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. 768
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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. 770
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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. 771
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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 773
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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. 774
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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 775
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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 776
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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 777
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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 780
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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 781
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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. 782
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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 784
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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. 787
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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. 788
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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). 789
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Exhibit “A”
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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”
Revised 07-2023
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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)
792
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. 793
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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. 794
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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. 796
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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. 797
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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 799
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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. 800
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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 801
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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 802
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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 803
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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 806
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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 807
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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. 808
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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 810
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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. 813
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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. 814
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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). 815
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Exhibit “A”
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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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Exhibit “B”
Revised 07-2023
BBK 72500.00001\32374915.1
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: Ryan Gayler, Capital Projects Manager
REQUEST: AWARD CONTRACT NO. C47680 TO JACOBSSON ENGINEERING CONSTRUCTION, INC., FOR THE EL PASEO CURB RAMP
MODIFICATION PROJECT (PROJECT CST00025)
RECOMMENDATION:
1. Award Contract No. C47680 in the amount of $1,070,234 to Jacobsson Engineering Construction, Inc., of Palm Desert, CA, for the El Paseo Curb Ramp Modification Project (Project No. CST00025).
2. Authorize the Director of Finance to set aside a contingency in the amount of $107,000.
3. Authorize the City Attorney to make any non-monetary changes to the agreement.
4. Authorize the City Manager to review and approve written requests for the use of contingency per Section 3.30.170B of the municipal code.
5. Authorize the City Manager to execute the agreement and any documents necessary to effectuate this action.
6. Authorize the Mayor to execute the Notice of Completion (NOC) and the City Clerk to file the NOC upon satisfactory completion of the project.
BACKGROUND/ANALYSIS:
The rehabilitation of El Paseo from Highway 74, easterly to Highway 111 was scheduled for this summer. The project would have required the removal of the dining decks on El Paseo. There was concern that the operators of the dining decks did not have enough time to prepare for the removal and possible reconstruction. May 23, 2024, the City Council directed staff to split the El Paseo Street rehabilitation project over two years. The rehabilitation of concrete curb ramps, curb and gutter, cross gutters and other improvements that won’t impact the dining decks, are to be completed in the summer of 2024. In summer of 2025, the dining decks will be removed, and the asphalt concrete street will be rehabilitated.
The City advertised the project for bid and on June 25, 2024, five bids were received with the following results:
Contractor Location Bid Amount
Jacobsson Engineering Construction, Inc. Palm Desert, CA $1,070,234.00 LC Paving and Sealing Escondido, CA $1,227,225.00
Universal Construction Palm Desert, CA $1,356,620.00
Onyx Paving Anaheim, CA $1,999,000.00
CT&T Concrete Paving Diamond Bar, CA $2,521,532.89
819
City of Palm Desert
Award Contract No. C47680 for the El Paseo Curb Ramp Modification Project
The bid from Jacobsson Engineering Construction, Inc., was reviewed and found to be in compliance with the contract requirements. Jacobsson Engineering Construction, Inc., has successfully completed many projects for the City in previous years and staff has an excellent working relationship with this contractor.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
This project is being funded through Measure A funds that are included in the FY 2024-25 Approved Annual Budget and Capital Improvement Program. There is no impact to the General Fund with this action.
Project Funding Source Description
Allocated
Funds
Total Project
Cost including
contingency
Street Maintenance
Program
2134311-4332000 Measure A $1,200,000 $1,177,234
ATTACHMENTS:
1. Contract Agreement and Bonds
2. Contractor’s Proposal
3. Vicinity Map
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CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. C47680, is made and entered into this 11th day of July, 2024, by and between City of Palm Desert, a Charter City and 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, sometimes hereinafter called the “City” and Jacobsson Engineering Construction, Inc., sometimes hereinafter called “Contractor.” WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:
ARTICLE 1. SCOPE OF WORK.
The Contractor shall perform all Work within the time stipulated in the Contract, and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5, below, for the following Project:
EL PASEO CURB RAMP MODIFICATION PROJECT
PROJECT NO. CST00025
The project will make improvements to curb ramps, pedestrian facilities, curb and gutter, driveway approaches, and other infrastructure on El Paseo from Highway 74, easterly to Highway 111. The items of work consist of mobilization, traffic control, concrete removal, and constructing asphalt concrete and Portland cement concrete improvements.
Contractor is an independent contractor and not an agent of the City. The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation.
ARTICLE 2. TIME FOR COMPLETION.
Time is of the essence in the performance of the Work. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within 45 Calendar Days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
ARTICLE 3. CONTRACT PRICE.
The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of One Million Seventy Thousand Two Hundred Thirty-four and no cents Dollars ($1,070,234.00). Payment shall be made as set forth in the General Conditions. The City will pay to Contractor compensation based upon the prices set forth in the Bid Schedule. 821
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ARTICLE 4. LIQUIDATED DAMAGES.
Contractor acknowledges that the City will sustain actual damages for each and every Day completion of the Project is delayed beyond the Contract Time. Because of the nature of the Project, it would be impracticable or extremely difficult to determine the City’s actual damages. Accordingly, in accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $1,000.00 for each and every Day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture.
Notwithstanding the foregoing, City and Contractor acknowledge and agree that a milestone date of September 30, 2024 has been established whereby all work must be completed due to certain Special Events scheduled within the project limits that are to take place in October 2024. Consequently, the City and Contractor further acknowledge and agree that liquidated damages shall increase to $5,000.00 for each and every Day beyond the September 30, 2024 milestone date. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Section does not exclude recovery of other damages specified in the Contract Documents. Liquidated damages may be deducted from progress payments due Contractor, Project retention or may be collected directly from Contractor, or from Contractor's surety. These provisions for liquidated damages shall not prevent the City, in case of Contractor's default, from terminating the Contractor.
ARTICLE 5. COMPONENT PARTS OF THE CONTRACT.
The “Contract Documents” include the following:
Notice Inviting Bids
Instructions to Bidders
Bid Forms
Bid Acknowledgement
Bid Schedule
Bid Guarantee
Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration Form
Iran Contracting Act Certification
Public Works Contractor DIR Registration Certification
Performance Bond
Payment (Labor and Materials) Bond
Contract for Construction
General Conditions
Special Conditions
Specifications
Addenda
Construction Plans and Drawings
Standard Specifications for Public Works Construction “Greenbook”, latest edition, Except Sections 1-9
Standard Plans of the City of Palm Desert, latest edition Standard Plans for Public Works Construction, latest edition Caltrans Standard Specifications, latest edition, Except Division 1 822
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Caltrans Standard Plans, latest edition
California Manual on Traffic Control Devices for Streets and Highways (CAMUTCD), latest edition
Work Area Traffic Control Handbook, latest edition
Reference Specifications
Approved and fully executed Change Orders
Permits
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. In the event of conflict, the various Contract Documents will be given effect in the order set forth in the General Conditions. This Contract shall supersede any prior agreement of the parties.
ARTICLE 6. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE.
Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work.
ARTICLE 7. INDEMNIFICATION AND INSURANCE
A. Indemnification
1. To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify and hold harmless the City, its officials, officers, agents, employees, and representatives, and each of them from and against:
(a) Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officers, employees, or authorized volunteers (including passive negligence), except the sole negligence or willful misconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers;
(b) Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from Contractor’s Work during 823
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the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor’s construction of the improvements;
(c) Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor; (d) Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfully perform the Work and all of Contractor’s obligations under Contract.
Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.
2. Contractor shall immediately defend, at Contractor’s own cost, expense and risk, with the counsel of the City choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, agents, employees and representatives. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents, employees and representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse the City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code section 2782.
3. The provisions of this Article shall survive the termination of this Contract howsoever caused, and no payment, partial payment, or acceptance of occupancy in whole or part of the Work shall waive or release any of the provisions of this Article.
B. Insurance
1. Without limiting Contractor’s indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Contract, policies of insurance of the type and amounts described below and in a form that is satisfactory to City.
2. General Liability Insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $4,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
3. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury 824
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and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Contract, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
4. Umbrella or Excess Liability Insurance. Contractor may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Contractor may 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, automotive liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
(a) Pay on behalf of wording as opposed to reimbursement; and (b) Concurrency of effective dates with primary policies; and (c) Policies shall “follow form” to the underlying primary policies; and (d) Insureds under primary policies shall also be insureds under the umbrella or excess policies.
5. Workers’ Compensation Insurance. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for Contractor’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, its officers, agents, employees and volunteers.
6. Pollution Liability Insurance. (Reserved)
7. Builder’s Risk Insurance. (Reserved)
C.Other Provisions or Requirements
1. Proof of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 825
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2. Duration of Coverage. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representatives, employees or subcontractors.
Contractor must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. The City and its officers, officials, employees, and agents shall continue as additional insureds under such policies.
3. Primary/Non-Contributing. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
4. Products/Completed Operations Coverage. Products/completed operations coverage shall extend a minimum of three (3) years after project completion.
Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The City, its officials, officers, agents, and employees, shall be included as additional insureds under the Products and Completed Operations coverage.
5. City’s Rights of Enforcement. In the event any policy of insurance required under this Contract does not comply with these requirements, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor, or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Contract.
6. 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.
7. 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 and volunteers, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City, its elected or appointed 826
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officers, agents, officials, employees and volunteers and shall require similar written express waivers and insurance clauses from each of its subcontractors.
8. Enforcement of Contract Provisions (non estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
9. Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
10. Notice of Cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) Day notice of cancellation (except for nonpayment for which a ten (10) Day notice is required) or nonrenewal of coverage for each required coverage.
11. Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability policies shall provide or be endorsed to provide that the City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Coverage shall be at least as broad as coverage provided by ISO’s Owners, Lessees, or Contractors Additional Insured Endorsement for the ongoing (i.e. ISO Form CG 20 10 07 04) and completed operations (i.e. ISO Form CG 20 37 07 04) of Contractor.
12. 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.
13. Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
14. Pass Through Clause. Contractor agrees to ensure that its sub-consultants, subcontractors, and any other party involved with the Project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor 827
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agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the Project will be submitted to City for review.
15. City’s Right to Revise Requirements. The City or its Risk Manager reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor ninety (90) Days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor’s compensation.
If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice.
16. 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.
17. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Contract, and that involve or may involve coverage under any of the required liability policies.
18. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.
19. Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor 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. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
ARTICLE 8. PREVAILING WAGES.
Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at the City’s Office or may be obtained online at http://www.dir.ca.gov and which must be posted at the job site.
ARTICLE 9. FALSE CLAIMS.
Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that the False Claims Act, California Government Code sections 12650, et seq., provides for civil penalties where a person knowingly submits a false claim to a public entity. 828
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These provisions include within their scope false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. In the event the City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorneys’ fees.
Contractor hereby acknowledges that the filing of a false claim may the Contractor to an administrative debarment proceeding wherein Contractor may be prevented from further bidding on public contracts for a period of up to five (5) years. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year 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
JACOBSSON ENGINEERING
CONSTRUCTION, INC.
By:
DAN JACOBSSON, PRESIDENT
By:
ERIK JACOBSSON, TREASURER
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
(CONTRACTOR’S SIGNATURE MUST BE
NOTARIZED AND CORPORATE
SEAL AFFIXED, IF APPLICABLE)
END OF CONTRACT
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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BOND FORMS
Performance Bond
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Desert, a Charter City and 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, (hereinafter referred to as the “City”) has awarded to Jacobsson Engineering Construction, Inc., (hereinafter referred to as the “Contractor”) an agreement for Contract No. C47680, (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated June 12, 2024, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, Jacobsson Engineering Construction, Inc., the undersigned Contractor and ________________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of One Million Seventy Thousand Two Hundred Thirty-four and no cents DOLLARS, ($1,070,234.00), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one (1) year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officials, officers, employees, and authorized volunteers, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including reasonable attorney’s fees, incurred by the City in enforcing such obligation.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by the City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship.
The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under 832
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the Contract, law or equity, including, but not limited to, California Code of Civil Procedure Section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
i. Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
ii. Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
iii. Permit the City to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.
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IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20___.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges is $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety) ___________________________________________ ___________________________________________
___________________________________________
(Name and Address of Agent or ___________________________________________ Representative for service of ___________________________________________ process in California, if different ___________________________________________ from above)
(Telephone number of Surety ___________________________________________ and Agent or Representative for
service of process in California)
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 835
72500.00001\32656428.1
-16- CONTRACT & BOND FORMS
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached.
END OF PERFORMANCE BOND
836
72500.00001\32656428.1
-17- CONTRACT & BOND FORMS
Payment Bond (Labor and Materials).
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Palm Desert, a Charter City and municipal corporation organized and operating under the laws of the State of California (hereinafter designated as the “City”), by action taken or a resolution passed July 11, 2024, has awarded to Jacobsson Engineering Construction, Inc. hereinafter designated as the “Principal,” a contract for the work described as follows: Contract No. C47680 (the “Project”); and
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated June 12, 2024, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of One Million Seventy Thousand Two Hundred Thirty-four and no cents Dollars ($1,070,234.00) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Civil Code Section 9100, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Revenue and Taxation Code Section 18663, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of 837
72500.00001\32656428.1
-18- CONTRACT & BOND FORMS
any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or the City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of his claim.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of Contract, including but not limited to, the provisions of Sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
838
72500.00001\32656428.1
-19- CONTRACT & BOND FORMS
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 839
72500.00001\32656428.1
-20- CONTRACT & BOND FORMS
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.
END OF PAYMENT BOND
840
Item No. Description Quantity Units Unit Cost Total
1 Mobilization 1 LS $75,000.00 $75,000.00
2 Traffic Control 1 LS $116,865.00 $116,865.00
3 Clearing and Grubbing 1 LS $7,055.00 $7,055.00
4 Remove Palm Tree 4 EA $4,200.00 $16,800.00
5 Remove and reconstruct curb and gutter 750 LF $100.00 $75,000.00 6 Remove and reconstruct local depression 425 SF $27.00 $11,475.00 7 Remove and reconstruct sidewalk 2500 SF $18.50 $46,250.00 8 Remove and reconstruct ADA compliant curb ramp 8500 SF $25.00 $212,500.00 9 Remove and reconstruct 8" thick cross gutter,
valley gutter, or spandrel 9000 SF $27.00 $243,000.00
10 Remove and reconstruct commercial drive
approach 2300 SF $27.00 $62,100.00
11 Remove and reconstruct residential drive approach 4500 SF $22.00 $99,000.00 12 Construct tree well curb drain per detail on sheet 1 6 EA $508.00 $3,048.00 13 Adjust utility box and cover to finish grade 1 EA $251.00 $251.00 14 Remove and replace traffic signal pull box 17 EA $1,250.00 $21,250.00 15 Remove, investigate, repair and reconstruct
asphalt concrete sinkhole 1 LS $4,735.00 $4,735.00
16 Construct 8' x 8' x 1' PCC art pad and modify
electrical system 1 EA $4,405.00 $4,405.00
17 Remove, regrade, and reconstruct asphalt concrete
at driveway approach 2600 SF $27.50 $71,500.00
Total Base Bid $1,070,234.00
El Paseo Curb Ramp Modification Project
Base Bid
Jacobsson Engineering Construction, Inc.
841
842
MONTEREY AVE
ROYAL PALM DR
LAS
FLORES
LN
LAS PALMAS AVE
ALLEY
ALESSANDRO DR
ALLEY ALLEY
SAGE LN
ALLEY ALESSANDRO DR
PALM DESERT DR N
CLUB CIRCLE
DR
JUNIPER CIR
CLUB
CIRCLE
DR
JOSHUA TREE ST
SAN PABLO AVE
PALM DESERT DR N
PALM DESERT DR N
SAN GORGONIO WAYSAN
MATEO
AVE
SAN
MARCOS
SAN
AVE
DIEGO
AVE
SAN
MARCOS
AVE
SAN
ANTONIO
CIR
SAN
CLEMENTE
CIR
SAN
BENITO
CIR
ALLEY
SAN
PASCUAL AVE
SAN JUAN AVE
SAN LUIS REY AVE
SAN CARLOS AVE
SAN RAFAEL AVE
SAN JOSE AVE
SAN LUIS REY
AVE
SAN JOSE AVE
SAN JACINTO AVE
SAN JUAN AVE
PALM DESERT DR S SAGE LN
SANTA ANITA
HWY
74 GUADALUPE AVE GUADALUPE AVE
HAHN RD
TUMBLEWEED LN
SHADOW MOUNTAIN DR
PORTOLA AVE
LUPINE LN
JUNIPER ST
PINYON ST
HWY 111
CANDLEWOOD ST
PALM DESERT DR S
EL PASEO
PORTOLA AVE
VERBA SANTA DR
OCOTILLO DR
SHADOW MOUNTAIN DR
JOSHUA TREE ST
PRICKLY
PEAR LN
LARREA ST
SAN ANSELMO AVE
CATALINA WAY
SAN PABLO AVE
LUPINE LN
SAN PABLO AVE
LARKSPUR LN LARKSPUR LN
SHADOW MOUNTAIN DR
SA
SHADOW LAKE DR
N LUIS REY
AVE
HWY 74
CHICORY ST
JUNIPER ST
PINYON ST JOSHUA TREE ST
HWY 111
CHICORY ST
PALM DESERT DR S
PAROSELLA ST
CATALINA WAY
EL CORTEZ WAY
PEPPERGRASS ST
MOUNTAIN VIEW AVE
LANTANA AVE
EL PASEO
ALLEY
LARREA ST
LANTANA AVE
SHADOW MOUNTAIN DR
EL PASEO
ALESSANDRO DR
SAN MARINO WAY
DE ANZA WAY
PASEO
SAN MARINO CIR
HAHN RD
Copyright nearmap 2015
El Paseo Curb Ramp Modification Project
I
VICINITY MAP
Project No: CST00025
843
844
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Joe Barron, Senior Contracts and Grants Analyst REQUEST: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, AUTHORIZING PARTICIPATION IN THE
COUNTY OF RIVERSIDE’S URBAN COUNTY PROGRAM AND
AUTHORIZING SIGNATORY APPROVAL
RECOMMENDATION:
Adopt a Resolution entitled “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AUTHORIZING PARTICIPATION IN THE COUNTY OF RIVERSIDE’S URBAN COUNTY PROGRAM FOR FISCAL YEARS 2025/26 AND 2026/27.” BACKGROUND/ANALYSIS:
On June 8, 2023, the City Council voted to join the Urban County Program with the County of Riverside (County) as a Metropolitan City for three fiscal years, to recognize staff time savings as well as maximize funding opportunities by leveraging the County’s HUD experience and reporting infrastructure. However, following the County’s submission to HUD, staff discovered that the City had been identified incorrectly and began working with County staff to determine the best way to remedy their error. By approving this item, this allows the City to participate in FY 2025-26 and FY 2026-27.
County and City staff have been collaborating with local and federal Housing and Urban Development (HUD) representatives to resolve the error and facilitate the City's inclusion in the County Program. On March 28, 2024, HUD outlined the necessary steps for progress, which included the requirement for City Council to authorize reducing the term of the Cooperative Agreement from three fiscal years to two fiscal years. The City Council motioned to approve this on June 13, 2024. However, Riverside County has requested additional steps, including the adoption of the requested action outlined herein.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
The City received a CDBG allocation of $365,446 in FY 2024-25. During Fiscal Years 2025-26 and 2026-27, the City will retain its entire entitlement allocation and share the administrative apportionment with the County. This action does not impact the General Fund.
ATTACHMENTS:
1. Metro-City Resolution
2. Joint Metro Agreement
845
846
RESOLUTION NO. 2024-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, AUTHORIZING PARTICIPATION IN THE
COUNTY OF RIVERSIDE’S URBAN COUNTY PROGRAM FOR FISCAL
YEARS 2025/26 AND 2026/27
WHEREAS, the City of Palm Desert has elected to participate as a Metropolitan City in the County of Riverside’s Urban County Program for Federal Fiscal Years 2025/26, and 2026/27; and
WHEREAS, the Joint Recipient Cooperation Agreement for Fiscal Years 2025/26, and 2026/27 will allow the City to carry-out activities which are funded by Community Development Block Grant funds; and
WHEREAS, the Joint Recipient Cooperation Agreement for Fiscal Years 2025/26, and 2026/27 will allow the Metropolitan City to participate in the Urban County Consolidated Planning Programs.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:
SECTION 1. The Joint Recipient Cooperation Agreement between the County of Riverside and the City of Palm Desert was approved on June 13, 2024; and SECTION 2. The City Council hereby authorizes and directs the City Manager or designee to execute the Joint Recipient Cooperation Agreement on behalf of the City of Palm Desert.
ADOPTED ON _________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
847
Resolution No. 2024-
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 ______, 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEROF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on __________________, 2024. ________________________________
ANTHONY J. MEJIA
CITY CLERK
848
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
JOINT RECIPIENT COOPERATION AGREEMENT
1 FOR THE COMMUNITY DEVELOPMENT BLOCK GRANT
2 FOR FISCAL YEARS 2025-26, 2026-27
3 4 This Joint Recipient Cooperation Agreement for the Community Development Block 5 Grant for Fiscal Years 2025-26, and 2026-27, hereinafter referred to as “Agreement” is made and 6 entered into this day of 2024, by and between the COUNTY OF 7 RIVERSIDE, a political subdivision of the State of California, hereinafter referred to as 8 "COUNTY", and CITY OF PALM DESERT an incorporated municipality within the geographical 9 boundaries of the COUNTY, hereinafter referred to as "CITY.” City and County individually 10 referred to herein as “Party” and collectively as the “Parties.” 11 RECITALS
12 WHEREAS, the Housing and Community Development Act of 1974, as amended (42 13 U.S.C.A. § 5301 et seq.) (Public Law 93-383), hereinafter called "ACT", provides that Community 14 Development Block Grant funds hereinafter referred to as "CDBG", may be used for the support 15 of activities that provide decent housing, suitable living environments, and expanded economic 16 opportunities principally for persons of low and moderate-income; and 17 WHEREAS, CDBG regulations require counties to re-qualify as an Urban County under 18 the CDBG program every three years; and
19 WHEREAS, the CITY has attained Metropolitan City status under the “ACT” and has 20 elected to accept its “Entitlement” status and participate in the COUNTY’s Urban County program 21 as a joint recipient;
22 WHEREAS, the Mayor of the Municipality is authorized to execute this Agreement on 23 the Municipality’s behalf; and the Director of Housing and Workforce Solutions, a Department of 24 the County of Riverside is authorized to execute this Agreement on the County’s behalf; and 25 WHEREAS, the execution of this Agreement is necessary to include CITY as a 26 Metropolitan City under COUNTY’s Urban County CDBG program. 27 NOW THEREFORE, in consideration of the mutual covenants herein set forth and the 28 mutual benefits to be derived there from, the parties agree as follows:
849
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 1. GENERAL.
2 (a). This Agreement gives COUNTY authority to undertake, or assist in 3 undertaking, activities for Fiscal Years 2025-26, and 2026-27, that will be funded from the CDBG 4 Entitlement program and from any program income generated from the expenditure of such funds. 5 COUNTY and CITY agree to cooperate, to undertake, or to assist in undertaking, community 6 renewal and lower-income housing assistance activities. 7 (b). COUNTY is qualified as an "Urban County" under the ACT. CITY, by 8 executing this Agreement, hereby gives notice of its election to participate in an Urban County 9 Community Development Block Grant program, hereinafter referred to as "CDBG program" or 10 “Urban County Program.”
11 (c). By executing this Agreement, CITY understands that it may not apply for 12 grants from appropriations under the Small Cities or State CDBG Programs for fiscal years during 13 the period in which it participates in the Urban County’s CDBG program. 14 (d). By executing this Agreement, CITY understands, acknowledges, and agrees 15 that it will receive no formula HOME fund allocation from the COUNTY’S Urban County 16 Program. Pursuant to 24 CFR 92.101, the CITY may elect to form a HOME Investment Partnership 17 Act (HOME) Consortium with the COUNTY in order to be considered for HOME funding through 18 the COUNTY. CITY may apply for HOME funds from the State of California, if permitted by the 19 State.
20 (e). By executing this Agreement, CITY understands, acknowledges, and agrees 21 that it will receive no formula Emergency Solutions Grant (ESG) funds from the COUNTY’S 22 Urban County Program but may apply for ESG funds from the State of California, if permitted by 23 the State.
24 2. TERM.
25 The term of this Agreement shall be for two (2) years commencing on July 1, 2025, 26 and expiring on June 30, 2027, and until the funds granted and program income received during 27 the two-year program period are expended and the funded activities completed. Neither the County 28 850
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 nor the Municipality may terminate, withdraw, or be removed from the program during the two2 year program period. 3 This Agreement will renew automatically for participation in successive three-year Urban 4 County qualification periods, unless the Municipality or the County provide written notice to the 5 other party that it elects not to participate in a new qualification period. The terminating party shall 6 send a copy of the termination to the HUD field office by the date specified in HUD’s Urban 7 County Qualification Notice. The County will notify the Municipality in writing of the 8 Municipality’s right to make this election. A copy of the County’s notification must be sent to the 9 HUD field office by the date specified in the Urban County Qualification Notice. 10 The Parties agree to adopt amendment(s) to this Agreement as may be required by HUD to 11 meet any new Urban County Qualification requirement(s) for subsequent qualification cycles, 12 when applicable. Failure by either Party to adopt any such amendment, and to submit such 13 amendment to HUD, will void the automatic renewal of such qualification period. 14 3. PREPARATION OF FEDERALLY REQUIRED FUNDING
15 APPLICATIONS.
16 The County of Riverside Housing and Workforce Solutions, subject to approval of 17 COUNTY’s Board of Supervisors, shall be responsible for preparing and submitting to the U.S. 18 Department of Housing and Urban Development (HUD), in a timely manner, all reports and 19 statements required by the ACT and the Federal regulations promulgated by HUD to secure 20 entitlement grant funding under the CDBG, HOME, and ESG programs. This duty shall include 21 the preparation and processing of COUNTY Housing, Community, and Economic Development 22 Needs Identification Report, Citizen Participation Plan, the County Five-Year Consolidated Plan, 23 One-Year Action Plan, Consolidated Annual Performance and Evaluation Report (CAPER), and 24 other related programs which satisfy the application requirements of ACT and its regulations. 25 4. COMPLIANCE WITH FEDERAL STATUTES, REGULATIONS AND 26 OTHER APPLICABLE STATUTES, REGULATIONS AND ORDINANCES. 27 28
851
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 (a) COUNTY and CITY will comply with the applicable provisions of the 2 ACT and those Federal regulations promulgated by HUD pursuant thereto, as the same currently 3 exists or may hereafter be amended.
4 (b) The COUNTY and CITY are hereby obligated to take all actions 5 necessary to assure compliance with COUNTY’s certification regarding affirmatively furthering 6 fair housing pursuant to Section 104 (b) of Title I of the Housing and Community Development 7 Act of 1974, as amended, that the grant will be conducted and administered in conformity with 8 Title VI of the Civil Rights Act of 1964, and the implementing regulations at 24 CFR Part 1, and 9 the Fair Housing Act, and the implementing regulations at 24 CFR Part 100, and will comply with 10 the obligation to affirmatively further fair housing. The parties shall comply with Section 109 of 11 Title I of the Housing and Community Development Act of 1974, and the implementing 12 regulations at 24 CFR Part 6, which incorporates Section 504 of the Rehabilitation Act of 1973, 13 and the implementing regulations at 24 CFR Part 8, Title II of the Americans with Disabilities Act 14 of 1974, and the implementing regulations at 28 CFR Part 35, the Age Discrimination Act of 1975, 15 and the implementing regulations at 24 CFR Part 146, and Section 3 of the Housing and Urban 16 Development Act of 1968, and all other applicable laws and regulations. The Parties agree that 17 Urban County funding in no event will be used for Activities in, or in support of , any cooperating 18 unit of general local government that impedes the County’s actions to comply with the County’s 19 fair housing certification and duty to affirmatively further fair housing. 20 (e) CITY agrees that the Urban County Program funding for activities in, or in 21 support of, the CITY are prohibited if CITY does not affirmatively further fair housing within 22 CITY’S jurisdiction or impedes COUNTY actions to comply with its fair housing certification. 23 (f) CITY and COUNTY shall meet the citizen participation requirements of 24 24 CFR 570.301 and provide Urban County Program citizens with all of the following:
25 i. The estimate of the amount of CDBG funds proposed to be used for 26 activities that will benefit persons of low and moderate-income; 27 28
852
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 ii. A plan for minimizing displacement of persons as a result of 2 activities assisted with CDBG funds and to assist persons actually displaced as a result of such 3 activities;
4 iii. A plan that provides for and encourages citizen participation, with 5 particular emphasis on participation by persons of low and moderate-incomes, residents of slum 6 and blighted areas, and of areas in which funds are proposed to be used, and provides for 7 participation of residents in low and moderate-income neighborhoods; 8 iv. Reasonable and timely access to local meetings, information, and 9 records relating to the grantee’s proposed use of funds, as required by the regulations of the 10 Secretary, and relating to the actual use of funds under the ACT; 11 v. Provide for public meetings to obtain citizen views and to respond 12 to proposals and questions at all stages of the community development program, including at least 13 the development of needs, the review of proposed activities and review of program performance. 14 Meeting shall be held after adequate notice, at times and locations convenient to potential or actual 15 beneficiaries, and with accommodation for the disabled. 16 (g). CITY shall develop a community development plan, for the period of this 17 Agreement, which identifies community development and housing needs and specifies both short 18 and long-term community development objectives.
19 (h). CITY certifies, to the best of its knowledge and belief, that:
20 i. No Federal appropriated funds have been paid or will be paid, by or 21 on behalf of the CITY, to any person influencing or attempting to influence an officer or employee 22 of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a 23 Member of Congress, in connection with the awarding of any Federal contract, the making of any 24 Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and 25 the extension, continuation, renewal, amendment or modification of any Federal contract, grant, 26 loan or cooperative agreement.
27 ii. If any funds other than Federally-appropriated funds have been paid 28 or will be paid to any person for influencing or attempting to influence an officer or employee of 853
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 any agency, a Member of Congress, an officer or employee of Congress, or an employee of a 2 Member of Congress, in connection with this Federal contract, grant, loan, or cooperative 3 agreement, the undersigned shall complete and submit standard Form-LLL, "Disclosure Form to 4 Report Lobbying", in accordance with its instructions. 5 iii. The CITY shall require that the language provided in Sections 6 4(e)(i) and 4(e)(ii) of this Agreement be included in the award documents for all sub-awards at all 7 tiers (including subcontracts, sub- grants and contracts under grants, loans, and cooperative 8 agreements) and that all sub-recipients shall certify and disclose accordingly. This certification is 9 a material representation of fact upon which reliance was placed when this transaction was made 10 or entered into.
11 (iv). In accordance with Section 519 of Public Law 101-144, (the 1990 12 HUD Appropriations Act), the CITY certifies that it has adopted and is enforcing a policy 13 prohibiting the use of excessive force by law enforcement agencies within its jurisdiction against 14 any individuals engaged in non-violent civil rights demonstrations, and that it has adopted and is 15 enforcing applicable State and local laws against physically barring entrance to, or exit from, a 16 facility or location which is the subject of such non-violent civil rights demonstrations within its 17 jurisdiction.
18 5. COMPLIANCE WITH POLICY AND PROGRAM OBJECTIVES.
19 The COUNTY’s Board of Supervisors have adopted policies and procedures to 20 ensure efficient and effective administration of the CDBG program. COUNTY will provide these 21 policies and procedures to CITY within a reasonable time after this Agreement’s commencement 22 date. COUNTY and City agree to comply with these said policies and program objectives and to 23 take no actions to obstruct implementation of the approved 2024-2029 Five Year Consolidated 24 Plan and the subsequent Five Year Consolidated Plan. 25 6. COMPLIANCE WITH FEDERAL STATUTES, REGULATIONS AND OTHER 26 APPLICABLE STATUTES, REGULATIONS AND ORDINANCE.
27 28
854
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 a. COUNTY and CITY agree to cooperate to undertake, or assist in undertaking, essential 2 community renewal and lower-income housing assistance activities, as approved and 3 authorized between the parties in the CDBG Agreements, including the Consolidated Plan. 4 b. COUNTY and CITY agree to take all actions necessary to assure compliance with the 5 urban county's certification under section 104(b) of Title I of the Housing and Community 6 Development Act of 1974, that the grant will be conducted and administered in conformity 7 with Title VI of the Civil Rights Act of 1964, and the implementing regulations at 24 CFR 8 part 1, and the Fair Housing Act, and the implementing regulations at 24 CFR part 100, 9 and will affirmatively further fair housing. See 24 CFR § 91.225(a) and Affirmatively 10 Furthering Fair Housing Definitions and Certifications (86 FR 30779, June 10, 2021), to 11 be codified at 24 CFR 5.151 and 5.152; and available at 12 https://www.federalregister.gov/documents/2021/06/10/2021-12114/restoring13 affirmatively-furthering-fair-housing-definitions-and-certifications. 14 c. COUNTY and CITY agree to comply with section 109 of Title I of the Housing and 15 Community Development Act of 1974, and the implementing regulations at 24 CFR part 16 6, which incorporates Section 504 of the Rehabilitation Act of 1973, and the implementing 17 regulations at 24 CFR part 8, Title II of the Americans with Disabilities Act, and the 18 implementing regulations at 28 CFR part 35, the Age Discrimination Act of 1975, and the 19 14 implementing regulation at 24 CFR part 146, and Section 3 of the Housing and Urban 20 Development Act of 1968.
21 d. COUNTY AND CITY agree to comply with other applicable laws. 22 e. COUNTY AND CITY agree that CDBG urban county funding is prohibited for activities 23 in, or in support of, any cooperating unit of general local government that does not 24 affirmatively further fair housing within its own jurisdiction or that impedes the county's 25 actions to comply with the county's fair housing certification. 26 f. PROHIBITION OF CDBG FUND TRANSFERS
27 The CITY may not sell, trade, or otherwise transfer all or any portion of the CDBG funds 28 to another such cooperating city, metropolitan city, urban county, or Indian tribe, that 855
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 directly or indirectly receives CDBG funds in exchange for any other funds, credits, or 2 non-Federal considerations, CITY must use the CDBG funds for activities eligible under 3 Title I of the ACT.
4 7. OTHER AGREEMENTS.
5 Pursuant to Federal regulations at 24 CFR 570.501(b), CITY is subject to the same 6 requirements applicable to sub-recipients, including the requirement of a written agreement set 7 forth in Federal regulations at 24 CFR 570.503. For each fiscal year during the term of this 8 Agreement, COUNTY and CITY shall enter into an additional agreement, commonly known as a 9 Metropolitan City Supplemental Agreement, that will have a term coinciding with a CDBG 10 Program Year and enumerate the project(s) CITY will implement with its entitlement funds. Said 11 Supplemental Agreement will set forth the time schedule for completion of said project(s) and any 12 funding sources, in addition to entitlement funds, that will be used in completing the project(s). If 13 substantial compliance with the completion schedule, due to unforeseen or uncontrollable 14 circumstances, cannot be met by CITY, the schedule for the project(s) may be extended by 15 COUNTY. If COUNY determines that substantial progress toward drawdown of funds is not 16 made during the term of the Supplemental Agreement, the entitlement funds associated with the 17 project(s) may be reprogrammed by COUNTY, to other activities as determined by COUNTY, 18 after COUNTY provides appropriate written notice to CITY. COUNTY's decision not to extend 19 the completion schedule associated with the project(s), or to reprogram the entitlement funds 20 associated with the project(s), will not excuse CITY from complying with terms of this Agreement. 21 8. DETERMINATION OF PROJECTS TO BE FUNDED AND
22 DISTRIBUTION OF ENTITLEMENT FUNDS.
23 CITY agrees to submit to COUNTY in writing, no later than the date specified by 24 COUNTY prior to each program year, the activities that the CITY desires to implement with its 25 entitlement funds, said designation to comply with statutory and regulatory provisions governing 26 citizen's participation. Said designation is to be reviewed by the COUNTY's Housing and 27 Workforce Solutions to determine that the projects are eligible under Federal regulations for 28 funding and inclusion in the One Year Action Plan of the County’s Five-Year Consolidated Plan 856
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 and consistent with both Federal and COUNTY policy governing use of Community Development 2 Block Grant (CDBG) funds.
3 In the event that CITY fails to submit to COUNTY the identified activities that the 4 CITY desires to implement with its entitlement funds by the date specified prior to each program 5 year, the COUNTY may determine the activities to be funded, without consent of the CITY, 6 consistent with both Federal and COUNTY policy governing use of Community Development 7 Block Grant (CDBG) funds.
8 Consistent with Sections 3, 4, 5, 6, and 7 of this Agreement, COUNTY's Board of 9 Supervisors will make the final determination of the distribution and disposition of all CDBG 10 funds received by COUNTY pursuant to the Act.
11 9. COMMUNITY DEVELOPMENT BLOCK GRANT MANUAL.
12 CITY warrants that those officers, employees, and agents, retained by it and 13 responsible for implementing projects funded with CDBG have received, reviewed, and will 14 follow the Community Development Block Grant Manual that has been prepared and amended by 15 COUNTY, which Manual is incorporated herein and made a part hereof by this reference. 16 10. REAL PROPERTY ACQUIRED OR PUBLIC FACILITY
17 CONSTRUCTED WITH CDBG FUNDS.
18 When CDBG funds are used, in whole or in part, by CITY to acquire real property 19 or to construct a public facility, CITY shall comply with the National Environmental Policy Act 20 of 1969 (42 U.S.C. § 4321, et seq.), the California Environmental Quality Act (Cal. Pub. Resources 21 Code § 21000, et seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies 22 Act of 1970 (42 U.S.C. § 4630, et seq.), and California Government Code Sections 7260 et seq., 23 as those laws may be amended from time-to-time and any Federal or state regulations issued to 24 implement the aforementioned laws.
25 In addition, the following is to occur:
26 (a) Title to the real property shall vest in CITY;
27 (b) The real property title will be held by or the constructed facility will be 28 maintained by the CITY for the approved use until five years after the date that the project is 857
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 reported as “Completed” within the annual Consolidated Annual Performance and Evaluation 2 Report.
3 (c) While held by CITY, the real property or the constructed facility is to be 4 used exclusively for the purpose for which acquisition or construction was originally approved by 5 COUNTY;
6 (d) CITY shall provide timely written notice to COUNTY of any action which 7 would result in a modification or change in the use of the real property purchased or improved, in 8 whole or in part, with CDBG or HOME funds from that planned at the time of acquisition or 9 improvement, including disposition.
10 (e) CITY shall provide timely written notice to citizens and opportunity to 11 comment on any proposed modification or change;
12 (f) Written approval from COUNTY must be secured if the property or the 13 facility is to be put to an alternate use that is or is not consistent with Federal regulations governing 14 CDBG funds;
15 (g) Should CITY desire during the five (5) year period to use the real property 16 or the constructed facility for a purpose not consistent with applicable Federal regulations 17 governing CDBG funds or to sell the real property or facility, then:
18 (i) If CITY desires to retain title, it will have to reimburse either COUNTY 19 or the Federal government an amount that represents the percentage of current fair market value 20 that is identical to the percentage that CDBG funds initially comprised to when the property was 21 acquired or the facility was constructed;
22 (ii) If CITY sells the property or facility, or is required to sell the property 23 or facility, CITY is to reimburse the COUNTY an amount that represents the percentage of 24 proceeds realized by the sale that is identical to the percentage that CDBG funds comprised of the 25 monies paid to initially acquire the property or construct the facility. This percentage amount will 26 be calculated after deducting all actual and reasonable cost of sale from the sale proceeds. 27 11. DISPOSITION OF INCOME GENERATED BY THE EXPENDITURE 28 OF CDBG FUNDS.
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Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 CITY shall inform COUNTY in writing of any income generated by the 2 expenditure of CDBG funds received by CITY from COUNTY. CITY may retain program income 3 so generated and may only be used for eligible activities, as determined by the COUNTY, in 4 accordance with all CDBG requirements, including all requirements for citizen participation. 5 The COUNTY is required by HUD to monitor and report the receipt and use of all 6 program income. CITY is required to track, monitor, and report any and all program income as 7 requested by COUNTY.
8 12. TERMINATION.
9 Except as provided for in Section 2, CITY and COUNTY cannot terminate or 10 withdraw from this Agreement while it remains in effect. 11 13. NOTICES.
12 All correspondence and notices required or contemplated by this Agreement shall 13 be delivered to the respective parties at the addresses set forth below and are deemed submitted 14 two days after their deposit in the United States mail, postage prepaid:
15 16 COUNTY OF RIVERSIDE CITY OF
17 Heidi Marshall, Director Todd Hileman, City Manager
18 County of Riverside HWS City of Palm Desert
19 P.O. Box 1528 73510 Fred Waring Drive
20 Riverside, CA 92502 Palm Desert, CA 92260
21 22
23 24
25 26 14. AGREEMENT ADMINISTRATION.
27 28
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Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 The City Manager in the case of the City of Murrieta, and the Director of Housing 2 and Workforce Solutions, in the case of the County of Riverside, or their designee, shall administer 3 the terms and conditions of this Agreement for their respective city or county. 4 15. COOPERATION; FURTHER ACT.
5 The PARTIES shall cooperate fully with one another, and shall take any additional 6 acts or sign any additional documents as may be necessary, appropriate or convenient to attain the 7 purpose of the Agreement.
8 16. NO THIRD-PARTY BENEFICIARIES.
9 This Agreement is made and entered into for the sole protection and benefit of the 10 PARTIES hereto and shall not create any rights in any third parties. No other person or entity shall 11 have any right or action based upon the provisions of the Agreement. 12 17. SECTION HEADINGS.
13 The Section headings herein are for the convenience of the PARTIES only and shall 14 not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the 15 provisions or language of this Agreement.
16 18. FORMER AGREEMENTS UTILIZING COMMUNITY
17 DEVELOPMENT BLOCK GRANT FUNDS BETWEEN COUNTY AND CITY. 18 All agreements between CITY and COUNTY regarding the use of CDBG funds for 19 fiscal years 1975-76 through fiscal years 2023-2024, and any Supplemental Agreements there 20 under, shall remain in full force and effect. If the language of this Agreement is in conflict or 21 inconsistent with the terms of any prior said agreements between CITY and COUNTY, the 22 language of this Agreement will be controlling.
23 19. INDEMNIFICATION
24 CITY agrees to indemnify, defend, and hold harmless COUNTY and its authorized 25 officers, employees, agents, and volunteers from any and all claims, actions, losses, damages, 26 and/or liability arising from CITY acts, errors or omissions and for any costs or expenses incurred 27 by COUNTY on account of any claim therefore, except where such indemnifications is prohibited 28 by law. CITY shall promptly notify COUNTY in writing of the occurrence of any such claims, 860
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 actions, losses, damages, and/or liability.
2 CITY shall indemnify and hold harmless COUNTY against any liability, claims, 3 losses, demands, and actions incurred by COUNTY as a result of the determination by HUD or its 4 successor that activities undertaken by CITY under the program(s) fail to comply with any laws, 5 regulations, or policies applicable thereto or that any funds billed by and disbursed to CITY under 6 this Agreement were improperly expended.
7 20. COMPLIANCE WITH LAWS AND REGULATIONS.
8 By executing this Agreement, the Parties hereby certify that they will adhere to and 9 comply with all Federal, state and local laws, regulations and ordinances. 10 21. ENTIRE AGREEMENT.
11 It is expressly agreed that this Agreement embodies the entire agreement of the 12 Parties in relation to the subject matter hereof, and that no other agreement or understanding, 13 verbal or otherwise, relative to this subject matter, exists between the Parties at the time of 14 execution.
15 22. SEVERABILITY.
16 Each paragraph and provision of this Agreement is severable from each other 17 provision and in the event any provision in this Agreement is held by a court of competent 18 jurisdiction to be invalid, void, or unenforceable, the remaining provision will never the less 19 continue in full force without being impaired or invalidated in any way. 20 23. ASSIGNMENT.
21 CITY shall not make any sale, assignment, conveyance or lease of any trust or 22 power, or transfer in any other form with respect to this Agreement, or delegate or assign any 23 interest in this Agreement without prior written approval of the County. 24 24. INTERPRETATION AND GOVERNING LAW.
25 This Agreement and any dispute arising hereunder shall be governed by and 26 interpreted in accordance with the laws of the State of California. This Agreement shall be 27 construed as a whole according to its fair language and common meaning to achieve the objectives 28 and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are 861
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all 2 Parties having been represented by counsel in the negotiation and preparation hereof. 3 25. WAIVER.
4 Failure by a Party to insist upon the strict performance of any of the provisions of 5 this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default 6 of the other Party, shall not constitute a waiver of such Party’s right to insist and demand strict 7 compliance by the other Party with the terms of this Agreement thereafter. 8 26. JURISDICTION AND VENUE.
9 Any action at law or in equity arising under this Agreement or brought by a Party 10 hereto for the purpose of enforcing, construing or determining the validity of any provision of this 11 Agreement shall be filed in the Superior Court of California, County of Riverside, State of 12 California, and the Parties hereto waive all provisions of law providing for the filing, removal or 13 change of venue to any other court or jurisdiction.
14 27. AMENDMENTS
15 No change, amendment, or modification to the Agreement shall be valid or binding 16 upon CITY or COUNTY unless such change, amendment, or modification is in writing and duly 17 executed. CITY and COUNTY agree to adopt any necessary amendments to this Agreement to 18 incorporate changes required by HUD as set forth in the Urban County Qualification Notice. 19 Amendments must be submitted to HUD as provided in the Urban County Qualification Notice 20 and failure to do so will void the automatic renewal for such qualification period. 21 28. SPECIAL PROVISIONS FOR METROPOLITAIN CITY/URBAN
22 COUNTY JOINT RECIPIENT:
23 (a) The CITY is part of the Urban County Program for purposes of planning 24 and implementation for the entire period of the Urban County Qualification for program years 25 2024-25, 2025-26, and 2026-27 under the CDBG program. 26 (b) HUD will consider the CITY as a unit of general local government that is 27 part of the COUNTY’s Urban County program.
28 (c) HUD shall determine the annual amount of CDBG allocation to which the 862
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 CITY is entitled, and the COUNTY will be the grant recipient. 2 (d) The CITY’s allocation will be that portion of the total annual allocation as 3 specified by written notice from HUD, less thirteen (13%) to be retained by the COUNTY for 4 administration of the Urban County CDBG program.
5 (e) In the event that the COUNTY receives supplemental CDBG funding from 6 HUD, pursuant to a national emergency, disaster, or economic recovery, the CITY will receive 7 its allocation of said supplemental CDBG funding if HUD has determined the CITY’s portion of 8 the COUNTY’s allocation. The CITY’s supplemental CDBG allocation will be subject to the 9 retention of administrative funding found in Paragraph (d) of this Section and subject to applicable 10 provisions of Sections 3, 4, 5, 6, and 7 of this Agreement. 11 (f) All other terms and conditions applicable to an Urban County participating 12 city shall apply to the CITY.
13 29. PROHIBITION OF CDBG FUND TRANSFER
14 The CITY may not sell, trade, or otherwise transfer all or any portion of the CDBG 15 funds to another such cooperating city, metropolitan city, urban county, or Indian tribe, that 16 directly receives CDBG funds in exchange for any other funds, credits, or non-Federal 17 considerations. CITY must use the CDBG funds for activities eligible under Title I of the ACT. 18 30. AUTHORITY TO EXECUTE.
19 The persons executing this Agreement or exhibits attached hereto on behalf of the 20 Parties to this Agreement hereby warrant and represent that they have the authority to execute 21 this Agreement and warrant and represent that they have the authority to bind the respective 22 Parties to this Agreement to the performance of its obligations hereunder. 23 31. INCORPORATION OF RECITALS
24 The Parties hereby affirm the facts set forth in the recitals above. Said recitals are 25 incorporated herein and made an operative part of this Agreement. 26 32. COUNTERPARTS
27 This Agreement may be executed in multiple counterparts, each of which shall be 28 deemed an original, but all of which, together, shall constitute one and the same instrument. 863
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 33. ELECTRONIC SIGNATURE
2 Each party of this Amendment to Agreement agrees to the use of electronic signatures, such as 3 digital signatures that meet the requirements of the California Uniform Electronic Transactions 4 Act ((“CUETA”) Cal. Civ. Code §§ 1633.1 to 1633.17), for executing this Agreement. The parties 5 further agree that the electronic signatures of the parties included in this Agreement are intended 6 to authenticate this writing and to have the same force and effect as manual signatures. Electronic 7 signature means an electronic sound, symbol, or process attached to or logically associated with 8 an electronic record and executed or adopted by a person with the intent to sign the electronic 9 record pursuant to the CUETA as amended from time to time. The CUETA authorizes use of an 10 electronic signature for transactions and contracts among parties in California, including a 11 government agency. Digital signature means an electronic identifier, created by computer, 12 intended by the party using it to have the same force and effect as the use of a manual signature, 13 and shall be reasonably relied upon by the parties. For purposes of this section, a digital signature 14 is a type of "electronic signature" as defined in subdivision (i) of Section 1633.2 of the Civil Code. 15 In the event that any signature is delivered by facsimile or electronic transmission, such 16 signature shall create a valid and binding obligation of the party executing (or on whose 17 behalf such signature is executed) with the same force and effect as though such facsimile or electronic signature page were an original thereof.
18 19 The Parties may sign in writing or by electronic signature. An electronic signature, facsimile copy, or computer image of a signature will be treated, and will have the same 20 effect as, an original signature, and will have the same effect, as an original signed copy of this document. This Acknowledgement may be amended or modified only by a written 21 instrument signed by authorized representatives of both Parties. 22 23 34. COUNTERPARTS
24 This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 25 26
27 [SIGNATURE ON FOLLOWING PAGE]
28 864
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 2 IN WITNESS WHEREOF, the COUNTY and CITY have executed this Agreement on 3 the date shown below.
4 5
Date:
6 7 COUNTY OF RIVERSIDE, CITY OF PALM DESERT,
8 a political subdivision of the a Charter City
State of California
9 10
11 BY: FORM COPY - DO NOT SIGN BY: FORM COPY - DO NOT SIGN Heidi Marshall, Director Mayor
12 Housing and Workforce Solutions
13 14
15 APPROVED AS TO FORM: ATTEST:
Minh C. Tran, County Counsel
16 17
BY: FORM COPY - DO NOT SIGN
18 By: City Clerk
19 Paula S. Salcido, Deputy County Counsel
20 21 APPROVED AS TO FORM:
22 23 BY:
City Attorney
24 25
26 27
28 865
Joint Recipient Cooperation Agreement For CDBG Funds 2025-2026
1 COUNTY COUNSEL CERTIFICATION
2 3 The Office of County Counsel of the County of Riverside hereby certifies that the terms 4 and provisions of this Agreement are fully authorized under state and local law and that the 5 Agreement provides full legal authority for the COUNTY to undertake, or assist in undertaking, 6 essential community development and housing assistance activities specifically urban renewal and 7 publicly assisted housing.
Minh C. Tran
8 County Counsel
9 10 By:
Deputy, Paula S. Salcido
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
866
PALM DESERT HOUSING AUTHORITY
STAFF REPORT
MEETING DATE: July 11, 2024
PREPARED BY: Celina Cabrera, Management Analyst
REQUEST: REJECT ALL PROPOSALS SUBMITTED FOR COURTESY PATROL
SERVICES AT THE HOUSING AUTHORITY PROPERTIES
RECOMMENDATION:
1. Reject all proposals submitted for Courtesy Patrol Services at Palm Desert Housing Authority owned properties.
2. Authorize staff’s request to solicit proposal for surveillance camera system installation and monitoring services.
BACKGROUND/ANALYSIS:
The Palm Desert Housing Authority currently has a Courtesy Patrol Services Agreement with Southwest Protective Service, Inc for an annual cost of $135,500. The agreement is set to terminate on August 31, 2024.
Staff released a request for proposal for Courtesy Patrol Services on March 12, 2024 with a mandatory pre-proposal meeting held on March 21, 2024, on the City of Palm Desert’s online bid management provider, OpenGov. Responses were due on April 12, 2024 and three proposals were received.
Proposal Annual Amount
General Security Service, Inc. $839,192.80
Securitas Security Services USA, Inc $396,789.00
Alltech Industries, Inc. $147,101.76
Following an initial review of proposals by staff, two of the proposals were three times the current annual contract amount making them unfeasible, and the third proposal did not demonstrate the ability to fulfill the needs of the Housing Authority properties. Southwest Protective Service, the current courtesy patrol provider, did not submit a proposal and has not responded to staff inquiries regarding renewing their existing contract. Consequently, staff is recommending all proposals be rejected.
The Housing Authority’s property management company, Falkenberg Gilliam & Associates (“FGA”) have communicated that they have experienced successes with the transition from onsite courtesy patrol services to surveillance cameras with live-offsite monitoring at other properties they manage in San Diego and Los Angeles Counties. Staff has briefly explored the subject and are requesting approval to continue pursuing the options for a surveillance camera system and monitoring services at the Housing Authority properties, including solicitation of proposals.
867
City of Palm Desert
(Reject proposals for Courtesy Patrol Services)
Legal Review:
This report has been reviewed by the City Attorney’s office.
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:
There is no direct fiscal impact related to this action. 868
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. 869
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. 870
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
871
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. 872
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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. 873
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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 875
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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. 876
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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 877
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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
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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 879
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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 882
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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 883
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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. 884
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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 886
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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”
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. 889
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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. 890
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Exhibit “A”
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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). 891
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Exhibit “A”
Revised 07-2023
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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”
Revised 07-2023
BBK 72500.00001\32374915.1
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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