029%
City Menlo Park San Mateo 0.015% 0.0126209%
City Millbrae San Mateo 0.013% 0.0105836%
City Pacifica San Mateo 0.016% 0.0130625%
City Redwood City San Mateo 0.056% 0.0463511%
City San Bruno San Mateo 0.021% 0.0172161%
City San Carlos San Mateo 0.013% 0.0108885%
City San Mateo San Mateo 0.052% 0.0425841%
City South San Francisco San Mateo 0.043% 0.0353943%
County Santa Barbara County Santa Barbara 1.132% 1.385% 1.1768968% City Carpinteria Santa Barbara 0.001% 0.0008938%
City Goleta Santa Barbara 0.004% 0.0028969%
City Lompoc Santa Barbara 0.047% 0.0389379%
City Santa Barbara Santa Barbara 0.122% 0.1004559%
City Santa Maria Santa Barbara 0.058% 0.0479179%
County Santa Clara County Santa Clara 2.404% 2.941% 2.4987553% City Campbell Santa Clara 0.014% 0.0112566%
City Cupertino Santa Clara 0.008% 0.0066824%
City Gilroy Santa Clara 0.025% 0.0202891%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 241
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Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Los Altos Santa Clara 0.013% 0.0103338%
City Los Gatos Santa Clara 0.013% 0.0103220%
City Milpitas Santa Clara 0.036% 0.0298120%
City Morgan Hill Santa Clara 0.015% 0.0124619%
City Mountain View Santa Clara 0.041% 0.0334608%
City Palo Alto Santa Clara 0.039% 0.0323080%
City San Jose Santa Clara 0.294% 0.360% 0.3054960%
City Santa Clara Santa Clara 0.067% 0.0549723%
City Saratoga Santa Clara 0.004% 0.0034161%
City Sunnyvale Santa Clara 0.053% 0.0434069%
County Santa Cruz County Santa Cruz 0.783% 0.957% 0.8135396% City Capitola Santa Cruz 0.020% 0.0168191%
City Santa Cruz Santa Cruz 0.143% 0.1180348%
City Scotts Valley Santa Cruz 0.015% 0.0126525%
City Watsonville Santa Cruz 0.063% 0.0520136%
County Shasta County Shasta 1.095% 1.339% 1.1380191%
City Anderson Shasta 0.024% 0.0198896%
City Redding Shasta 0.284% 0.2334841%
City Shasta Lake Shasta 0.004% 0.0031993%
County Siskiyou County Siskiyou 0.228% 0.279% 0.2373393% County Solano County Solano 0.760% 0.6260795%
City Benicia Solano 0.031% 0.0253903%
City Dixon Solano 0.016% 0.0130849%
City Fairfield Solano 0.109% 0.0897317%
City Suisun City Solano 0.021% 0.0176183%
City Vacaville Solano 0.119% 0.0976497%
City Vallejo Solano 0.167% 0.1373644%
County Sonoma County Sonoma 1.218% 1.490% 1.2661290%
City Healdsburg Sonoma 0.032% 0.0266929%
City Petaluma Sonoma 0.081% 0.0667507%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 242
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City Rohnert Park Sonoma 0.041% 0.0340759%
City Santa Rosa Sonoma 0.184% 0.1519070%
City Sonoma Sonoma 0.022% 0.0183438%
City Windsor Sonoma 0.016% 0.0129298%
County Stanislaus County Stanislaus 1.722% 1.4182273%
City Ceres Stanislaus 0.041% 0.0340260%
City Modesto Stanislaus 0.217% 0.1788759%
City Newman Stanislaus 0.006% 0.0046964%
City Oakdale Stanislaus 0.018% 0.0145531%
City Patterson Stanislaus 0.015% 0.0126590%
City Riverbank Stanislaus 0.010% 0.0085699%
City Turlock Stanislaus 0.065% 0.0531966%
County Sutter County Sutter 0.306% 0.374% 0.3179548%
City Yuba City Sutter 0.074% 0.0606242%
County Tehama County Tehama 0.213% 0.261% 0.2216654%
City Red Bluff Tehama 0.014% 0.0117771%
County Trinity County Trinity 0.082% 0.101% 0.0855476%
County Tulare County Tulare 0.809% 0.990% 0.8410949%
City Dinuba Tulare 0.014% 0.0116929%
City Exeter Tulare 0.004% 0.0032479%
City Farmersville Tulare 0.003% 0.0027879%
City Lindsay Tulare 0.007% 0.0057111%
City Porterville Tulare 0.021% 0.0171845%
City Tulare Tulare 0.037% 0.0302273%
City Visalia Tulare 0.066% 0.0545872%
County Tuolumne County Tuolumne 0.486% 0.594% 0.5047621% County Ventura County Ventura 2.192% 2.681% 2.2781201%
City Camarillo Ventura 0.002% 0.0012815%
City Fillmore Ventura 0.002% 0.0020294%
City Moorpark Ventura 0.008% 0.0067337%
Participating
Subdivision
Classification
Participating Subdivision County Abatement
Percentage
Plaintiff
Subdivision
Percentage
Weighted
Allocation
Percentage
City Oxnard Ventura 0.156% 0.190% 0.1617338%
City Port Hueneme Ventura 0.021% 0.0174145%
City San Buenaventura (Ventura) Ventura 0.085% 0.0702181% DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 243
APPENDIX 1
14 of 15
City Santa Paula Ventura 0.014% 0.0119072%
City Simi Valley Ventura 0.065% 0.0533043%
City Thousand Oaks Ventura 0.022% 0.0179902%
County Yolo County Yolo 0.357% 0.437% 0.3713319%
City Davis Yolo 0.055% 0.0451747%
City West Sacramento Yolo 0.066% 0.0544321%
City Woodland Yolo 0.058% 0.0477904%
County Yuba County Yuba 0.214% 0.262% 0.2225679%
City Marysville Yuba 0.014% 0.0112079%
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 244
1 APPENDIX 2
Cost Reimbursement Procedure
1. Additional defined terms:
a) Costs means the reasonable amounts paid for the attorney and other City Attorney and County Counsel staff time for individuals employed by a Plaintiff Subdivision at the contractual rate, inclusive of benefits and overhead, together with amounts paid for court reporters, experts, copying, electronic research, travel, vendors, and the like, which were not previously reimbursed and which were paid or incurred (i) prior to December 31, 2022 in litigation against any Opioid Defendant and/or (ii) in negotiating and drafting any CA Allocation Agreement(s) concerning a settlement with any Opioid Defendant(s).
Costs does not include attorneys’ fees, costs, or expenses incurred by private contingency fee counsel. No part of the CA Abatement Accounts Fund will be used to reimburse Costs.
b) First Claims Date means October 1, 2023 or when all applications for reimbursement of Costs, in whole or in part, from funds available under Section IX and Exhibit R of the Walgreens Settlement Agreement, Section XIV and Exhibit R of the Teva Settlement Agreement, Section XIII and Exhibit R of the Allergan Settlement Agreement, Section X and Exhibit R of the Distributor Settlement Agreement, Section XI and Exhibit R of the Janssen Settlement Agreement, Section X and Exhibit R of the CVS Settlement Agreement, or Section IX and Exhibit R of the Walmart Settlement Agreement, have been finally determined under the provisions of those agreements, whichever comes first. c) Special Master means a retired judicial officer or former public lawyer, not presently employed or retained by a Plaintiff Subdivision, who will aggregate, review, and determine the reasonable Costs to be awarded to each Plaintiff Subdivision that submits a claim for reimbursement of Costs. The Special Master will be selected by a majority vote of the votes cast by Plaintiff Subdivisions, with each such subdivision having one vote. d) Plaintiff Subdivision Committee means the committee of Plaintiff Subdivisions that will review and approve the invoices submitted by the Special Master reflecting his or her reasonable time and expenses.
2. Cost Reimbursement to Plaintiff Subdivision
a) Purpose. Substantial resources have been expended to hold Opioid Defendants accountable for creating and profiting from the opioid crisis, and this effort has been a significant catalyst in creating National Opioid Settlements with various manufacturers, distributors, and chain pharmacies.
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DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 245
2 b) Claims Procedure.
i. If a Plaintiff Subdivision is eligible to seek reimbursement of Costs, in whole or in part, from funds available under Section IX and Exhibit R of the Kroger Settlement Agreement, Section IX and Exhibit R of the Walgreens Settlement Agreement, Section XIV and Exhibit R of the Teva Settlement Agreement, Section XIII and Exhibit R of the Allergan Settlement Agreement, Section X and Exhibit R of the CVS Settlement Agreement, Section IX and Exhibit R of the Walmart Settlement Agreement, Section X or Exhibit R of the Distributor Settlement Agreement, or Section XI or Exhibit R of the Janssen Settlement Agreement, it must first make a timely application for reimbursement from such funds. To allow sufficient time for determination of those applications, no claim for Costs to the CA Subdivision Fund under this Agreement may be made before the First Claims Date. ii. A Plaintiff Subdivision that wishes to be reimbursed from the CA Subdivision Fund must submit a claim to the Special Master no later than forty-five (45) days after the First Claims Date. The Special Master will then compile and redistribute the aggregated claim totals for each Plaintiff Subdivision via email to representatives of all the Plaintiff Subdivisions. A claim for attorney and staff time must list, for each attorney or staff member included in the claim, the following information: name, title, total hours claimed, hourly rate (including, if sought, benefits and share of overhead), and narrative summarizing the general nature of the work performed by the attorney or staff member. For reimbursement of “hard” costs, the subdivision may aggregate across a category (e.g., total for travel costs). It is the intention of the Plaintiff Subdivisions that submission of documents related to reimbursement of Costs does not waive any attorney-client privilege or exemptions to the California Public Records Act.
iii. The Special Master may request, at his or her sole option, additional documents or details to assist in the final award of Costs.
iv. The Special Master will review claims for reasonableness and will notify each Plaintiff Subdivision of the final determination of its claim, and will provide a list of all final awards to all Plaintiff Subdivisions by email or, upon request, via First Class U.S. Mail. Any Plaintiff Subdivision may ask the Special Master to reconsider any final award within twenty-one (21) days. The Special Master will make a final determination on any such reconsideration request within thirty (30) days of receipt. v. Any decision of the Special Master is final and binding, and will be considered under the California Arbitration Act, Code of Civil Procedure section 1280 et seq. as a final arbitration award. Nothing in this agreement is intended to expand the scope of judicial review of the final award for errors of fact or law, and the Parties agree that they may only seek to vacate the award if clear and convincing evidence demonstrates one of the factors set forth in Code of Civil Procedure, section 1286.2, subdivision (a). Plaintiff Subdivisions will have fourteen (14) days after all final awards are made, together with any final determination of a request for DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 246
3 reconsideration, to seek review in the Superior Court of California, pursuant to Code of Civil Procedure, section 1285, where the State has filed its Consent Judgment. vi. The Special Master will prepare a report of Costs that includes his or her fees and expenses at least ninety (90) days before the Payment Date for each Annual Payment. The Special Master’s preparation of a report of Costs does not discharge a Plaintiff Subdivision’s reporting requirement under Section V(B)(2) of the Kroger Settlement Agreement.
vii. A member of the Plaintiff Subdivision Committee, which is a CA Participating Subdivision, will submit to the Settlement Fund Administrator and Kroger a report of the fees and expenses incurred by the Special Master pursuant to Section V(B)(2) of the Kroger Settlement Agreement.
c) Claims Priority and Limitation.
i. The Special Master will submit invoices for compensation of reasonable fees and expenses to the Plaintiff Subdivision Committee no later than ninety (90) days prior to the Payment Date for each Annual Payment. The Plaintiff Subdivision Committee will promptly review and, if reasonable, approve the Special Master’s invoice for compensation. The Plaintiff Subdivision Committee will submit approved invoices to the Settlement Fund Administrator for payment. The Special Master’s approved invoices have priority and will be paid first from the CA Subdivision Fund before any award of Costs, subject to the limitation in Section 2.c.v below. ii. Final Awards of Costs that do not exceed seventy-five thousand dollars ($75,000.00) will be paid next in priority after the Special Master’s approved invoices.
iii. Final Awards of Costs in excess of seventy-five thousand dollars ($75,000.00) will be paid proportionally from the funds remaining in that year’s Annual Payment. iv. Any claim for Costs that is not paid in full will be allocated against the next year’s distribution from the CA Subdivision Fund, until all approved claims for Costs are paid in full.
v. In no event will more than 50% of the total CA Subdivision Fund received in any year be used to pay Costs or the Special Master’s approved invoices. vi. In no event shall more than $28 million of the total CA Subdivision Funds paid pursuant to the Kroger Settlement Agreement, Walgreens Settlement Agreement, Teva Settlement Agreement, Allergan Settlement Agreement, Distributor Settlement Agreement, CVS Settlement Agreement, Janssen Settlement Agreement, and the Walmart Settlement Agreement be used to pay Costs.
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 247
4 d) Collateral Source Payments and Third-Party Settlement. i. In the event a Plaintiff Subdivision is awarded compensation, in whole or in part, by any source of funds created as a result of litigation against an Opioid Defendant for its reasonable Costs, it will reduce its claim for Costs from the CA Subdivision Fund by that amount. If a Plaintiff Subdivision has already received a final award of Costs from the CA Subdivision Fund, it will repay the fund up to the prior award of Costs via a payment to the Settlement Fund Administrator or notify the Settlement Fund Administrator that its allocation from the next and subsequent Annual Payments should be reduced accordingly. If the Plaintiff Subdivision is repaying any prior award of Costs, that repayment will occur as soon as is feasible after the Plaintiff Subdivision’s receipt of Cost funds from the collateral source, but no more than 90 days after its receipt from the collateral source. The Settlement Fund Administrator will add any repaid Costs to the CA Subdivision Fund. Any Plaintiff Subdivision that has submitted for reimbursement to any national fund and has not received a final determination by the First Claims Date may request that the settlement administrator withhold some or all of its payment from the CA Subdivision Fund in order to avoid repayment.
ii. In the event a Plaintiff Subdivision reaches a monetary settlement or compromise against any Opioid Defendant outside of the National Opioid Settlement, the monetary portion of such settlement, net of fees paid to outside contingency fee counsel and of funds earmarked strictly for abatement, will be credited against its Costs and the subdivision will be ineligible to recover those credited Costs from the CA Subdivision Fund. Plaintiff Subdivisions negotiating monetary settlements or compromises against any Opioid Defendant outside of the National Opioid Settlement will negotiate for funds to repay any Costs it previously received from the CA Subdivision Fund or for Costs it otherwise might be eligible to claim from the CA Subdivision Fund. If such a settlement is paid after all final approved claims for Costs by all Plaintiff Subdivisions are satisfied in full, the settling subdivision will reimburse the CA Subdivision Fund in that amount by making payment to the Settlement Fund Administrator to add to the CA Subdivision Fund in a manner consistent with the repayments described in section 2.d.i above.
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 248
1 APPENDIX 3
CALIFORNIA-SUBDIVISION BACKSTOP AGREEMENT
On August 6, 2021, Judge Polster of the US District Court for the Northern District of Ohio issued an Order (the Order), docket number 3814, in In Re National Prescription Opiate Litigation, MDL 2804, addressing contingent attorney fee contracts between political subdivisions eligible to participate in the Kroger Settlement and their counsel.
In light of the Order, and at the request of [SUBDIVISION], the [SUBDIVISION], its counsel [COUNSEL], and the California Attorney General, on behalf of the State of California, are entering into this California-Subdivision Backstop Agreement (Backstop Agreement). [SUBDIVISION] and [COUNSEL] intend this Backstop Agreement to constitute a State BackStop Agreement as that term is used in the Order and in Exhibit R (Agreement on Attorneys’ Fees, Costs, and Expenses) of the Kroger Settlement Agreement.
Pursuant to this Backstop Agreement, [SUBDIVISION] may, subject to the limitations of the Kroger Settlement Agreement and CA Kroger Allocation Agreement, as well as any other limitations imposed by law, use funds that it receives from the Kroger Settlement CA Subdivision Fund to pay a contingent fee to [COUNSEL]. Any such payment from [SUBDIVISION] to [COUNSEL], together with any contingency fees that [COUNSEL] may receive from the national Attorney Fee Fund, will not exceed a total contingency fee of [PERCENTAGE NOT TO EXCEED 15%] of the total gross recovery of [SUBDIVISION] from the Kroger Settlement.
[COUNSEL] certify that they first sought fees and costs from the Attorney Fee Fund created under the Kroger Settlement Agreement before seeking or accepting payment under this backstop agreement. [COUNSEL] further certify that they are not seeking and will not accept payment under this backstop agreement of any litigation fees or costs that have been reimbursed through prior settlements or judgments.
The Attorney General is executing this agreement solely because the definition of “State BackStop Agreement” in Exhibit R of the Kroger Settlement Agreement requires such agreements to be between “a Settling State” and private counsel for a participating subdivision. Neither the California Attorney General nor the State of California have any obligations under this Backstop Agreement, and this Backstop Agreement does not require the payment of any state funds to [SUBDIVISION], [COUNSEL], or any other party.
[DATE] [SUBDIVISION SIGNATURE BLOCK]
[DATE] [COUNSEL SIGNATURE BLOCK]
[DATE] [ATTORNEY GENERAL SIGNATURE BLOCK]
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 249
BY E-MAIL
2001 M Street, NW Suite 600
Washington, DC 20036
+1 202 682 7000 tel
+1 202 857 0940 fax
March 28, 2024
Chantale Fiebig
+1 (202) 682-7200
[email protected]
David Jones
Supervising Deputy Attorney General
Healthcare Rights & Access Section
Department of Justice
1300 I Street
Sacramento, CA 95814
Phone: (916) 210-7861
Email: [email protected]
Re: Kroger Opioids Settlement Agreement
Dear Mr. Jones:
This letter summarizes the agreement reached between Kroger and the State of California regarding the multistate Kroger Settlement Agreement dated March 22, 2024 regarding opioid claims by states and subdivisions (the "Multistate Kroger Settlement Agreement").
The Kroger Co. and all of its direct and indirect subsidiaries ("Kroger"), and the State of California, by and through its Attorney General Rob Bonta, have agreed to the following modification to the Multistate Kroger Settlement Agreement in its application to California. For the avoidance of doubt, the limited modification set forth below applies only to California and to no other state or territory.
The “Prescription Red Flag” described in Section IX(5)(a) of Exhibit P to the Multistate Kroger Settlement Agreement is modified in its entirety to read as follows:
A Controlled Substance prescription fails to meet the requirements of law. For the sake of clarity, minor deficiencies in the patient’s name, address, date of birth, or contact information are not a red flag if the pharmacist, in his or her professional judgment and usual course of practice, is able to resolve these deficiencies with the patient.
This limited California-specific modification was a necessary condition for California's decision to signon as a participating state to the Multistate Kroger Settlement Agreement.
For the avoidance of doubt, all other terms and provisions in the Multistate Kroger Settlement Agreement remain the same, including without limitation all “Prescription Red Flags” not specified above, all DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 250
David Jones
March 28, 2024
definitions, all release provisions, the eleven-year-payment schedule and all other terms and provisions of the payment schedule, and all other terms and provisions.
These terms and this letter shall be included in a stipulated judgment to be filed in a Superior Court in the State of California.
Sincerely,
Chantale Fiebig
Counsel for The Kroger Co.
SO AGREED BY AND ON BEHALF OF THE STATE OF CALIFORNIA:
________________________________
Name: David A. Jones
Title: Supervising Deputy Attorney General
Date: March 29, 2024
DocuSign Envelope ID: ED2D25F2-C328-496F-A0F1-2F7A8DE77FB2 251
252
CITY OF PALM DESERT
CITY MANAGER’S OFFICE
INTEROFFICE MEMORANDUM
Date: July 11, 2024
To: Honorable Mayor and Councilmembers
From: Anthony J. Mejia, City Clerk
Subject: City Council Meeting of July 11, 2024
Below you will find questions received from the Mayor or Councilmembers and answers provided by City staff regarding tonight’s City Council meeting:
ITEM 2a: STUDY SESSION: IMPERIAL IRRIGATION DISTRICT’S ENERGY INFRASTRUCTURE
PARTNERSHIP
Q1: Regarding the IID substation, is it correct that we will not be liable for the $5 million in bonds, as we will either be reimbursed by other property owners or indirectly through increased sales tax revenue over several years
A1: The City would front the initial cash outlay to get the substation underway and then require payback agreements prior to the landowners developing their properties. The City may be out $1- $3 million over the next decade or two depending on the speed of development. Without the substation, the property owners are frozen out.
ITEM 13a: APPROVAL OF CITY COUNCIL, SUCCESSOR AGENCY, AND HOUSING AUTHORITY
MINUTES
After further review, the City Clerk recommends the approval of the June 27, 2024, City Council Meeting minutes with the following revision:
15a. APPEAL OF THE BUILDING BOARD OF APPEALS DETERMINATION OF THE CHIEF BUILDING OFFICIAL’S APPLICATION OF THE 2022 CALIFORNIA RESIDENTIAL CODE, SECTION R310.1 (EMERGENCY ESCAPE AND RESCUE)
Dylan Guzel, provided closing remarks on behalf of the City, asserted that there are regulations that businesses are required to follow that homeowners do not in order to protect the public; asserted that this action is not considered a regulatory taking as the City stated the room was never intended to be a bedroom, the City did not sell or advertise the unit, and the City upheld the Code at the time of construction.
Dylan Guzel, Deputy City Attorney, provided closing remarks on behalf of the City; pointed out that a vacation rental is a commercial endeavor which is subject to regulations similar to other businesses; noted these regulations are in place for the public health and safety during emergencies; asserted that the County Assessor’s Office statements regarding the number of bedrooms are based on a visual floorplan inspection without comparison to the California Building Codes and pointed out these representatives are not official building inspectors, architects, engineers, or professionals in that capacity; opined that the City’s actions are not a regulatory taking as the City has consistently applied the building code standard that dens cannot be used as a sleeping room and had no role in the advertising or marketing of the property. 253
06/27/2024 Question & Answer Memo
Carrie Kropfl, Appellant, provided closing remarks; stated she represents the innocent victims; urged the City prepare a disclosure form for short-term rental operators and renters, and send a cease and desist letter to Monterey Country Club property management.
Carrie Kropfl, Appellant, provided closing remarks; voiced support for allowing potential renters to sign a disclosure form regarding the use of a den as a sleeping room; asserted that other communities have advertised dens attached to an atrium as bedrooms and that Coachella Valley cities need to address false advertising, including the City of Palm Desert issuing a cease and desist letter to the Monterey County Club management; opined that the City’s interpretation will impact not only vacation rental owners but also all properties with a similar floorplan, leading to a reduction of a bedroom and decreased property values.
ITEM 13b: APPROVAL OF WARRANT REGISTERS
Q1: Where is the $13 million coming from to buy the parcels? (Page 43) A1:The sale of the property at Desert Willow (DW) is $4.6 million. That’s the only amount coming from the City. There are a few transactions happening in this one register:
1. The City is buying the property (DW Parking Lot) from the SARDA at Fair Market Value ($4.6M) from our Golf Amenity Fees - Capital Funds (441) with the first wire - #57353787.
2. The 2nd and 3rd wires are a result of staff reaching out to the County due to a stale dated check.
The County of Riverside lost the SARDA check ($4.4M) related to the sale of land from SARDA to Vitalia/Pacific West for affordable housing, so we canceled payment and reissued wire #71465195. The additional $16k, was a separate part of that transaction as well - #71465387.
3. The SARDA then sent the $4.6M proceeds (DW Parking Lot) to the County of Riverside for distribution to the various taxing entities - #72032577.
Ultimately, the City (as a taxing entity) will receive a small apportionment from each of these transactions. Those proceeds are then deposited into the Economic Development Fund upon receipt.
ITEM 13g: ADOPT RESOLUTION OPTING INTO SETTLEMENT AGREEMENT WITH
DISTRIBUTORS OF OPIOIDS, GROCERY CHAIN KROGER, AND FUTURE PROPOSED
OPIOD SETTLEMENTS
Q1: What is the estimated amount that the City is expected to receive from this settlement? A1: Based on the amount awarded to the State of California and our other settlement allocations, an estimate could be around $40,000 disbursed over 11 years. 254
06/27/2024 Question & Answer Memo
ITEM 13j: AWARD CONTRACT TO PBK ARCHITECTS, INC., FOR ARCHITECTURAL DESIGN SERVICES OF FIRE STATION 33 AND 71 (CFA00017 & CFA00019) Q1: This item includes the recommendation to demolish and rebuild Station 71. Is this item intended to approve that recommendation? If so, could you provide more information on the following aspects:
a. What is the justification for this recommendation given that a rebuild costs $1,272,905 more than renovation?
b. What is the plan for timing and provision of services during the demolition and rebuild process?
c. How will service disruptions be managed, considering that renovations can be done in stages to minimize disruptions, whereas demolition and rebuild inherently include delays? A1: Staff estimates that the construction will take approximately 12-14 months. The current plan involves setting up temporary housing for both Fire Stations during this period to minimize impacts on response times. We considered moving staff to other Fire Stations and having FS 102 assist with calls from FS 67. However, current trends indicate that assistance from FS 102 to FS 71 will be limited. CalFire Chiefs support the recommendation for temporary housing.
FS 33 has ample space to accommodate a temporary site. However, FS 71 is located on a small parcel, making it impossible to host temporary housing and construction activities simultaneously.
Therefore, staff is exploring nearby city-owned lots for temporary housing, bays, and equipment during construction. The goal is to minimize impacts on response times as much as possible. Staff will continue to adjust this plan as the design progresses.
The renovations will involve the demolition and structural reconfiguration of the building's interior, making it unsafe for Cal Fire staff to work in the building during construction.
ITEM 13k: AWARD ON-CALL CONTRACTS TO MULTIPLE VENDORS FOR PARK AND
FACILITIES REPAIRS AND IMPROVEMENT PROJECTS
Q1: What has been the budgeted dollar amount for these CIP projects in previous years? This year's budget is $5.3 million.
A1: Although the on-call facilities maintenance and repair agreements can be utilized to complete task orders for capital projects, staff primarily utilize the agreements to accomplish updates on deferred maintenance or minor repair projects as needed. The budget for these agreements includes both capital and operations funding.
Previous fiscal years’ Park and Facilities CIP project budgets are below:
• Fiscal Year 24/25 $5.3 Million
• Fiscal Year 23/24 $4.0 Million, increased to $5.7
• Fiscal Year 22/23 $3.5 Million
• Fiscal Year 21/22 $2.0 Million
255
06/27/2024 Question & Answer Memo
ITEM 13l: AWARD CONTRACT NO. C47680 TO JACOBSSON ENGINEERING CONSTRUCTION, INC., FOR THE EL PASEO CURB RAMP MODIFICATION PROJECT (PROJECT CST00025)
Q1: Can you provide the additional cost of undertaking this project as a standalone effort compared to incorporating it into the overall repaving scheduled for 2025? A1: Staff did not anticipate additional costs would be incurred by the City from splitting the project into two phases. The concrete work that will be constructed in Phase I of the project is typically performed by a subcontractor and the prime contractor marks up the subcontractors bid 10-15% to cover administration expenses related to the subcontract. By bidding the concrete work and the asphalt work separately staff expects the markup will be eliminated.
Q2: This item refers to curb and gutter work intended to be completed "in the summer of 2024." As it is now July 10th, could you please provide an updated timetable for this work? Given the current date, is it still feasible to complete the project within the summer timeframe? A2: The project will begin construction by August 1, 2024, and will be completed by September 15, 2024.The intent is to complete the project before the beginning of the busy season.
ITEM 13n: REJECT ALL PROPOSALS SUBMITTED FOR COURTESY PATROL SERVICES AT THE
HOUSING AUTHORITY PROPERTIES
Q1: Why did Courtesy Patrol Services decline to renew their contract? A1: The current service provider indicated that they are facing difficulties in securing the necessary insurance coverage, which has been an ongoing issue.
ITEM 13o: REJECT ALL BIDS, APPROPRIATE FUNDS, AUTHORIZE THE CITY MANAGER TO
AWARD A CONTRACT FOR THE CIVIC CENTER PARKING LOT REHABILITATION PROJECT IN AN AMOUNT NOT TO EXCEED $600,000
Q1: is this project for repaving or resealing/slurry?
A1: The entry/exit drive at Fred Waring is a re-pave, while the rest of the parking lot will be repaired as needed and slurry sealed. There is also a crosswalk near the Desert Recreation building that will be replaced with concrete. Please reference the “Area of Work Aerial” for further clarification.
ITEM 13s: APPROVE CONTRACT WITH FEHR & PEERS FOR THE PREPARATION OF A
GENERAL PLAN AMENDMENT TO THE MOBILITY ELEMENT IN AN AMOUNT NOT TO EXCEED $139,076 AND APPROPRIATE FUNDS
Q1: Can the language of the deliverables in Task 6 be revised to align with the broader scope described in the staff report, ensuring it includes collaboration with SunLine Transit Agency for a variety of public transit solutions, not just the evaluation of existing and proposed bus lines?
A1: This action will be included in Task 6 of the Scope of Work found in Exhibit A of the Professional Services Agreement. The formatting and text of the agreement for Task 6 has been revised to add a new bullet point for "Collaboration with SunLine Transit Agency ("STA") for a variety of public transit solutions". This will be in addition to the deliverable item for evaluation of existing and proposed bus lines. Staff has also revised task 3.1 to require collaboration with STA. 256
06/27/2024 Question & Answer Memo
ITEM 14d: CONSIDERATION FOR APPROVAL OF A PORTION OF PUBLIC RIGHT-OF-WAY (EXPLORER DRIVE) IS “EXEMPT SURPLUS LAND” PURSUANT TO GOVERNMENT CODE SECTION 54221
Q1: Is this decision consistent with our previous surplus land/right-of-way decision that we voted on in South Palm Desert a few months ago?
A1: There is a small sliver of property that was missed in the original land sale to Refuge that needs to be addressed. Therefore, this portion of the city right-of-way was not in the City’s Central Inventory. The process will be consistent with the Surplus Land Act (SLA) requirements. Once the SLA process is cleared, the same per square foot charge will be applied to this property as was used in the initial sale.
ITEM 14e: ADOPT RESOLUTION APPROVING FINAL TRACT MAP NO. 38434-1 AND
AGREEMENTS
Q1: Could you provide the zoning rules that applied to the vacant land at the time when the property was developed and homes were sold on the south border of this development? Specifically, what was the maximum allowable height? Additionally, if there have been any changes to these zoning rules, when did they occur?
A1: In October 1995, during the original approval of residential Tract 28258, the vacant land ("Refuge Site") was designated PR-5 (Planned Residential 5 dwelling units/acre). The PR zoning designation allowed buildings up to two-stories with a maximum height of 24', with a minimum setback of 100' from the project perimeter for all two-story, detached, single-family structures.
In June 2012, as a requirement of State Housing Element law, the City approved a change of zone for a 38-acre portion of the Refuge Site from PR-5 to Planned Residential 20 dwelling units per acre (PR-20). The development standards for the PR zoning district did not substantially change until 2017.
In August 2017, as a part of a general plan consistency update, the City approved a change of zone for the entire vacant Refuge Site to PR-20 and amended the PR zoning district to allow threestory buildings with a maximum height to 40'-0", with a minimum setback of 100' from the project perimeter for all two-story, detached, single-family structures. 257
1 Revised 07-2023
BBK 72500.00001\32374915.1
CITY OF PALM DESERT
PROFESSIONAL SERVICES AGREEMENT
1. Parties and Date. This Agreement is made and entered into this 11th day of July, 2024, 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 (“City”) and FEHR & PEERS an S Corporation, with its principal place of business at 100 PRINGLE AVENUE, SUITE 600, WALNUT CREEK, CA 94596("Consultant").
The 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:
Amendment of the Palm Desert Mobility (Circulation) Element of the General Plan (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 supply the services for the Project ("Services") as 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 July 1, 2024, to June 30, 2025, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than TWO additional one-year terms. Contractor 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 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 07/11/2024
Item 13s
Revised Agreement
258
Contract No. C48060
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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 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 as expeditiously as is required by the Schedule of Services and the standard of care applicable to Consultant’s Services. Upon reasonable 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 in accordance with this Agreement .
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: JASON D. PACK.
3.2.5 City's Representative. The City hereby designates Nick Melloni, Principal Planner, or his/her 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 JASON D. PACK, or his/her 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 exercising that degree of care, skill, and diligence ordinarily exercised by professionals performing similar services in the same or similar locale and under similar circumstances that of Consultant under this Agreement . 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 259
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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 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; (5) pandemics, epidemics or quarantine restrictions; or (6) any other causes beyond the reasonable control of the defaulting or delayed Party. 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 shall be grounds for the City to terminate the Agreement for cause. 260
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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. (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 261
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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.
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. (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 262
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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 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 263
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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.
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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 ONE HUNDRED, AND THIRTY-NINE THOUSAND AND SEVENTY-SIX DOLLARS ($139,076) 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. 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 from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
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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 performed in accordance with this Agreement to the date of termination, 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 of Services under this Agreement. Consultant shall be required to provide such document and 266
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other information within fifteen (15) days of the request, provided, however, City pays Consultant for its Services performed in accordance with this Agreement.
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 performed in accordance with this Agreement y, 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: FEHR & PEERS
3750 UNIVERSITY AVENUE, SUITE 225
RIVERSIDE, CA 92501
ATTN: JASON D. PACK, PRINCIPAL
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
ATTN: Nick Melloni, Development Services Department
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 267
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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 the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 268
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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 reasonable 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 negligent 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 reasonable 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 to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 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.
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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 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 270
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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 FEHR & PEERS
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:
Isra Shah
Best Best & Krieger LLP
City Attorney
FEHR &PEERS, an S Corporation
By:
Sarah Brandenberg
Vice President
By:
Lysa Wollard
Chief Financial Officer / Treasurer
QC: MN
Insurance:
_________
Initial Review
_________
Final Approval
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Contract No. C48060
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT “A”
SCOPE OF SERVICES
The Consultant shall provide full professional services to assist the City of Palm Desert Development Services Staff with an update of the City’s Circulation Element, also known as the Mobility Element of the General Plan.
Task 1: Project Management
Task 1.1: Kick-Off Meeting
The consultant will work with the City’s Project Manager to schedule a project kickoff meeting.
The consultant will prepare a draft agenda to discuss the project schedule and goals, and to confirm the approach to the transportation technical analyses, including travel demand modeling assumptions, roadway network scenarios, and the analysis scenario years. The team will also discuss available data sources and traffic count locations. Additionally, the consultant will discuss contract management and invoicing to ensure timely submittal pf invoices in accordance with City requirements.
Task 1.2: Regular Project Meetings
Recurring monthly meetings will be scheduled between the consultant and City staff to review analyses, deliverables, discuss findings, raise any issues or concerns, and provide an update on next steps.
Task 1.3: Contract Management
The consultant will submit monthly progress reports and invoices. The progress reports will recap work associated with the monthly invoice.
Task 1 Deliverables:
1.Kick-Off Meeting Agenda, including project schedule, data needs, regular status updates/meetings, and invoicing.
2.Monthly check-in calls/meetings (agendas and meeting minutes will be provided).
3.Monthly invoices and progress reports.
Task 2: Existing Conditions
Task 2.1: Data Collection and Review
The consultant’s initial review will include a review of relevant documents including the current General Plan, recent CEQA documents, regional planning documents (such as the Congestion Management Plan (CMP), Regional Transportation Plan (RTP), Area and Specific Plans, documents prepared by CVAG, local transit/active transportation plans, recent traffic impact studies prepared for new development, and any other planning documents that would provide additional information relative to the Circulation Update effort. The purpose of this review is to identify existing data needs and determine which of the previous data collection and mapping efforts can be employed in this analysis.
Task 2.2: Existing Conditions Assessment
Using the data collected in Task 2.1, a background technical report will be prepared documenting existing conditions in the area. This will include a regulatory context summarizing recent legislative requirements the General Plan should consider, existing roadway network classifications, existing and proposed active transportation facilities, transit service, existing truck and rail facilities, and relevant census information such as commute trip information, mode split information, and relative locations of where Palm Desert residents work and vice versa. Key issues and opportunities will be documented in this report. This report will also summarize the Streetlight traffic count data on study roadway segments and will highlight areas where traffic counts have changed significantly since the 2016 assessment was completed. 273
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Exhibit “A”
Revised 07-2023
BBK 72500.00001\32374915.1
The consultant will prepare a draft background technical report and submit it to the City for one round of consolidated comments.
Task 2.3: Safety Assessment
The consultant will analyze publicly available collision information to summarize roadway collision trends that will assist in identifying a High Injury Network (HIN) as required by SB 932. This HIN network will be used to supplement and inform policies in this element update. The consultant will also work with the City to better understand and reference the City’s Vision Zero Strategy study.
These findings will be provided in a series of charts that will be included in the existing conditions background technical report.
Task 2.4: Update Travel Demand Model
The consultant will utilize either the latest version of the RIVCOM travel demand model or the previously developed City model for this effort. Next, any proposed changes in land use and the roadway network will be updated in the model. The model will be used to compare the Adopted General Plan Circulation Element and the proposed Circulation Element Update with any associated land use changes.
It is anticipated that this traffic model will be employed for the following purposes:
•Testing roadway network and classification alternatives •Analyzing the level of service at study roadway segments •Forecasting VMT for the City using a couple of different methods. This can be used to better understand how VMT can/should be incorporated into the City’s policy document and to help inform VMT guidelines for the City.
Task 2 Deliverables:
1.List and map of study segments for Streetlight data collection
2.Draft background technical report, including safety assessment
3.Final background technical report, including safety assessment Task 3: Alternatives Development
Task 3.1: Engagement & Coordination
The consultant will meet with City Staff, and other agencies, to review transportation network issues and needs based on existing and expected network operations. This engagement must include collaboration SunLine Transit Agency for a variety of public transit solutions. Additionally, the consultant will hold one council workshop to review current issues and potential opportunities with various stakeholders.
Task 3.2: Roadway Network Alternatives Development
It is anticipated that up to two (2) proposed alternatives will be developed consisting of roadway network, lane, classification, and/or truck routing changes. The updated travel demand model will be used to determine a single preferred roadway network alternative for a future year model. The consultant will discuss with City Staff the appropriate approach to developing forecasts for this effort.
Task 3 Deliverables:
1. Council issues and opportunities workshop materials and attendance
2. Memorandum documenting input from stakeholders, proposed alternatives, and VMT differences for each alternative
Task 4: SB 743 Transportation Impact Assessment Guidelines The consultant shall prepare updated Transportation Study Guidelines that cover both the CEQA requirements under SB 743, as well as the City’s desire to maintain Level of Service (LOS) requirements. The consultant will review the City’s current Transportation Study Guidelines and state requirements provided by the Governor’s Office of Planning and Research. 274
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Exhibit “A”
Revised 07-2023
BBK 72500.00001\32374915.1
The consultant will prepare detailed guidelines that explain how to prepare a VMT assessment for screening out projects, as well as how to prepare a VMT analysis for projects that do not screen out. The consultant will also work with City Staff to identify areas of the City where the LOS expectations may need to change. Changes will be incorporated into the Transportation Study Guidelines. Maps will be prepared to identify development locations that screen out of VMT assessment.
Task 4 Deliverables:
1.Draft Transportation Study Guidelines
2.Final Transportation Study Guidelines
Task 5: Roadway Network Recommendations
Task 5.1: Roadway Network Alternatives Modeling
The consultant will model up to two roadway network changes. As part of this exercise, they will calculate the VMT changes associated with the roadway network alternatives.
Task 5.2: Roadway Classifications and Roadway Network Recommendations The consultant will review the results of the alternative roadway network analyses and develop recommendations for altering functional operations and mobility within each roadway classification. These recommendations may consist of changes to roadway classifications or network changes, such as vacating roadway segments, adding or reducing capacity to existing roadways, and/or safety or operational improvements. These changes will consider potential effects on other transportation modes, such as pedestrians, bicyclists, and public transit. The consultant will also review existing truck routes and recommend changes to support industrial development and goods movement. Changes will also include a review of roadway cross-sections to ensure consistency within the General Plan (e.g. consistency with the area plans within the document) and consistency with other planning documents in the City (like the ATP).
Task 5 Deliverables:
1.Draft Technical Memorandum recommending changes to roadway classifications and/or the City roadway network
2.VMT modeling showing change in VMT
3. Present proposed changes (a PowerPoint presentation and present at one (1) meeting)
4.Final Technical Memorandum recommending changes to roadway classifications and/or the City roadway network with input from meeting incorporated per City Staff’s direction Task 6: Circulation Element Update:
Based on recommendations provided in Task 5 and discussions with City Staff, the consultant will develop an initial set of transportation policies related to various items for incorporating into the Circulation Element Update, including but not limited to:
•VMT transportation impacts
•Level of Service (LOS)
•Maximum allowable roadway cross sections
•Consistency with other state laws (e.g. SB 330, SB 35) •Coachella Valley Passenger Rail Service
•Transit System including an evaluation of existing and proposed transit lines •Collaboration with SunLine Transit Agency for a variety of public transit solutions •Transportation Demand Management (TDM)
•Safety and Vision Zero Strategies
•Emergency Evacuation Routes
These policy changes will address changes in state law, specifically AB 1358 (Complete Streets requirement), SB 932 (Safe Systems and Vision Zero Approach requirement), SB 743, and SB 330 (clarifying roadway improvement requirements for new housing developments). 275
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Exhibit “A”
Revised 07-2023
BBK 72500.00001\32374915.1
The consultant will develop the initial policies and present these policies to City Staff for review.
The consultant will combine the information developed in the previous tasks into a comprehensive Circulation Element (including text, graphics, and policies). An implementation matrix will also be prepared to align action steps with added and edited policies.
Task 6 Deliverables:
1Draft Circulation Element Update and Implementation Matrix
2.Final Circulation Element Update Implementation Matrix Task 7: CEQA
The focus of the project will be to update the Circulation Element of the General Plan to create better guidance on meeting Vehicle Miles Travelled (VMT) reductions, improve safety by incorporating Vision Zero, and review of the policies to ensure they meet the needs of the City.
The project consultant shall prepare the necessary documentation to ensure compliance with the California Environmental Quality Act (CEQA). The Consultant shall prepare necessary steps for compliance with Senate Bill-18 Tribal Consultation. Completion of the SB 18 process is needed prior to acting on the project.
This scope does not include:
•Public distribution of document
•Attendance at public hearings
•Copies
•Filing fees
•Technical studies (i.e. traffic, AQ, GHG, Noise)
Task 7 Deliverables:
1.Administrative Draft and Public Draft Addendum, SB-18 Tribal Consultation Letters, Notice of Determination, Notice of Completion.
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Contract No. C48060
Exhibit “B”
Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT "B"
SCHEDULE OF SERVICES
(SEE FOLLOWING PAGE)
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Contract No. C48060
Exhibit “C”
Revised 07-2023
BBK 72500.00001\32374915.1
EXHIBIT "C"
COMPENSATION
In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be increased or reduced each year at the time of renewal, but any increase shall not exceed the Consumer Price Index, All Urban Consumers, Riverside-San Bernardino-Ontario, CA. (SEE FOLLOWING PAGE)
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CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Thomas Soule, Public Affairs Manager
REQUEST: APPOINT MAHASTI ISLAMI TO THE BOARD OF DIRECTORS OF THE
EL PASEO PARKING AND BUSINESS IMPROVEMENT DISTRICT
RECOMMENDATION:
Appoint Mahasti Islami to a two-year term beginning July 1, 2024, through June 30, 2026, on the Board of Directors of the El Paseo Parking and Business Improvement District (EPPBID) Board of Directors, to fill the seat vacated by Sonia Campbell.
BACKGROUND/ANALYSIS:
Per its bylaws, the EPPBID Board has a process for filling vacancies that differs from the City's other committees and commissions. The bylaws require that applicants be interviewed by a membership subcommittee, which then reports its findings to the entire Board. The Board then, by majority vote, recommends a candidate to the City Council to fill the vacancy.
The appointment of Ms. Islami to the Board will fill a vacant position formerly held by Sonia Campbell that expires at the end of June 2025. Ms. Islami, who represents La Fe Wine Bar, brings a wealth of marketing experience to the Board, having previously worked as the Marketing Director at The Gardens on El Paseo and in the same capacity at Desert Hills Premium Outlets.
Legal Review:
This report has been reviewed by the City Attorney’s office.
Appointed Body Recommendation:
At a special meeting on June 19, 2024, the EPPBID Board of Directors voted unanimously to recommend to the City Council that Mahasti Islami be appointed to the Board.
FINANCIAL IMPACT:
There is no fiscal impact associated with this action.
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PALM DESERT HOUSING AUTHORITY
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Neal Ennis, Project Manager
REQUEST: APPROVE CHANGE ORDER NO. 4 FOR THE ONE QUAIL PLACE PARKING LOT REHABILITATION PROJECT NO. CHA00003 (812-20) RECOMMENDATION:
1. Approve Change Order No.4 in an amount not to exceed $280,647 to Contract No. HA45140 with Jacobsson Engineering Construction, Inc.
2. Authorize the Executive Director or designee to execute Change Order No. 4 to the agreement and any documents necessary to effectuate the actions taken herewith.
BACKGROUND/ANALYSIS:
The Palm Desert Housing Authority manages a 384-unit affordable housing complex known as One Quail Place located at 72600 Fred Waring Drive, Palm Desert, California 92260. The parking lot at One Quail Place required major rehabilitation, including, but not limited to, the asphalt concrete and Portland cement concrete through the parking areas, carport replacement, and ADA deficiencies which led to the creation of the One Quail Parking Lot Rehabilitation Project (CHA00003).
The construction contract for this project was awarded to Jacobsson Engineering Construction Inc. for an amount not to exceed of $2,274,467.70 plus $454,893.54 in contingency. Since that time there have been three change orders requested due to unforeseen circumstances.
Contract Description Amount
Contract No. HA45140* 1QP Parking Lot Improvements $2,247,467.70 C/O #1* Demo and replace carports $601,000
C/O #2 Failing Drainpipes and Sink Hole $47,097
C/O #3 Increase mill and overlay to 4” $370,629.90
GRAND TOTAL $3,266,194.60
*Plus contingency – balance remaining $97,266.64
Change Order No. 4
While implementing this project, additional unanticipated issues were discovered that require another change order. During the on-going carport installation, large foundations (as large as 6’ wide x 6’ long x 6’ tall) were discovered. This was not anticipated at bid time. The cost of the oversized foundations is included in this request, additional larger equipment, trucking and labor required to complete the task. This was accomplished on Daily Extra Work Tickets at a cost of $85,958 to complete.
The requirement for spike strips at the entry and exit gates was identified and relayed to the Capital Projects Department. The cost for spike strip installation is $28,909. 281
Palm Desert Housing Authority
Authorize Additional Funding for the One Quail Place Parking Lot Rehabilitation Project
It was also discovered that two failing carports were demolished and not included in the project.
The cost for 2 additional eight-stall carports is $165,780.
The three issues identified here total $280,647. Although the Executive Director has the authority to approve change orders within the contingency amount, the current contingency balance is $97,266.64 and the cost exceeds his authority. Therefore, staff requests approval of Change Order No. 4 in an amount not to exceed $280,647.
Appointed Body Recommendation:
The Housing Commission will review this recommendation at its regular meeting on July 10, 2024. Upon request, a verbal report will be provided at the Authority’s regular meeting on July 11, 2024.
FINANCIAL IMPACT:
Funds are available for this Change Order within the Housing Authority’s Capital Replacement budget. There is no financial impact to the City’s General Fund. The funding breakdown is as follows:
Contract Description Amount
Contract No. HA45140* 1QP Parking Lot Rehab $2,247,467.70 C/O #1* Demo and replace carports $601,000
C/O #2 Failing Drainpipes and Sink Hole $47,097
C/O #3 Increase mill and overlay to 4” $370,629.90
GRAND TOTAL $3,266,194.60
C/O #4
(2) Additional Carports $165,780.00
Spike Strips $28,909.00
Oversized Footings $85,958.00
GRAND TOTAL- WITH THIS REQUEST $3,573,841.60
ATTACHMENTS:
1. Large Footing Photo
2. Additional Work Ticket Example
3. Carport Footing Removals
4. Spike Strip Quote
5. Carport Quote
6. Change Order No. 4 HA45140 One Quail Place
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To: City Of Palm Desert Contact: Ryan Gayler
Project Name: One Quail Place - Spike Strips & Adjacent Signage Bid Number: 220663 Palm Desert, CA 92260 USA Fax:
Address: 73-510 Fred Waring Drive Phone: (760) 346-0611 Project Location: 72600 Fred Waring Dr, Palm Desert, CA Bid Date: 2/7/2024 Line # Item # Item Description Estimated Quantity Unit Unit Price Total Price R&R Tire Spikes And Repair Tire Spike Signage
01 Remove And Replace Existing Tire Spikes With 8.00 EACH $3,260.00 $26,080.00 Tire Shark Model 3750
02 Perform Repairs On Existing Tire Spike Signage 3.00 EACH $943.00 $2,829.00 Total Price for above R&R Tire Spikes And Repair Tire Spike Signage Items: $28,909.00 Total Base Bid Price: $28,909.00
Additonal Tire Spikes
03 Install Additional Tire Spikes Per Manufacturer 4.00 EACH $2,410.00 $9,640.00 Recommendations
Total Price for above Additonal Tire Spikes Items: $9,640.00 ACCEPTED:
The above prices, specifications and conditions are satisfactory and hereby accepted.
Buyer:
Signature:
Date of Acceptance:
CONFIRMED:
Jacobsson Engineering
Authorized Signature:
Estimator:
2/15/2024 9:12:34 AM Page 1 of 1
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To: City Of Palm Desert Contact: Ryan Gayler
Project Name: One Quail Place - Carport Footing Removals Bid Number: 220747 Palm Desert, CA 92260 USA Fax:
Address: 73-510 Fred Waring Drive Phone: (760) 346-0611 Project Location: 72-600 Fred Waring Dr, Palm Desert, CA Bid Date: 5/17/2024 Addendum #: ADDED SCOPE
Item # Item Description Estimated Quantity Unit Unit Price Total Price 001 Remove And Dispose "Standard" Carport Footing 84.00 EACH $698.00 $58,632.00 002 Remove And Dispose "Oversize" Carport Footing 10.00 EACH $1,915.00 $19,150.00 003 Remove Existing Carport Structure 2.00 EACH $4,088.00 $8,176.00 Total Bid Price: $85,958.00
ACCEPTED:
The above prices, specifications and conditions are satisfactory and hereby accepted.
Buyer:
Signature:
Date of Acceptance:
CONFIRMED:
Jacobsson Engineering
Authorized Signature:
Estimator: Erik Jacobsson
(760) 345-8700 [email protected]
5/14/2024 3:14:25 PM Page 1 of 1
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September 2023
PALM DESERT
HOUSING AUTHORITY
CONTRACT CHANGE ORDER
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 Time Extension
Revised Contract Time
Attachments
1. Justification
Description of Changes Decrease
In Contract Price
Increase
In Contract Price
Spike Strips
Net Change in Contract Price:
Contract No / P.O. #:
Change Order No.:
Contingency: YES NO
Account No.:
Project No.:
Vendor No.:
Contract Name (“Contract”):
Contractor Name (“Contractor”):
Change Order Date:
HA45140 P116369
4 8714195-4331100
CHA00003
V0002883
One Quail Place Parking Lot Rehabilitation
Jacobsson Engineering Construction, Inc.
July 11th 2024
2 EA additional 8 parking stall carports
Oversize Footing Removal. $85,958.00
$28,909.00
$280,647.00
No additional days
90 days from commencement
Cost proposal
While the carport installations were ongoing, large foundations were discovered that were not anticipated, as large as 6’ wide x 6’ long x 6’ tall. This was not anticipated at bid time. The cost of the oversized foundations is included in this request, additional larger equipment, trucking and labor was required. This was accomplished on Daily Extra Work Tickets and cost $85,958.00 to complete.
The requirement for spike strips at the entry and exit gates was identified and relayed to the Capital Projects Department. The pricing for spike strip installation was priced at $28,909.00.
While implementing this project, it was discovered that two failing carports were demolished and not accounted for, and this project, which installed 15 carports, needs to install 17 carports to account for 384 covered parking spaces. The cost for 2 additional eight-stall carports is $165,780.00. This cost is included in the request for additional funding which totals $280,647.00. $165,780.00
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Contract No. HA45140 Contract Change Order No. 4 . Continued from Front September 2023
In consideration of the change(s) described above, the Contract Price is adjusted as follows:
The original Contract Price was
Net change by previously authorized Change Orders
The Contract Price prior to this Change Order was
The Contract Price will be changed by this Change Order in the amount of The new Contract Price including this Change Order will be .
.
.
.
$ 2,274,467.70
$ 1,018,726.90
$_ 3,293,194.60
$__ 280,647.00
$_ 3 ,573,841.60 .
The amount of the Contract will be increased by the sum of:
Two-Hundred Eighty Thousand Six-Hundred Forty Seven dollars and 00/100 ($280,647.00) 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:
______________________
Executive Director
NOTE: No payments will be made prior to Executive Director and Housing Authority approval QC: .
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CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Lucero Leyva, Senior Project Manager, Capital Projects REQUEST: AWARD CONTRACT TO PBK ARCHITECTS, INC., FOR
ARCHITECTURAL DESIGN SERVICES OF FIRE STATION 33 AND 71 (CFA00017 & CFA00019)
RECOMMENDATION:
1. Award Contract for the Architectural Design Services for Fire Station 33 and 71 in an amount not to exceed of $1,397,000.
2. Authorize the Director of Finance to set aside a 10% contingency in the amount of $139,700 for unforeseen conditions.
3. Authorize the City Manager or designee to review and approve written contract amendment requests up to the contingency amount requested.
4. Authorize the Mayor or designee to execute the agreement and any documents necessary to effectuate the actions taken herewith.
BACKGROUND/ANALYSIS:
Building Assessment:
On January 26, 2023, the City Council awarded the Building Assessment contract of Fire Station 33 and 71 to PBK Architects, Inc. As part of the assessment, PBK reviewed the ADA compliance reports, completed on-site assessments, and evaluated the current state of the mechanical, electrical, and plumbing equipment at each fire station. Their final report provided recommendations for repairs to the building infrastructure and floorplan improvements to optimize operations as well as estimated construction cost for a remodel versus a new build of each fire station.
Building Renovation New Build
Fire Station No. 33 $5,978,157 $11,727,810
Fire Station No. 71 $4,953,555 $6,226,460
Based on the report provided, and a Return-on-Investment Analysis completed by City staff, the recommendation is to proceed with the remodel of Fire Station 33, and a complete demolition and rebuild of Fire Station 71.
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City of Palm Desert
Award Contract to PBK Architects, Inc., for Architectural Design Services of Fire Station 33 & 71
Architectural Design Services Procurement and Analysis:
A Request for Proposal (RFP) for Architectural Design Services of Fire Stations 33 and 71 was advertised on May 15, 2024, via OpenGov, and seven (7) proposals were received on June 6, 2024.
Firm Name Location Proposed Fee*
BFK Architecture + Planning Pasadena, CA $1,351,800
Marks Architects, Inc Palm Desert, CA $1,590,000
PBK Architects, Inc Rancho Cucamonga, CA $1,240,000
Prest Vuksic Greenwood Architects Palm Desert, CA $1,445,000 Roesling Nakamura Terada Architects, Inc. San Diego, CA $1,450,045 Rubio Medina, Architect Irvine, CA $1,059,368
The Taylor Group Architects Clovis, CA $1,161,300
*Proposed Fees exclude additional services to remain consistent with comparison An internal selection committee was created for this RFP, which included representatives from the Public Works Department, Finance Department, Capital Projects Department and CalFire.
The committee evaluated the proposals and agreed to invite the following four firms to interview:
BFK Architecture + Planning
PBK Architects, Inc.
Rubio Medina, Architect
The Taylor Group Architects
After completing the interviews, the committee met to discuss the different presentations and came to the consensus that PBK Architects, Inc., was the most qualified to meet the City’s needs based on their:
Extensive Fire Station Design Experience
Qualifications and Experience of the Team
Understanding of Fire Station Operations
Design and Operational Approach to oversee both fire stations Knowledge of the City of Palm Desert’s entitlement process Currently, City staff is working with PBK Architects, Inc., on the new Fire Station 102 project, located on the north side of the city. Both City Staff and Cal Fire Representatives describe the firm and its team members as efficient in reviewing and recommending design options/alternatives, maintaining communication, addressing concerns, providing solutions, and meeting design deadlines. All references contacted have also provided positive feedback and confirmed that PBK Architects, Inc., is a great firm to work with. 302
City of Palm Desert
Award Contract to PBK Architects, Inc., for Architectural Design Services of Fire Station 33 & 71
Staff recommends awarding the Architectural Design Services contract to PBK Architects, Inc., in an amount not to exceed $1,397,000 to include reimbursables and additional services that may be necessary due to unknown building and site conditions.
Description Fee
Architectural Services 1,240,000
Additional Services (Topographic Survey,
Geotechnical Investigation, Hazardous Materials
Survey, Environmental Planning, SWPPP Document)
137,000
Reimbursable 20,000
Awarded Contract Amount 1,397,000
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
Funds for this project were included in the approved Capital Improvement Project (CIP) list for Fiscal Year 2024-25 under the Fire Fund Account No. 2304220-4400100. There is no financial impact to the General fund from this action.
The following table provides the current project budget:
Fund Project Number FY 2024-25
Budget
Proposed
2304220-4400100 CFA00017 – Fire Station 33 500,000
CFA00019 – Fire Station 71 450,000
2304220-4400100 FY 24-25 Reallocated Budget* 600,000
Project Budget: 1,550,000
Pending PBK Architects, Inc., Contract (#33) 687,000
PBK Architects, Inc., Contract (#71) 690,000
Reimbursable 20,000
10% Contingency 139,700
Total this Contract plus Contingency 1,536,700
Remaining Budget 13,300
*FY2024-25 Fire Fund CIP Budget - $450k reallocated from $12M for Station 102 based on timing of projects.
ATTACHMENTS:
1. Palm Desert Fire Station 33 & 71 Assessment
2. Professional Services Agreement
3. PBK Architects, Inc., Proposal
303
304
Fire Station 4
City of Laguna Beach
PROPOSAL FOR DESIGN SERVICES
KELLEY NEEDHAM, AIA
MANAGING PARTNER
8163 Rochester Avenue
Rancho Cucamonga, CA 91730
P: (909) 987-0909
C: (909) 238-7030
E: [email protected]
City of Palm DesertFS 33 & 71 Assessments
305
City of Palm Desert
Project No. 00230001 Page 1
City of Palm Desert
Assessment Reports for FS 33 & 71
Table of Contents
City of Palm Desert Fire Station 33 and 71 Assessments Page
1.0 Introduction …………………………………….…………………………………..…………...…….……………….2 Introduction/Approach/ Scope of Work
2.0 Development Options …………………………………………………………………………………………………3 Development Site and Floor Plan Options…………….…………………….……………………..……………...4
3.0 Conceptual Cost Estimates ………………………………………………………………………….……………….9
4.0 Existing Building Evaluations ……………………………………………………………………………..………..…14 DRAFT
1317
306
Palm Desert Fire Station 33 & 71 Assessments Page 2
1.0 Introduction
The objective of this report is to provide an evaluation and assessment of existing Fire Stations 33 and 71 in the City of Palm Desert to determine the expenditures that would be necessary to bring the existing facilities to current fire department standards and to meet the 2022 California Building Code as well as the Essential Services Building Seismic Act. The City has already completed an Accessibility Assessment of each fire station with DAC Consultants and the findings of the assessment can be found in the Appendix of this report. PBK’s MEP consultants have also performed assessments of the mechanical, plumbing, and electrical systems of the stations as well and those findings are also included in the Building Evaluations section of this report.
The PBK Team has reviewed the conditions of each fire station and site and have created Development Options to correct deficiencies and provide improvements to bring these fire stations to present standards.
Our team has also developed estimates based on the development options and recommendations for upgrades from our consultant team and Design Access Consultants reports for ADA accessibility.
The results of this report will provide the decision makers the information necessary to move forward to the next stage of the process so that the City of Palm Desert increase the level of emergency services to the public at large well into the future.
Special Planning and Design Considerations
Our design team reviewed each of the sites with special consideration of three variables which are Seismic Safety, Mechanical, Plumbing and Electrical systems to meet the California 2022 Building Code, Essential Services standards and access for the physically challenged. The following is a narrative of these critical factors that are required to effectively carry out the mission of protecting life and property for the City of Palm Desert:
Seismic Safety
Fire Stations are defined as an essential services buildings type under the 1986 State of California Seismic Safety Act. Structural upgrade must provide the most cost-effective seismic safety solution that meets earthquake resistant requirements. Our structural engineer has conducted a Seismic Safety review of the two fire stations and the recommendations for upgrades are included in the Existing Building Evaluations section of this report.
Mechanical/Plumbing and Electrical Considerations
Environmental considerations represent other critical aspects. Individual environmental zones and separate climate controls maximize individual comfort and performance levels, and all systems must meet Title 24 Energy code requirements. Telecommunications and computer systems must be distinct and audible and integrated with internal access and dispatch communications. On-site, emergency power generation for all emergency facility loads should be provided in conjunction with an uninterrupted power system (UPS) of enough capacity to ensure complete disaster response capability to the community.
Access for the Physically Challenged
The fire stations must comply with State of California Disabled Access Requirements. Especially in spaces where the public will interface with fire personnel. Public parking, restrooms, service counters, door access and room signage must comply with all ADA requirements.
City of Palm Desert
Assessment Reports for FS 33 & 71
DRAFT
307
Palm Desert Fire Station 33 & 71 Assessments
2.0 Development Options
Fire Station No. 33
44400 Town Center Way
Palm Desert, CA 92260
Palm Desert Fire Station 33 & 71 Assessments Page 3 Page 3 308
EARTH BERM
EARTH BERM STORAGE YARD
EARTH BERM
PUBLIC
PARKING
EXISTING
BUILDING
FOOTPRINT TOWN CENTER WAY TRASH CREW PARKING
PROPERTY LINE
PROPERTY LINE
PARKING LOT DRIVEWAY
EARTH BERM
FRONT ENTRY EXISTING SITE PLAN
0' 8' 16' SCALE: 1" = 50' 08/09/2023
PALM DESERT FIRE STATION No. 33 N SITE AREA: 1.06 AC (46,103 SF) 309
STORAGE YARD
PUBLIC
PARKING
PROPOSED FIRE
STATION
RENOVATION TOWN CENTER WAY TRASH CREW PARKING
PROPERTY LINE
PROPERTY LINE PARKING LOT DRIVEWAY
(N)OUTDOOR
(N) RETAINING PATIO WALL
(N) PAVING PAVING
(N) LANDSCAPE
(N) LANDSCAPE
(N) RETAINING WALL RENOVATION SITE PLAN
0' 8' 16' SCALE: 1" = 50' 08/09/2023
PALM DESERT FIRE STATION No. 33 N SITE AREA: 1.06 AC (46,103 SF) 310
WORK SHOP
DW
MECHANICAL
LIQUIDS
STORAGE
ELECTRICAL DARK RM
STORAGE
HOSE TOWER
APPARATUS
ROOM
WOMEN'S DORM
LIBRARY
STATION
CAP.
TRAINING
OFFICER DAY WATCH
COMMUNICATIONS
CAPTAIN
BATTALION
CHIEF
BATTALION
CHIEF
FILES
LOCKERS
MEN'S DORMS
KITCHEN
FIRE MARSHALL ENTRY CONFERENCE
DIVISION CHIEF
CLERICAL MEN
JANITOR
MECH.
MEN WOMEN
DINING
DAYROOM
EXISTING FLOOR PLAN
0' 8' 16' SCALE: 1/16" = 1'-0" 08/09/2023
PALM DESERT FIRE STATION No. 33 N EXISTING BUILDING AREA: 11,447 SF 311
WORK SHOP
ELECTRICAL MECHANICAL DARK RM
HOSE TOWER
APPARATUS
ROOM
REF REF REF P
P
P
DORM 2
13'-0" x 7'-4" 96 S.F. DORM 3
13'-0" x 7'-4" 96 S.F. DORM 4
13'-0" x 7'-4" 96 S.F. DORM 6
7'-4" x 13'-0" 96 S.F. DORM 77'-4" x 13'-0" 96 S.F. DORM 87'-4" x 13'-0" 96 S.F. DORM 97'-4" x 13'-0" 96 S.F.
STORAGE BATH 4
6'-9" x 10'-10" 74 S.F. BATH 56'-9" x 10'-10" 74 S.F.
BATH 2
6'-9" x 10'-10" 74 S.F. BATH 36'-9" x 10'-10" 74 S.F. MEDICAL
STORAGE
12'-6" x 9'-0" 113 S.F. VEST
5'-0" x 9'-0" 45 S.F. DAYROOM
20'-0" x 21'-6" 430 S.F. KITCHEN
20'-0" x 16'-2" 323 S.F. DINING
20'-0" x 10'-4" 207 S.F. OFFICE
13'-6" x 9'-9" 132 S.F.
EXERCISE ROOM
28'-3" x 15'-0" 344 S.F.
LOBBY
6'-6" x 13-0" 84 S.F. PUBLIC
RESTROOM
8'-0" x 7-6" 60 S.F. STOR
STATION
OFFICE
10'-10" x 13'-0" 121 S.F. CREW
WORKSTATIONS
12'-2" x 13'-0" 158 S.F. DISPLAY
BC DORM
13'-6" x 9'-0" 122 S.F. OFFICE
13'-6" x 9'-9" 132 S.F.
STAFF
RESTROOM
8'-6" x 7-6" 64 S.F. BC OFFICE
22'-6" x 13'-0" 243 S.F.
BC
BATHROOM
8'-6" x 9'-0" 76 S.F. CUSTODIAN
8'-6" x 9'-0" 76 S.F. VEST
7'-0" x 9'-0" 49 S.F. VEST
5'-0" x 9'-0" 63 S.F. ADA
BATHROOM 1
12'-6" x 8'-4" 104 S.F. DORM 1
8'-6" x 11'-8" 99 S.F. W/D W/D WH LAUNDRY
13'-0" x 11'-8" 152 S.F.
DORM 5
13'-0" x 7'-4" 96 S.F. DORM 10
7'-4" x 13'-0" 96 S.F.
28 S.F. STOR COMM
7'-0" x 9'-0" 63 S.F. WORKROOM
8'-6" x 7'-6" 64 S.F. CONFERENCE
/TRAINING
16'-4" x 19'-6" 224 S.F. RENOVATION FLOOR PLAN
0' 8' 16' SCALE: 1/16" = 1'-0" 08/09/2023
PALM DESERT FIRE STATION No. 33 N NON-RENOVATED AREA: 5,899 SF RENOVATED AREA: 5,548 SF
ADDITION: 1,059 SF
TOTAL BUILDING AREA: 12,506 SF 312
Palm Desert Fire Station 33 & 71 Assessments
2.0 Development Options
Fire Station No. 33
44400 Town Center Way
Palm Desert, CA 92260
Fire Station No. 71
73995 Country Club Dr
Palm Desert, CA 92260 Palm Desert Fire Station 33 & 71 Assessments Page 6 Page 8 313
EXISTING
BUILDING
FOOTPRINT
COUNTRY CLUB PORTOLA
PROPERTY LINE
DRIVEWAY/ PARKING
DRIVEWAY/ PARKING
SECURED
PARKING
PATIO
PUBLIC
ENTRY
PAVING
LANDSCAPING
LANDSCAPING
LANDSCAPING EXISTING SITE PLAN
0' 8' 16' SCALE: 1" = 50' 08/09/2023
PALM DESERT FIRE STATION No. 71 N SITE AREA: 0.68 AC (29,596 SF) 314
PROPOSED
FIRE STATION
RENOVATION
COUNTRY CLUB DR PORTOLA AVE PROPERTY LINE
(N) DRIVEWAY REGRADE &
REPAVE
(N) DRIVEWAY REGRADE &
REPAVE PAVING PARKING LOT
LANDSCAPING
LANDSCAPING
LANDSCAPING
FRONT ENTRY
PATIO
RENOVATION SITE PLAN
0' 8' 16' SCALE: 1" = 50' 08/09/2023
PALM DESERT FIRE STATION No. 71 N SITE AREA: 0.68 AC (29,596 SF) 315
MEN'S DORMS DW REF M OVEN
C/W
C/D
WOMEN'S DORMS MEN'S R.R.
WOMEN'S R.R.
STOR.
GARAGE
EQUIP. ROOM
W.H.
SHOP OFFICE WATCH ROOM
ICE
PANTRY
KITCHEN
LOUNGE
YARD
STORAGE
GEN. ROOM
SLOPING CONCRETE HOSE RACK
EXISTING FLOOR PLAN
0' 8' 16' SCALE: 1/16" = 1'-0" 08/09/2023
PALM DESERT FIRE STATION No. 71 N EXISTING BUILDING AREA: 6,296 SF 316
MEN'S DORMS
C/W
C/D STOR.
GARAGE
EQUIP. ROOM
W.H.
SHOP OFFICE WATCH ROOM
ICE
YARD
STORAGE
GEN. ROOM
SLOPING CONCRETE HOSE RACK
BATH 1
7'-6" x 14'-6" 109 S.F. BATH 26'-3" x 14'-6" 91 S.F. BATH 36'-3" x 14'-6" 91 S.F.
DORM 1
7'-4" x 14'-0" 103 S.F. DORM 27'-4" x 14'-0" 103 S.F. DORM 37'-4" x 14'-0" 103 S.F. DORM 47'-4" x 14'-0" 103 S.F. DORM 57'-4" x 14'-0" 103 S.F. DORM 67'-4" x 14'-0" 103 S.F. DORM 77'-4" x 14'-0" 103 S.F. LOUNGE 14'-0" x 16'-0" 203 S.F. DW
REF M.O. x2
C H2O
ST REF REF
P
P
P
KITCHEN/DINING
14'-0" x 16'-0" 480 S.F.
RENOVATION FLOOR PLAN
0' 8' 16' SCALE: 1/16" = 1'-0" 08/09/2023
PALM DESERT FIRE STATION No. 71 N NON-RENOVATED AREA: 4,539 SF RENOVATED AREA: 1,757 SF
ADDITION: 0 SF
TOTAL BUILDING AREA: 6,296 SF 317
Palm Desert Fire Station 33 & 71 Assessments
4.0 Existing Building Evaluations
The following pages provide the existing building evaluations completed by the structural, mechanical/plumbing and electrical engineers.
STRUCTURAL/MECHANICAL/PLUMBING AND ELECTRICAL
FIRE STATION NO.33 Palm Desert Fire Station 33 & 71 Assessments Page 14 Page 17 318
1047 W. 6th Street, Ontario, CA 91762 • P 626.664.0092
Sacramento • San Francisco • San Jose • Pleasanton • Los Angeles • Ontario • Orange County • San Diego • Reno • Las Vegas • Phoenix • Washington, D.C. Puerto Rico • Mexico • Costa Rica • Colombia • Haiti • Italy • Turkey • Uzbekistan • India • Nepal • Thailand • Indonesia • Japan • New Zealand July 3, 2023
Mr. Kelley Needham,
PBK Architects
8163 Rochester Ave, Suite 100
Subject: Palm Desert Fire Station 33 Seismic Assessment Palm Desert Town Center
Hwy 111 and El Paseo
Palm Desert, CA
MI2228115
Dear Mr. Needham,
Per the request of PBK, our firm has performed a seismic assessment for the existing Palm Desert Fire Station 33. The assessment included a review of available as-built documents, a preliminary ASCE 41 evaluation and a field visitation, performed March 3, 2023. The filed visitation was provided to visually verify accessible structural components.
The as-built documents provided appear comprehensive, and include Architectural, Structural, Mechanical, Plumbing and Electrical. The documents included:
1982 Original Building Plans – 34 multi-discipline sheets.
Millard Archuleta Associates, Palm Desert Ca.
1.0 Project Description
The facility is a single-story building of approximately 14000 square feet, with a conventional wood frame system. The building utilizes a plywood horizontal diaphragm and plywood shearwall lateral system. The system is reasonably regular, possesses an apparent logical lateral load path. The original 1982 plywood shearwall layout is as identified Figure 1. The shearwall designations are indicated on the plan S2, and referenced to the shearwall schedule located on the same sheet.
Roof framing of the one story building consists of open web wood chord with steel web trusses spaced 24” o.c., with 2 x 14 joists spaced 12” o,c, at the roof mechanical area.
During the site visitation of March 3, 2023, an attempt to verify the framing is in general compliance with the documents. The ceiling construction appears to be entirely of hard lid assembly, with Gyp-board attached to the bottom of open web, steel chord trusses, and ceiling joists in lower ceiling areas. An attic access panel was located. The space between the ceiling an the trusses indicate that the fraing in that area, relects what is shown on the Structural Drawings. Access is extremely limited, and the observation is limited to the localized area in the vicinity of the access panel. See Photo 19 in Enclosure
3. The foundation system is concrete slab on grade with conventional concrete cast in place continuous and pad footings. All concrete is noted to be 2000 psi on sheet 1 of the as-built documents.