Agenda packet, regular meeting — Palm Desert City Council, August 22, 2024 (part 2 of 5)

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Shawn Muir, Community Services Manager
SUBJECT: ACCEPT CONTRACT NO. C43210 FOR CONSTRUCTION OF THE CIVIC

CENTER PARK FITNESS, SHADE AND FURNISHINGS

IMPROVEMENTS AS COMPLETE
RECOMMENDATION:

1. Accept Contract No. C43210 with PS Commercial Play, Inc., for the Civic Center Park Fitness, Shade and Furnishings Improvements Project as complete.

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

BACKGROUND/ANALYSIS:

On June 9, 2022, the City Council awarded Contract No. C43210 to PS Commercial Play, Inc., for the Civic Center Park Fitness, Shade, and Furnishings Improvements Project. The contract amount was $207,954.25, with an additional contingency of $20,795, bringing the total project cost to $228,749.25.

Construction commenced on August 29, 2022. During the project, PS Commercial Play, Inc., requested a change order to cover the $3,200 cost of Performance and Payment Bonds required by the contract. Staff approved Change Order No. 1 for this amount. During the final installation phase, City staff discovered that the irrigation east and west of the fitness equipment area was inadequate and additional pour-in-place flooring was required. PS Commercial Play, Inc., provided a quote of $17,252 for these changes. Consequently, on February 22, 2024, staff issued Amendment No. 1, which allocated $20,795 in additional funds and extended the contract through June 30, 2024. With this amendment, the revised total for the contract, including one Change Order and one Amendment, totaled $228,406.25.

On July 2, 2024, staff inspected the completed work and confirmed it met all contract requirements.

Legal Review:

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

FINANCIAL IMPACT:

The unused contingency funds will be returned to Capital Projects Fund Balance for reallocation. 199
City of Palm Desert
Accept Contract for Construction of Civic Center Park

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ATTACHMENTS:

1. Notice of Completion

2. Vicinity Map
PS Commercial Play, Inc. Total Contract Contingency
6/9/22 Approval $207,954.25 $20,795
C/O 1 $3,200 ($3,200)
Amendment 1 $17,252 ($17,252)
Completed Contract $228,406.25 $343
200
To be recorded with the Riverside County Recorder
on or within 15 days after completion and acceptance by the City Council. NO RECORDING FEE PER
SECTION 6103 OF THE GOVERNMENT CODE.

APN 622-250-014 NOTICE OF COMPLETION
(Cal. Civ. Code § 9200 et seq. – Public Works)
NOTICE IS HEREBY GIVEN:

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

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

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

4. That on the 2
nd day of July 2024 work of improvement described as the Civic Center Park Fitness, Shade and Furnishing Improvements Project, Contract No. C43210, on the real property herein described was completed.

5. That the name of the original contractor, if any, for said work of improvement was: PS Commercial Play, Inc.

6. That the real property herein referred to is situated in the City of Palm Desert, County of Riverside, State of California, and is described as Civic Center Park located off San Pablo Avenue in Palm Desert, California, 92260.

CITY OF PALM DESERT

A MUNICIPAL CORPORATION
Date: By:

Karina Quintanilla, Mayor

When recorded, return to:

Office of the City Clerk
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
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Copyright nearmap 2015

CIVIC CENTER PARK FITNESS
PROJECT NO. 718-22
Contract No. C43210 I

CIVIC CENTER PARK FITNESS
APN: 622-250-014
VICINITY MAP 203
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Níamh M. Ortega, Assistant City Clerk
SUBJECT: RESOLUTION SETTING THE CITY COUNCIL REGULAR MEETING SCHEDULE FOR THE CALENDAR YEAR 2025
RECOMMENDATION:

Adopt a resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

DESERT, CALIFORNIA, SETTING THE CITY COUNCIL REGULAR MEETING SCHEDULE FOR THE CALENDAR YEAR 2025.”
BACKGROUND/ANALYSIS:

Palm Desert Municipal Code Section 2.36.020 authorizes the City Council to adopt a resolution to establish the dates and times for its regular meetings. Staff is seeking City Council confirmation of its meeting schedule so that staff may proceed with developing a schedule of public hearings and to provide ample notice to the public of the meeting schedule.

Proposed Cancelled Meetings
Traditionally, newly elected City Councilmembers attend the League of California Cities’ Mayor and Council Member Academy held each January. In 2025, the Academy will be held from January 22-24 in Sacramento and from January 29-31 in Garden Grove. To accommodate the new members, staff recommends canceling the January 23, 2025, City Council meeting, allowing them to attend either Academy session as their schedule permits.

Additionally, the City Council typically cancels the second meeting in July and first meeting in August for a brief recess. City staff also recommends canceling the meetings that coincide with the Thanksgiving and winter holidays.

Legal Review:

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

FINANCIAL IMPACT:

There is no direct financial impact associated with this action.

ATTACHMENTS:

1. Resolution
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206
RESOLUTION NO. 2024-_____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

DESERT, CALIFORNIA, SETTING THE CITY COUNCIL REGULAR
MEETING SCHEDULE FOR THE CALENDAR YEAR 2025
WHEREAS, pursuant to Palm Desert Municipal Code Section 2.36.020, the City Council regular meetings are generally held on the second and fourth Thursday of each month, except as otherwise set by City Council resolution; and WHEREAS, the City Council desires to confirm its meeting schedule for 2025 as the second and fourth Thursday of each month unless otherwise rescheduled or canceled.

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

SECTION 1. That the foregoing Recitals are true and correct and are incorporated herein by this reference.

SECTION 2. Regular meetings of the City Council shall be held in the Council Chamber, located at 73-510 Fred Waring Drive, Palm Desert, California, on the second and fourth Thursday of each month at the hour of 4:00 p.m. When the regular meeting falls on a legal holiday, the meeting shall be held on the following day unless otherwise determined by the City Council at a regular meeting of the City Council.

SECTION 3. Regular meetings of the City Council acting as the governing boards of the successor agency, housing authority, financing authority, and/or library board of trustees, shall be held in the Council Chamber, located at 73-510 Fred Waring Drive, Palm Desert, California, concurrently with the regular City Council meeting.

SECTION 4. Closed sessions of the City Council and/or the governing boards as provided in this Resolution may be conducted prior to the 4:00 p.m. business portion of regular meetings and as noticed from time to time on the agenda for such meetings. The time scheduled will depend upon the number of items to be considered and the complexity of the issues to be discussed. If necessary, closed sessions not completed prior to the business portion of the meeting may be considered at the conclusion of the business portion of the meeting or as otherwise determined by the City Council.

SECTION 5. The City Council has canceled and/or rescheduled certain meetings as outlined in Exhibit A.
207
RESOLUTION NO. 2024-_____
2 ADOPTED ON ______, 2024.

KARINA QUINTANILLA
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _____, 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ________________, 2024.

ANTHONY J. MEJIA

CITY CLERK
208
RESOLUTION NO. 2024-_____
3 EXHIBIT “A”
City of Palm Desert
2025 City Council Meetings Dates
The City Council meetings are typically held on the second and fourth Thursday of each month at 4:00 p.m. in the Council Chamber, located at 73-510 Fred Waring Drive, Palm Desert, California.

This schedule is subject to change.

CURRENT MEETING DATES PROPOSED MEETING DATES
Thursday, January 9, 2025
Thursday, January 23, 2025 Cancel
Thursday, February 13, 2025
Thursday, February 27, 2025
Thursday, March 13, 2025
Thursday, March 27, 2025
Thursday, April 10, 2025
Thursday, April 24, 2025
Thursday, May 8, 2025
Thursday, May 22, 2025
Thursday, June 12, 2025
Thursday, June 26, 2025
Thursday, July 10, 2025
Thursday, July 24, 2025 Cancel (Summer Recess)
Thursday, August 7, 2025 Cancel (Summer Recess)
Thursday, August 21, 2025
Thursday, September 11, 2025
Thursday, September 25, 2025
Thursday, October 9, 2025
Thursday, October 23, 2025
Thursday, November 13, 2025
Thursday, November 27, 2025 Cancel
Thursday, December 11, 2025
Thursday, December 25, 2025 Cancel
Thursday, January 8, 2026
Approved by the City Council on __/__/2024
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Shannon Vonnegut, Assistant Director of Library Services SUBJECT: RESOLUTION APPROVING THE LIBRARY SERVICES’ INTERNET USE

AND PROHIBITION ON YOUTH BULLYING POLICIES
RECOMMENDATION:

Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, APPROVING LIBRARY SERVICES’ INTERNET USE AND PROHIBITION ON YOUTH BULLYING POLICIES.”
BACKGROUND/ANALYSIS:

The City has assumed local library services from the County of Riverside and its library operator LSS, with operations beginning on July 1, 2024. In preparation for this, the City Council needs to adopt the policies of the library to commence operations.

In order to ensure the effective delivery of service and to provide full access to library resources, libraries develop policies to address customer use and library expectations. The library serves all customers equally and is open to everyone. The goal is to create a secure, relaxing, and pleasant place to learn and explore.

The development of the policies is intended to govern internet use and to maintain a safe and healthy environment.

This action will adopt the following governing policies for the Palm Desert Library:
 LIBR 014 – Internet Use and Safety Policy: Outlines the public usage of the internet and internet filtering.
 LIBR 015 – Prohibition on Youth Bullying: Prohibits bullying, harassment, and intimidation of youth.

Legal Review:

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

FINANCIAL IMPACT:

There is no financial impact associated with this action.

ATTACHMENTS:

1. Library Policies Resolution
a. Exhibit A: Draft Library Policies
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RESOLUTION NO. 2024-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, APPROVING LIBRARY SERVICES’ INTERNET

USE AND PROHIBITION ON YOUTH BULLYING POLICIES
WHEREAS, the City Council recognizes its responsibility and obligation to foster efficient and safe library services and further acknowledges the importance of the wellbeing and comfort of City of Palm Desert (City) library customers; and WHEREAS, the City Council desires to provide for the efficient, economical, effective, and safe control over the creation, organization, maintenance, use, and disposition of the City’s library; and
WHEREAS, the City’s library policies offer comprehensive instructions for the library’s computer usage and customer behavior; and
WHEREAS, the declared purpose of the Library Policies is to establish authority, assign responsibility for comprehensive operations of the library, and create the administrative framework to achieve the library’s purposes; and.

WHEREAS, library operation demonstrates to legal and regulatory authorities that the City is making every reasonable effort to operate an effective and efficient library in a responsible manner, in accordance with federal, state, and local regulations, applicable guidelines, and good business practices.

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

SECTION 1. That the foregoing Recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The Library Policies set forth in Exhibit “A” are hereby adopted in their entirety.

SECTION 3. The City Manager, through the Library Services Director, is directed to implement, uphold, and enforce the terms of these policies.

SECTION 4. The City Clerk shall certify the adoption of this resolution.

ADOPTED ON ________________, 2024.

KARINA QUINTANILLA
MAYOR
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Resolution No. 2024-____ Page 2
ATTEST:

ANTHONY J. MEJIA

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.

ANTHONY J. MEJIA

CITY CLERK
214

CITY OF PALM DESERT
Subject Internet Use Policy
Policy No. LIBR-014
Date Issued: August 22, 2024
Amended: N/A
Approved by Resolution No. {2024-XX}
Authored by Library Services
I. PURPOSE
A. This policy outlines internet use and safety online.

II. INTERNET USE IN THE LIBRARY
A. The Palm Desert Library endeavors to provide collections, resources, and services that meet the cultural, informational, recreational, and educational needs of the diverse communities it serves.

B. Resources available on the Internet supplement and complement the collection and resources available at Library facilities. The Internet may contain material of a controversial nature; however, the Library does not monitor Internet usage. Users should note that not all Internet sources provide accurate, complete, or current information.

C. All Library computers with Internet access and the Library’s wireless network use a technology protection measure that protects all users including minors against access to visual material considered inappropriate for or harmful to minors.

D. Consistent with Federal Communications Commission (FCC) Order 03-188, libraries complying with the Children’s Internet Protection Act (CIPA) are required to implement a procedure for unblocking the filter upon request of customers who are 18 years of age and older. Such procedures shall be the responsibility of the Library Director or designated representatives. Customers who are 18 years of age and over may, at their request, have the technology protection measure disabled during their use to enable access for bona fide research or other lawful purposes.

E. Free wireless Internet access will be provided by the Palm Desert Library to all customers in order to access the web on their personal electronic devices and will not require the maintenance of a Library account to access such service.

All wireless Internet access provided by the Palm Desert Library will be filtered to prevent access to materials deemed by law to be harmful to minors without exception. All Library policies concerning legal, acceptable, and safe use of computers and the Internet apply to use of the public wireless access. 215
Administrative Procedures Manual
LIBR-014
Internet Use Policy

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F. As is the case with any electronic media system provided by the City, Library users should not have an expectation of privacy when using any form of electronic media.

III. INTERNET ACCESS BY MINORS: REGULATIONS AND

RESTRICTIONS
A. The Palm Desert Public Library provides computer access to minors, including access to the Internet. To the extent possible, steps shall be taken to promote the safety and security of minor users of the online computer network when using email, chat rooms, instant messaging and other forms of direct communication.

B. Specifically, as required by CIPA, prevention of inappropriate network usage includes unauthorized access, including “hacking” and other unlawful activities as well as unauthorized disclosure, use and dissemination of personal information regarding minors.

IV. SUPERVISING COMPUTER USE BY CHILDREN
A. Access for all customers under the age of 18 will be filtered. Filtering software may not block all material users find offensive. Library staff Librarians cannot act in the place of parents in providing constant care and supervision of children as they explore the Internet. Parents and legal guardians are responsible for monitoring any and all Internet use by minors and consent given on the part of parents or legal guardians for a Library card constitutes acknowledgment by the parents or guardians that they have a responsibility for monitoring their child’s use of all Library resources, including the public computers.

B. The following are recommended guidelines for parents and guardians to ensure that children have positive online experiences, whether at home or at the Library.
i. Explore the wide range of available information and tell your children about sites you consider inappropriate for them.
ii. Provide guidelines for your children on the amount of time they spend online, just as for television viewing.
iii. Teach children to never give out personal identification information (name, address, password, telephone number, social security number, credit card number) about themselves or others without first asking a parent for permission.
iv. Teach children to be good online consumers. As with print information, consider the source, date, and accuracy of online information. v. Teach children to exercise discretion and caution when communicating using the Internet, electronic mail, chat rooms, and other forms of direct electronic communications in order to remain safe and secure (e.g. avoidance of predators, cyber-bullying, and scams).

V. INTERNET ACCEPTABLE USE RULES FOR ALL USERS
216
Administrative Procedures Manual
LIBR-014
Internet Use Policy

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A. Users read and agree when logging into a computer to abide by this Internet Use and Safety Policy, including guidelines for use of the Internet by minors.

B. Customers are expected to adhere to all rules governing the use of the Internet in libraries, including the duration and frequency of sessions.

Customers who violate Library policy regarding the use of the Internet or who behave in a disruptive manner will be asked to either modify their use appropriately or discontinue such usage or have their Internet usage access terminated. In addition, customers must maintain a Library account in good standing and comply with all computer usage rules including printing limits.

C. All Internet use is subject to the Palm Desert Library Code of Conduct.

Customers who observe violations of the Palm Desert Library Code of Conduct should contact Library staff immediately.

D. Users shall not disclose, use, or disseminate personal identification information regarding minors without proper authorization.

E. Users shall utilize the Library network for lawful activities only. They shall not use the network to cause harm to others or damage the property of others.

They shall not intentionally upload, download or create computer viruses or other forms of malicious programming, attempt to harm or destroy equipment, manipulate the data of any other user, or seek unauthorized access to networks and systems, including so-called “hacking.”
VI. WI-FI
A. We provide free wireless internet access during open hours to anyone with a Wi-Fi-enabled laptop or mobile device. Just connect your laptop, tablet, or smartphone to our wireless network, e.g., PDLPublic.

B. Like any public wireless network, our Wi-Fi service is not secure. Be aware of the risks and avoid sending sensitive information through the network. 217

CITY OF PALM DESERT
Subject Prohibition on Youth Bullying
Policy No. LIBR-015
Date Issued: August 22, 2024
Amended: N/A
Approved by Resolution No. {2024-XX}
Authored by Library Services
I. PURPOSE
A. This policy protects the dignity and safety of youth served by the City of Palm Desert. This policy prohibits bullying, harassment, and intimidation in all library activities, programs, events, and facilities.

II. DEFINITIONS
A. “Bullying” shall be defined as any severe, pervasive, or persistent act or conduct whether physical, electronic, or verbal that:
i. May be based on a youth’s actual or perceived race, color, ethnicity, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, intellectual ability, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, or any other distinguishing characteristic, or on a youth’s association with a person or group with any of the actual or perceived foregoing characteristics; and ii. Can reasonably be predicted to:
i. Place the youth in reasonable fear of physical harm to their person or property;
ii. Cause a substantial detrimental effect on the youth’s physical or mental health;
iii. Substantially interfere with the youth’s academic performance or attendance; or
iv. Substantially interfere with the youth’s ability to participate in or benefit from the services, activities, programs, facilities, or privileges provided by an agency or contractor or agent thereof.

III. PROHIBITION AGAINST BULLYING
A. Acts of bullying, including cyberbullying, whether by youth, customers volunteers, or staff, are prohibited in all library activities, programs, events, and facilities.
218
Administrative Procedures Manual
LIBR-0015
Prohibition on Youth Bullying

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B. Retaliation against a youth, customer, volunteer, or staff member who reports bullying, provides information about an act of bullying, or witnesses an act of bullying is also prohibited.
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Erica Powell, Management Analyst
SUBJECT: APPROVE THE PURCHASE OF TWO SCULPTURES FROM THE 2023/24 EL PASEO SCULPTURE EXHIBITION
RECOMMENDATION:

1. Approve the purchase of The Seeker by Delos Van Earl in the amount of $12,000, and SWIRLY GIRL (Female Superhero) by Karen & Tony Barone in the amount of $17,700 from the 2023/24 El Paseo Sculpture Exhibition for inclusion in the City of Palm Desert’s permanent public art collection.

2. Authorize the City Attorney to make necessary nonmonetary changes to the agreements.

3. Authorize the City Manager to execute the agreement and any written requests for change orders, amendments, and any other documents necessary to effectuate this action, in accordance with Section 3.30.170 of the Palm Desert Municipal Code.

BACKGROUND/ANALYSIS:

The City of Palm Desert occasionally purchases artwork from its El Paseo Sculpture Exhibition to enhance to the beauty of the city, elevate the prestige of its public art collection, and serve as an incentive to artists to participate in future exhibits.

At its regular meeting of June 12, 2024, the Cultural Arts Committee recommended purchasing two sculptures featured in the El Paseo Sculpture Exhibition:
 The Seeker by Delos Van Earl, and
 SWIRLY GIRL (Female Superhero) by Karen & Tony Barone Sculpture descriptions and recommended installation locations are listed below.

The Seeker by Yucca Valley artist Delos Van Earl
 The Seeker stands at 12’ tall. The vertical form is made of steel and covered in an oil enamel. The artist describes The Seeker as an alien, a space man, a bird or a reptilian form. The vertical form stems from the artist growing up in the northwest and being raised in a logging family.
 Recommended installation location is on the west end of El Paseo, near the stop sign behind Ross Dress for Less (where the Recycle sculpture currently is placed).

SWIRLY GIRL (Female Superhero) by Rancho Mirage artists Karen & Tony Barone  SWIRLY GIRL (Female Superhero) is a futuristic female superhero, confidently posed and ready for action. The 8’ tall painted aluminum sculpture stands firmly on an arched base, with her arms in a power pose. Female superheroes are a frequently explored theme in the Barone’s portfolio of work.
221
City of Palm Desert
Approve the Purchase of Two (2) Sculptures from the 2023/24 El Paseo Sculpture Exhibition

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 The recommended installation location is in the Portola Avenue median, between Gerald Ford Drive and Dinah Shore Drive.

If both purchases are approved, the sculptures will remain in place as part of the El Paseo Sculpture Exhibition until October 2024, after which they will be relocated and installed at their permanent location.

FINANCIAL IMPACT:

The purchase price for The Seeker is $12,000 and SWIRLY GIRL is $17,700 for a total purchase price of $29,700. Additional costs associated with this request include pad fabrication, artwork installation, lighting, electrical installation, and other incidental costs which should not exceed $6,500. Funds are available in the 2024/25 Public Art Budget, Account Number 4364650- 4400100. There is no impact to the General Fund with this action.

ATTACHMENTS:

1. Images of Recommended Purchases and Proposed Installation Locations

2. Draft Contract for purchase of The Seeker by Delos Van Earl

3. Draft Contract for purchase SWIRLY GIRL (Female Superhero) by Karen & Tony Barone 222
Recommended Sculpture Purchases from the
2023/34 El Paseo Sculpture Exhibition and
Proposed Installation Locations

1. Artwork: SWIRLY GIRL (Female Superhero) by Karen & Tony Barone Location: Portola Avenue median between Gerald Ford Drive and Dinah Shore Drive
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224

2. Artist: The Seeker by Delos Van Earl
Location: West end of El Paseo, near the stop sign behind Ross Dress for Less 225

226
CONTRACT NO.

CONTRACT TO PURCHASE ARTWORK
This Agreement is made as of August 22, 2024 by and between the City of Palm Desert, a municipal corporation ("CITY"), and Delos Van Earl, a sole proprietor located in Yucca Valley, California (“ARTIST”) who agree as follows:

RECITALS
Section 1. As part of the City’s Art in Public Places program, certain funds are available for the establishment of artworks in public places and for the purchase or commissioning of artworks and;
Section 2. History of Work. The Seeker by Delos Van Earl has been and will be displayed on El Paseo as part of the 2023/2024 El Paseo Exhibition from November 2022 through October 2024. The Work was selected for purchase by CITY through review by the Cultural Arts Committee and is therefore being purchased by CITY.

NOW, THEREFORE, the parties mutually agree as follows:

Section 1. Price. CITY shall pay ARTIST a firm fixed price of $12,000.00 for the sculpture described as The Seeker (“Work”). It is agreed that City has no obligations regarding commissions or any agreements with galleries or agents with whom ARTIST may have contracted.

Section 2. Warranty of Originality. ARTIST warrants that the performance, design, and Work being purchased is original and the product of ARTIST’S own creative efforts and does not infringe the right of any persons. ARTIST also warrants that, unless otherwise stipulated in writing and attached hereto, the Work is original, that it is an edition of one (1), and that ARTIST shall not sell, license, perform, or reproduce a substantially identical copy of the Work without the prior consent of CITY.

Section 3. Warranty on Workmanship. ARTIST shall warrant and maintain his/her Work free from all faults or defects arising from material and workmanship for a period of one (1) year after purchase.

Section 4. Alteration of Work. Pursuant to the provisions of the California Art Preservation Act, California Civil Code section 987 et seq., CITY agrees that it will not intentionally destroy, damage, alter, modify, or change the Work in any way. If an alteration should occur, either intentionally or unintentionally, then the Work will no longer be represented as the work of the ARTIST without his/her written permission. CITY agrees to reasonably assure that the Work is properly preserved, maintained, and protected. CITY shall, however, have the right to move or relocate the Work or remove it from display without the consent of ARTIST.

by CITY shall be considered a reasonable fee. In the event ARTIST refuses to make the repair for such fee, CITY may proceed to arrange for such repair by a person qualified to accomplish the restoration. When emergency repairs are necessary in order to prevent the loss of or further damage to the Work, such repairs shall be undertaken or arranged by CITY without advance notice to ARTIST, and such repairs shall not be deemed to constitute an artistic alteration.

Section 6. Authorship of Work. ARTIST shall retain the right to claim authorship of the Work. CITY shall assure that ARTIST’S name shall be publicly displayed on, at, or near the Work. In the event the Work is substantially damaged or artistically altered in a substantial manner, CITY shall no longer represent the Work to be the Work of ARTIST if ARTIST gives written notice to CITY that it is the position of ARTIST that ARTIST has the right to deny authorship on the grounds stated in this paragraph. In the event CITY disputes the right of ARTIST to deny authorship, the matter shall be submitted to the Arbitration Service of California Lawyers for the Arts which shall determine the issue of whether the Work is substantially damaged or artistically altered in a substantial manner.

Such determination shall be binding upon CITY and ARTIST and neither shall have any further recourse or cause of action regarding the matters so determined.

Section 7. Indemnification. ARTIST shall assume the defense of, and indemnify and save harmless, the City, its officers, agents, employees and volunteers, and each and every one of them, from and against all actions, damages, costs, liability, claims, losses, and expenses of every type and description to which any or all of them may be subjected, by reason of, or resulting from, directly or indirectly, the performance of this Agreement by ARTIST, whether within or without the scope of this Agreement, whether or not it is caused in part by a party indemnified hereunder. The foregoing shall include, but not be limited to, any attorney fees reasonably incurred by CITY. The obligation to defend and indemnify the CITY shall terminate upon the completion of the one year warranty period.

Section 8. Copyright. Upon purchase of ARTIST’S Work, copyright of the Work will be owned jointly by CITY and ARTIST and no further use of the copyright will be made by ARTIST or CITY without the written consent of the other, which consent will not be unreasonably withheld.

CITY has the right to reproduce and distribute in printed form and on commercial documents and/or brochures or any other literature of CITY describing or dealing with its real estate holdings, photographs, realistic renderings, videotapes, or films of the Work.

Such reproductions and use of the images of the Work for promotional purposes shall not constitute a breach of copyright and no royalty shall be due and payable by CITY to ARTIST for such use.

Section 9. Credit to the Artist. Such reproduction and images of the Work which feature the Work as art for publicity, promotion, and educational purposes shall, to the extent reasonably possible and appropriate, give reference to the artist. Reproduction and images of Work in which the purpose of the reproduction or image is predominantly unrelated to the Work shall not require reference to artist.

Section 10. Artist Reproduction Rights. Pursuant to Section 8, CITY agrees that ARTIST shall have the right to reproduce and distribute in printed form and on non-commercial 228
CONTRACT NO.

educational materials and brochures advertising or promoting ARTIST and ARTIST’S career, two-dimensional images such as photos, slides, or realistic renderings, video tapes, or films of the Work as installed. Such reproductions and use of the images of the Work for promotional and educational purposes shall be deemed to not constitute a breach of copyright in any way and no royalty fee shall be due and payable to ARTIST for such use. Such reproduction and images of the Work for publicity, promotion, and educational purposes shall, to the extent reasonably possible and appropriate, give reference to City of Palm Desert.

Section 11. Records. CITY agrees to maintain for a reasonable period of time a record of this Agreement and of the location and disposition of the Work.

(b) If any matter is to be submitted to a third party for resolution, all fees, expenses, and costs connected therewith shall be borne jointly and equally by CITY and ARTIST. Each and every obligation under this Agreement to submit any matter to a third party for resolution is conditioned upon the foregoing provision of this paragraph. If any matter is to be submitted to the Arbitration Service of the California Lawyers for the Arts for resolution pursuant to the Agreement, and if, at the time such submission is called for, the Arbitration Service of the California Lawyers for the Arts is not in existence or is not able or willing to provide such resolution service, then the matter shall be submitted for resolution to the American Arbitration Association in accordance with their procedures then in use.

Section 13. Artist's Rights; Notification of Change of Address. ARTIST shall notify the CITY of any change of address and failure to do so shall constitute a waiver of ARTIST’S rights pursuant to this Agreement during the time such omission prevails. Any waiver of a right pursuant to this Agreement for failure to maintain ARTIST’S current address so aforesaid may be cured prospectively only by notifying the CITY of ARTIST’S current address. All rights of ARTIST pursuant to this Agreement shall be personal to ARTIST and shall terminate upon either the legal disability or incompetence of ARTIST or upon the death of ARTIST, except as provided ARTIST under the Copyright Laws. No right of ARTIST pursuant to this Agreement may be assigned or transferred in any manner, including without limiting the generality of the foregoing any hypothecation or pledge or any grant of any security interest, except as provided by ARTIST under the Copyright laws.

Section 14. Notice. All notices shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows:

City: City of Palm Desert
229
CONTRACT NO.

Erica Powell, Public Art Management Analyst
73-510 Fred Waring Drive
Palm Desert, CA 92260
(760) 346-0611
Artist: Delos Van Earl
55666-A Yucca Trail
Yucca Valley, CA 92284
(760) 333-2274
Section 15. Entire Agreement; Amendment. This Agreement is the entire agreement of the parties and supersedes all prior negotiations and agreements whether written or oral.

This Agreement may be amended only by written agreement and no purported oral amendment to this Agreement shall be valid.

CITY OF PALM DESERT, a municipal corporation:

L. Todd Hileman, City Manager

Date
ATTESTED TO:

Anthony J. Mejia, City Clerk
ARTIST:

Delos Van Earl

Date
APPROVED AS TO FORM:

Isra Shah, City Attorney

Date
230
CONTRACT NO.

CONTRACT TO PURCHASE ARTWORK
This Agreement is made as of August 22, 2024 by and between the City of Palm Desert, a municipal corporation ("CITY"), and Karen & Tony Barone, a partnership located in Rancho Mirage, California (“ARTIST”) who agree as follows:

RECITALS
Section 1. As part of the City’s Art in Public Places program, certain funds are available for the establishment of artworks in public places and for the purchase or commissioning of artworks and;
Section 2. History of Work. SWIRLY GIRL (Female Superhero) by Karen & Tony Barone has been and will be displayed on El Paseo as part of the 2023/2024 El Paseo Exhibition from November 2022 through October 2024. The Work was selected for purchase by CITY through review by the Cultural Arts Committee, and is therefore being purchased by CITY.

NOW, THEREFORE, the parties mutually agree as follows:

Section 1. Price. CITY shall pay ARTIST a firm fixed price of $17,700.00 for the sculpture described as SWIRLY GIRL (Female Superhero) (“Work”). It is agreed that City has no obligations regarding commissions or any agreements with galleries or agents with whom ARTIST may have contracted.

Section 3. Warranty on Workmanship. ARTIST shall warrant and maintain his/her Work free from all faults or defects arising from material and workmanship for a period of one (1) year after purchase.

Section 5. Repair. Insofar as is practical, in the event repair of the Work is required, CITY shall give ARTIST, during his or her lifetime, the opportunity to do that work for a reasonable fee. In the case of disagreement between CITY and ARTIST as to what 231
CONTRACT NO.
constitutes a reasonable fee, the fee determined by an independent conservator selected by CITY shall be considered a reasonable fee. In the event ARTIST refuses to make the repair for such fee, CITY may proceed to arrange for such repair by a person qualified to accomplish the restoration. When emergency repairs are necessary in order to prevent the loss of or further damage to the Work, such repairs shall be undertaken or arranged by CITY without advance notice to ARTIST, and such repairs shall not be deemed to constitute an artistic alteration.

Such determination shall be binding upon CITY and ARTIST and neither shall have any further recourse or cause of action regarding the matters so determined.

Such reproductions and use of the images of the Work for promotional purposes shall not constitute a breach of copyright and no royalty shall be due and payable by CITY to ARTIST for such use.

Section 10. Artist Reproduction Rights. Pursuant to Section 8, CITY agrees that ARTIST shall have the right to reproduce and distribute in printed form and on non-commercial educational materials and brochures advertising or promoting ARTIST and ARTIST’S career, two-dimensional images such as photos, slides, or realistic renderings, video tapes, or films of the Work as installed. Such reproductions and use of the images of the Work for promotional and educational purposes shall be deemed to not constitute a breach of copyright in any way and no royalty fee shall be due and payable to ARTIST for such use. Such reproduction and images of the Work for publicity, promotion, and educational purposes shall, to the extent reasonably possible and appropriate, give reference to City of Palm Desert.

Section 11. Records. CITY agrees to maintain for a reasonable period of time a record of this Agreement and of the location and disposition of the Work.

Section 12. Breach of Agreement; Arbitration.
(a) In the event ARTIST or CITY believes that the other has failed to faithfully perform this Agreement, the aggrieved party shall notify the other in writing of such failure. Such notice shall specify in detail each and every failure and the reason such failure is a breach of the Agreement. In the event that the parties cannot resolve the dispute, the Arbitration Service of the California Lawyers for the Arts shall determine whether or not there has been a failure to perform this Agreement and such determination shall be final and binding upon both ARTIST and CITY.
(b) If any matter is to be submitted to a third party for resolution, all fees, expenses, and costs connected therewith shall be borne jointly and equally by CITY and ARTIST. Each and every obligation under this Agreement to submit any matter to a third party for resolution is conditioned upon the foregoing provision of this paragraph. If any matter is to be submitted to the Arbitration Service of the California Lawyers for the Arts for resolution pursuant to the Agreement, and if, at the time such submission is called for, the Arbitration Service of the California Lawyers for the Arts is not in existence or is not able or willing to provide such resolution service, then the matter shall be submitted for resolution to the American Arbitration Association in accordance with their procedures then in use.

Section 14. Notice. All notices shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows:
233
CONTRACT NO.

City: City of Palm Desert
Erica Powell, Public Art Management Analyst
73-510 Fred Waring Drive
Palm Desert, CA 92260
(760) 346-0611
Artist: Karen & Tony Barone
37081 Ferber Dr.

Rancho Mirage, CA 92270
(760) 333-8953
Section 15. Entire Agreement; Amendment. This Agreement is the entire agreement of the parties and supersedes all prior negotiations and agreements whether written or oral.

This Agreement may be amended only by written agreement and no purported oral amendment to this Agreement shall be valid.

CITY OF PALM DESERT, a municipal corporation:

L. Todd Hileman, City Manager
Date
ATTESTED TO:

Anthony J. Mejia, City Clerk
ARTIST:

Karen & Tony Barone

Date
APPROVED AS TO FORM:

Isra Shah, City Attorney
Date
234

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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Chris Gerry, Senior Project Manager
SUBJECT: APPROVE THE PURCHASE OF 19 TRAFFIC SIGNAL CABINETS FOR TRAFFIC SIGNAL HARDWARE UPGRADES (PROJECT NO. MTS00003) RECOMMENDATION:

1. Approve the purchase of 19 traffic signal cabinets for Traffic Signal Hardware Upgrades to Econolite Control Products, Inc., in the amount of $381,718.67.

2. Authorize the City Manager to execute all documents necessary to effectuate this action, in accordance with Section 3.30.170 of the Palm Desert Municipal Code.

BACKGROUND/ANALYSIS:

The Traffic Signal Hardware Upgrade Project is an annual maintenance program that involves upgrading and replacing existing traffic signal hardware. The Public Works Department is responsible for the advance purchase of traffic signal cabinets due to the extensive manufacturing lead time, which can span several months. To ensure optimal functionality and minimize downtime, staff conduct rigorous quality control checks on each cabinet before deployment.

Current Status:

The traffic cabinets are slated for installation in upcoming traffic rewiring and intersection improvement projects. Having these cabinets readily available allows for more efficient project scheduling, thereby reducing potential disruptions to motorists.

Inventory Management:

The City owns and maintains more than 100 signalized intersections. Each signalized intersection includes a signal controller cabinet that houses the signal controller and other vital signal components. The majority of the City-owned controller cabinets are Econolite Type P cabinets, with a few Econolite Type R cabinets.

Recent vehicle accidents have damaged existing cabinets, and the current stock has been utilized to replace them. The requested cabinets are intended to replenish the City’s inventory, provide a reserve for future incidents, and ensure a swift response to any unforeseen damage.

Conclusion:

The procurement and preemptive quality control of traffic cabinets are crucial for maintaining traffic infrastructure and minimizing project delays. This proactive approach not only supports ongoing and upcoming traffic management projects but also strengthens the City’s capacity to address emergencies and maintain efficient operations. Econolite Control Products, Inc., has continuously been the exclusive manufacturer and supplier of all City traffic signal cabinets to ensure uniformity and compatibility across our traffic management system. This approach simplifies maintenance and repair by using interchangeable parts and components. Additionally, 235
City of Palm Desert
Approve Purchase of Traffic Signal Cabinets

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it allows the City to secure cost savings through bulk purchasing agreements and reduces the administrative burden of managing multiple suppliers. By consolidating the purchases with one manufacturer, the City receives enhanced system reliability and streamlined technical support.

Note the vendor is the sole source provider of this cabinet (see attachment), and the cabinet is not offered through a State procurement program managed by the California Department of General Services.

Legal Review:

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

FINANCIAL IMPACT:

Funds in the amount of $800,000 for Traffic Signal Hardware Upgrade Project are included in the approved FY 2024-25 Capital Improvement Project (CIP) List. The expense is allocated to Measure A Account No. 2134250-5000906; therefore, approval of this purchase has no financial impact to the General Fund beyond administrative costs.

ATTACHMENT:

1. Quote

2. Sole Source Provider Letter
236
Quotation
1250 N. Tustin Ave. Anaheim, Ca. 92807
econolite.com/feedback

Page 1 ends

7/25/2024
To:

Item # Part Qty Description Tariff Price per Extended
1 CAB18250 12 TS2-2 PNG P44 BM 16 VERT MP

CABINET, IN/OUT-BARE
$42.15 $18,134.80 $217,617.60
2 CAB18919 1 P44, NAT-OUT/IN, TS2-1 PNG, 16V,

BM CABINET WITH STREET

LIGHTING SUB-PANEL
$25.86 $18,783.00 $18,783.00
3 CAB18301 5 TS2-1 PNG R77 BM 16 POS VERT
MAIN PNL CABINET; IN/OUT-BARE
$23.75 $19,713.75 $98,568.75
4 CAB18920P 1 R77, NAT-OUT/IN, TS2-1 PNG, 16V,

BM CABINET W/PLANS MONTEREY
@ DINAH SHORE
$23.75 $18,668.25 $18,668.25
Robert Becerra
Palm Desert, CA; City of
73-510 Fred Waring Drive
74-705 42ND AVE
Palm Desert, CA 92260-2578
Quote Name: Cabinets Quote
Project Reference:

Econolite Reference: Q-46074-046D
Subtotal $353,637.60
Shipping & Handling*
Taxes** $27,406.91
Tariffs** $674.16
TOTAL $381,718.67
237
Quotation
1250 N. Tustin Ave. Anaheim, Ca. 92807
econolite.com/feedback

Page 2 ends

Unless specifically requested or noted on this quotation, the product(s) quoted herein may or may not comply with any Buy America requirements.

Cabinet designs are considered final at time of order. Changes requested after date of order may result in additional fees and extended shipping lead times.

The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or legally privileged material. Any review, retransmission, dissemination, or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited except as required by law.

Quote Valid For Days: 60
FOB: Econolite Factory
Terms: NET30
*Ship Terms: PPD
**Taxes and Tariffs Estimated (if included)
Corey Kelly
Corey Kelly, Account Manager, Senior
Mobile: 714-273-4912
[email protected]
Shipping Date: To be determined at time of receipt of order 238
239
240

Page 1 of 1 ends

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Erica Powell, Management Analyst
SUBJECT: APPROVE THE RELOCATION OF RECYCLE BY JOHN BRANSTETTER RECOMMENDATION:

Approve the relocation of Recycle sculpture by John Branstetter, currently located on El Paseo, to the Burrtec Waste Management Recycle Center on Corporate Way.

BACKGROUND/ANALYSIS:

In 2007, the sculpture Recycle by artist John Branstetter was created to support the City of Palm Desert’s recycling program and energy initiatives. Recycle was displayed in front of City Hall for one year before being relocated in 2009, to El Paseo, west of Highway 74.

In response to the Cultural Arts Committee’s request to consider possible deaccession of the sculpture, staff proposed its relocation at the June 12, 2024, meeting. This relocation, as defined under the City’s Public Art Deaccessioning Policy, would move the sculpture to the City’s rightof-way in front of the Burrtec Waste Management Recycle Center located at 41800 Corporate Way (exact location depicted in the attachment). Burrtec staff and the artist are both agreeable to the installation location. The City will continue to be responsible for the maintenance and any unexpected repairs of the sculpture.

FINANCIAL IMPACT:

The estimated costs for relocation are not to exceed $6,000, including deinstallation, logistics, site preparation, installation, and signage. Funding is available in Public Art Account No. 4364650-4337200. This project will not impact the General Fund.

ATTACHMENTS:

1. Public Art Deaccession Policy

2. City of Palm Desert Public Art Deaccessioning/Relocating Worksheet

3. Artist Disclosure and Waiver of Proprietary Rights

4. Photos of current location and proposed relocation
241
242
City of Palm Desert’s Public Art Deaccessioning Policy

DEFINITION
Deaccession means the formal process to permanently remove a City-owned public artwork by selling, donating, or destroying it.

POLICY
A. The purpose of the Public Art Deaccessioning Policy (“Policy”) is to maintain a deaccession program that results in high-quality, City-owned public artwork; eliminate artworks that are unsafe, not repairable, or no longer meet the needs of the City, and respect the creative rights of artists.

B. Although the City of Palm Desert would like each public artwork to remain in situ for a minimum of 15 years (although 15 years is not a limit on the life of an artwork), it recognizes that public artwork is not necessarily going to remain in place in perpetuity.

C. Any proposal for removal, destruction, or relocation of an artwork shall be submitted to the Cultural Arts Committee by City staff and reviewed according to the policies and procedures contained herein and shall be deliberate and independent of political pressures, fluctuations in artistic taste, popularity, and public opinion.

D. At regular intervals, the City’s public artwork collection shall be evaluated by the Cultural Arts Committee to determine the condition of each artwork and determine whether any artwork should be deaccessioned.

APPLICABLE ARTWORK
This Policy applies to all City-owned artwork acquired through the Public Art program or through donation. In the case of donated artwork, all legal documents surrounding the donation must be reviewed and a legal opinion rendered by the City Attorney before proceeding with the deaccessioning process.

CRITERIA FOR DEACCESSIONING
One or more of the following criteria must apply prior to an artwork being deaccessed:

1. Damage Beyond Repair - The artwork has been damaged and repair is unfeasible or repair costs would exceed the value of the artwork.

2. Safety - The artwork is deemed hazardous and a threat to public safety.

3. Deterioration - The artwork has deteriorated to the point that the restoration cost is greater than its monetary value or the artwork has deteriorated beyond the original design and restoration would prove impractical or would render the work essentially false.

4. Security - The condition or security of the artwork cannot be reasonably guaranteed or the City of Palm Desert cannot properly care for or store the artwork.

5. Site Alteration - In the case of site-specific artwork, the artwork has become inappropriate, is no longer accessible to the public, it is unsafe, or it is due to be destroyed and would severely alter its relationship to the site. 243
City of Palm Desert’s Public Art Deaccessioning Policy
07/13/2023
[Type here]

6. Excessive Maintenance - The artwork requires excessive or unreasonable maintenance.

7. Loss of Site – The current site is no longer available and no suitable alternate site for the artwork is available.

8. Aesthetic Value - The artwork is of poor quality or is judged to have little aesthetic and/or historical or cultural value.

9. Failure to Comply - If the approved terms of the contract pursuant to which the artwork was installed have not been fulfilled.

10. Inauthentic - The artwork is a forgery or in violation of existing copyright laws.

11. Theft – The artwork has been stolen. Any stolen artwork will be documented through an official police report and a report prepared by the entity that owns or is responsible for the site of loss.

SEQUENCE OF ACTION / PROCEDURES

1. Deaccession requests may be submitted by a neighborhood organization, City department, independent City board or commission, or a City Council member.

The Cultural Arts Committee will review each preliminary request. City staff will work with the applicant to bring a full proposal to the Cultural Arts Committee.

2. Staff will provide the applicant with a Deaccessioning Form that will serve as the applicant’s formal request for consideration by the Cultural Arts Committee.

3. Staff (with assistance from the property owner, if applicable) will make reasonable effort to notify and consult with any living artist(s) whose work is being considered for deaccession as to the best procedure for artwork removal.

The City will allow the artist(s) 30 days to respond.

4. If the artist(s) is/are deceased, the City will make reasonable efforts to contact artist(s) estate.

5. After an attempt to contact the artist(s) is made, staff will consult with the City Attorney on how to proceed with the deaccessioning.

6. Once the request is reviewed by the City Attorney, the applicant will complete and return the Deaccessioning Form.

7. City staff will use the information from the Deaccessioning Form to complete a staff report addressing the proposed removal of the artwork. The staff report will provide all available relevant information and materials to the Cultural Arts Committee, including, but not limited to:
a. Artist, Title, and Location of artwork.
b. Name of property owner and contact information.
c. Property owner at the time of commission or installation. d. Year commissioned/purchased, original cost of artwork, and applicable Art in Public Places (AIPP) fee.
e. Dimensions and removal/re-installation instructions. f. Appraisal of the artwork provided by a qualified art appraiser and current condition of artwork. If appropriate, current fair market value of the artwork.
g. Detailed reason for deaccessioning/relocating artwork. h. Proposed deaccession method or new location for artwork (relocation, sale, donation, demolition, etc.).
244
City of Palm Desert’s Public Art Deaccessioning Policy
07/13/2023
[Type here]
i. Maintenance evaluation.
j. Any relevant images.

8. The staff report will then be placed on the Cultural Arts Committee agenda at a regularly scheduled public meeting, where it will be reviewed and voted on.

9. If the Cultural Arts Committee approves the deaccession, City staff will bring the staff report before the City Council for review and final action.

10. If deaccession is approved by the City Council, all documents will be updated to reflect the deaccessioning of the artwork. Staff will review property records from the County Recorder’s Office and if an artwork covenant is recorded against the property, the City will cause a release covenant to be filed.

11. The deaccessioning process should be documented in both written and visual form.

12. If an artwork is sold, proceeds should be deposited into the Art in Public Places fund.

13. The City’s Risk Manager must be notified so that the work can be removed from the City’s insurance policy.

DEACCESSIONING METHOD OPTIONS

1. If appropriate, reasonable efforts will be made to move the work to a new location within the City. If the artwork was designed for a specific site, City will consider the artist’s intent when deciding where to relocate the artwork.

2. The artist(s) will be given the first option to purchase or exchange the artwork. If the artist(s) decides to purchase the work, they will be responsible for the cost of the removal of the artwork from the current site. If the artist(s) is/are deceased, the legal heir(s) will have first rights of purchase. The artist(s) can purchase the artwork at fair market value according to the appraisals obtained by a qualified appraiser.

3. Put the work in storage until a new, appropriate location can be found.

4. Donate work to a school, an educational or non-profit organization.

5. Dispose of work in an appropriate manner.

PROVISIONS FOR EMERGENCY REMOVAL
In the event that the structural integrity or condition of an artwork is such that, in the opinion of the Public Art staff, the artwork presents an imminent threat to public safety, the City Manager may authorize its immediate removal without Cultural Arts Committee action or the artist’s consent and have the work placed in temporary storage. The artist and the Cultural Arts Committee will be notified of this action within 30 days. The Committee will then consider options for disposition: repair, reinstallation, maintenance or deaccessioning. If the artwork cannot be removed without being altered, modified, or destroyed, and if the Artist’s Agreement with the City and County has not waived his/her rights under the California Art Preservation Act and the Visual Artists Rights Act, City staff will attempt to gain such written permission before proceeding. In the event that this cannot be accomplished before action is required in order to protect the public health and safety, the City Manager shall proceed with the advice of the City Attorney. 245
City of Palm Desert’s Public Art Deaccessioning Policy
07/13/2023
[Type here]

COMPLIANCE WITH APPLICABLE POLICIES AND REGULATIONS
Deaccession and removal of artwork will be done in a manner that complies with all other applicable city, state, and federal procedures, policies and regulations. For example, deaccession and removal actions must comply with applicable procedures and laws relating to the disposition of city property and with laws protecting artists’ rights.
246
City of Palm Desert Public Art Deaccessioning/Relocating Worksheet Artist: John Branstetter_______
Title: Recycle
Location of work: West end of El Paseo, near Hwy 111, across from Sandpiper Community
Name of property: El Paseo median, City of Palm Desert right-of-way Contact name: Erica Powell, Management Analyst – Public Art Phone: 760-346-6346 Extension: FAX:

Property owner at the time of commission: City of Palm Desert Year commissioned/purchased: 2006, 2008 installed ______ Purchase Price / Art in Public Places fee / Value at time of install: $20,000______ Dimensions: Height:11’ Width: 4’ Depth: 15” Weight: unknown Estimated current fair market value: unknown
Source of estimation: n/a
Proposed deaccession reviewed by City Attorney: Yes: X No:

Detailed reason for deaccessioning artwork: To promote City’s recycle program at Burrtec’s recycling center in Palm Desert. Sculpture has been on display in the median of El Paseo, prime real estate, for 15 years and the Cultural Arts Committee would like to refresh this art pad and promote the recycle center.

Proposed deaccessioning method: relocation
New location for work (if it is being moved): Burrtec Waste and Recycling Center, 41800 Corporate Way
Condition: Excellent XX Good Fair Poor
Maintenance evaluation and instructions:
247
248

DISCLOSURE AND WAIVER
OF ARTIST’S PROPRIETARY RIGHTS

1. Disclosure of Artist’s Rights:

In 2006, the City of Palm Desert (the “City”) commissioned artist John Branstetter (the “Artist”) to create a public artwork that would educate and encourage City residents to recycle and conserve. As a result, the Artist designed a work of visual art in the form of a sculpture, titled “Recycle” (“the Sculpture”). The Artist may have “moral rights” in the Sculpture, which include the right of attribution (authorship) and integrity (the right to prevent intentional distortion, mutilation, or other modification of the artwork).

1.1 The two most relevant laws with respect to proprietary rights in original artwork are:
(a) The Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”); and
(b) The California Art Preservation Act (Cal. Civ. Code §§987 - 989)(“CAPA”).

1.2 The laws listed above are not intended to be a complete list of all laws in this area or a complete recitation of the law in this area. The Artist is encouraged to read the laws above and to seek legal advice to better understand the Artist’s rights in the Sculpture.

2. Waiver of Proprietary Rights

2.1 The Artist agrees to waive and does hereby waive voluntarily all rights to attribution and integrity with respect to the Sculpture and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), the California Art Preservation Act (Cal. Civ. Code §§987 - 989) (“CAPA”), or any other local, state, foreign or international law, as currently drafted or as may be hereafter amended, that conveys the same or similar rights (“Moral Rights Laws”), with respect to the Sculpture, its display, removal from display, exhibition, installation, deaccession, conservation, storage, study, alteration and any other activities conducted by the City, its officers, employees, agents, contractors, licensees, successors or assigns.

2.2 The Artist agrees that if the Sculpture is removed, transported or reinstalled in such a way so as to sustain unintentional physical defacement, mutilation, alternation, distortion, destruction, or other modification (collectively, “Modification”) of the Mural, Artist waives any and all such claims under any Moral Rights Laws arising out of or against the City its officers, employees, agents, contractors, licensees, successors or assigns for Modification of the Mural.

2.3 The Artist Agrees that the City has the absolute right to change, modify, destroy, remove, relocate, move, replace, transport, repair or restore the Sculpture, in whole or in part, in the City’s sole and absolute discretion.

2.4 The Artist understands and agrees that the City has no obligation to pursue claims against third parties for modifications or damage to the Sculpture done without the City’s Docusign Envelope ID: 2D3782CA-1812-407B-AA80-19D9CD2CB9E6 249
authorization. However, the City may pursue claims against third parties for modifications or damage or to restore the Sculpture if the work has been modified without the City’s authorization. In the event that the City pursues such a claim, the City shall make a good faith effort to notify the Artist, and Artist shall cooperate with the City’s efforts to prosecute such claims.

2.5 If the City modifies the Sculpture without the Artist’s consent in a manner that is prejudicial to Artist’s reputation, Artist retains the right to disclaim authorship of the Artwork in accordance with 17 U.S.C. § 106A (a) (2).

2.6 The Artist bears the sole responsibility for providing City with any changes to the Artist’s address for notice.

2.7 Any notices required to be given, hereunder shall be in writing and shall be personally served or given by mail. Any notice given by mail shall be deemed given when deposited in the United States Mail, certified and postage prepaid, addressed to the Party to be served as follows:

To the City:

Erica Powell, Management Analyst
73510 Fred Waring Drive
Palm Desert, CA 92260
To the Artist:

John Branstetter
44917 Golf Center Parkway #3,
Indio, CA 92201-7301
ARTIST
By: _______________________________
Date: _______________________________
Docusign Envelope ID: 2D3782CA-1812-407B-AA80-19D9CD2CB9E6 7/31/2024
250
Current Location and Proposed Relocation for
Recycle by John Branstetter
Current Location on El Paseo west of Hwy 74
Proposed relocation on City’s right-of-way in front of the Burrtec Waste Management Recycle Center located at 41800 Corporate Way, Palm Desert
251
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Shawn Muir, Community Services Manager
SUBJECT: AUTHORIZE THE PURCHASE OF BENCH AND WASTE BIN
REPLACEMENTS FOR EL PASEO FROM OUTDOOR CREATIONS, INC.

RECOMMENDATION:

1. Authorize the purchase of bench and waste bin replacements for El Paseo from Outdoor Creations, Inc., in the amount of $212,095.10.

2. Authorize appropriation in the total amount of $212,095.10 from Reallocated Capital Improvement Bond Proceed Funds to Account Number 4514679-5000102.

3. Authorize the City Attorney to make necessary nonmonetary changes to the agreement.

4. Authorize the City Manager to execute the agreement and any other documents necessary to effectuate this action.

BACKGROUND/ANALYSIS:

El Paseo is an integral part of the core commercial area in Palm Desert, providing shopping and dining experiences for residents and visitors. Public Works staff are responsible for maintaining the roads, sidewalks, medians, landscaping and outdoor equipment, including benches and waste bins.

The benches and waste bins on El Paseo were replaced in 2012 with a recycled concrete product, which has been found to have a shorter lifespan than new concrete products. The benches and waste bins are in poor condition and need replacement. Staff conducted research to attain a more durable alternative and discovered that products containing a nano-coating were more resistant to staining and graffiti, easier to clean, and are longer-lasting.

Staff contacted four concrete vendors to solicit quotes for the benches and waste bins. One vendor declined to provide the custom product requested. The three quotes obtained are as follows:

Vendor Location Cost
Seawright Custom Precast, Inc. Coachella, California $177,340.34 Outdoor Creations, Inc. Anderson, California $212,095.10 Wasau Tile, Inc. Rothschild, Wisconsin $238,238.47
Although Seawright Custom Precast, Inc. provided the lowest proposal, staff have previously found this vendor to have long lead times for large orders. Staff intend to purchase the equipment and complete installation before the peak shopping season on El Paseo. Furthermore, the quote does not include the nano-coating which is desirable for maintaining the benches and waste bins 253
City of Palm Desert
Authorize Purchase of El Paseo Benches and Waste Bins

Page 2 of 2 ends

in the long term. Therefore, staff recommend awarding the Goods and Equipment Purchase Agreement to Outdoor Creations, Inc.

Legal Review:

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

Appointed Body Recommendation:

Staff attended two El Paseo Business Improvement District (EPBID) board meetings to present options for bench and waste bin replacement. EPBID members asked questions and provided input on the design and composition of the benches and waste bins. After receiving this input, staff recommend purchasing 35 new, permanent benches and 35 new, permanent waste bins to replace the existing outdoor equipment along El Paseo.

FINANCIAL IMPACT:

The purchase of the El Paseo equipment is not included in the approved Capital Improvement Project (CIP) List for Fiscal Year 2024-25, as the request was brought forward after the budget approval process. Given the longer-lifetime and sustainability of the new product, staff requests an appropriation of $212,095.10 from reallocated capital improvement bond proceed funds to Account No. 4514679-5000102.

Description 2024-25
Budget
Project Cost Requested
Appropriation
Custom Dual Waste Bins $0 $116,192.21 $116,192.21
Custom Flat Benches $0 $95,902.89 $95,902.89
Totals $0 $212,095.10 $212,095.10
ATTACHMENTS:

1. Outdoor Creations – Quote and Design

2. City Goods and Equipment Purchase Agreement – Outdoor Creations, Inc. 254
Qty. UOM Model # Description Unit Price Amount
35 EA Custom Custom Block Leg 18" x 18" x 78" Flat Bench with 2,368.00 82,880.00 Skate Deterrents and Reveal at Top.
35 <Each> Cast In Logo Cast In Logo - City of Palm Desert Logo Painted Black & Tan on two sides of bench
EA LT SB Light Sandblast
EA NANO Nano - Non-sacrificial sealer
<Each> Tan ODC Tan Color
1 <Each> Shipping Must Be Taxed, Company Owned Truck 6,125.00 6,125.00 Sales Rep

SOLD TO
Good Thru
8/24/24
Terms
TOTAL 95,902.89
Sales Tax 6,897.89
Subtotal 89,005.00
530-365-6106 530-365-5129

QUOTATION
Tim L. Hudson

AUTHORIZED SALES PERSON SIGNATURE
PH# FX#
Email [email protected]

SHIP TO

PLEASE FILL IN THE REQUIRED INFORMATION ON THE ADDITIONAL PAGE WITH THE TERMS AND CONDITIONS.

STANDARD DELIVERY A.R.O AND APPROVED SUBMITTALS/ORDER IS 16+ WEEKS (Does not apply to custom products). 7/25/24
Date: 7/25/24
Quote No.: Q7428
Accounts Payable
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
USA
Tim L. Hudson Net 30 Days
Please sign here to confirm your order and acknowledge that you have read and understand our terms and conditions
Forklift required upon delivery unless other arrangements made prior to order.

Palm Desert, City of Custom Flat Benches
Brad Chuck 760-423-3392
[email protected]
Palm Desert, CA 92260
Purchase Order
2270 Barney Road
Anderson, CA 96007
USA
Outdoor Creations Inc.

Final sales tax will be
calculated at time of
shipping. 255
CUSTOM FLAT BENCH - 18" x 18" x 78"

CITY OF PALM DESERT, CA

ELEVATION SECTION
PLAN
OUTDOOR CREATIONS, INC. SCALE: 1” = 18” MAN. TOL. +/- 1/4" DRAWN BY: MNC 7/25/24 REV.2

OUTDOOR

CREATIONS
INC.
2270 Barney Street
Anderson, CA 96007
(530) 365-6106
FAX (530) 365-5129
NOTES:

1. Concrete mix design to include a mixture of Portland Cement, water, coarse and fine aggregates, pure mineral oxide coloring agents (when applicable) to yield a minimum compressive strength of 5000 psi.

2. Final product shall be reinforced with #4 and #5 rebar grid.

3. Product is cast in 1-piece with no assembly required.

4. Hairline cracks may develop over time. These are not structural failures, but inherent characteristics of the material itself.

5. Air pockets are a common occurrence in precast products.

The frequency and size of air pockets are variable and to be expected, especially on vertical surfaces.

6. Concrete corners and edges will chip if not handled according to guidelines. Patch kits are available but may or may not blend and can be variable.

7. There is a level of care and maintenance associated with your product and is the responsibility of the end user. Choosing the right sealer can help minimize those costs.

WEIGHT: 1200 LBS
TEXTURE: Light Sandblast
COLOR: ODC Tan
SEALER: Nano Tech Barrier
CUSTOMER APPROVAL x________________________________________ BENCH INSTALLATION::

This bench model will have cast in
threaded inserts in the bottom of each leg.

Bench will be supplied with coilrod for
mechanical attachment, as an additional
security method.
**Bench requires epoxy applied to cover
bottom of entire leg. Epoxy adhesive should
be checked periodically to ensure continued
adhesion.
*Threaded inserts in legs for mounting dowels (1 per leg). (2) 3/4” x 8” coilrods provided per bench for mounting. 1/2" Radius on all edges
78 in
18 in
12 in
12 in
1 1/2 in
15 in
15 in 24 in 24 in 15 in
18 in
18 in
15 in 1 1/2 in
12 in
78 in
18 in
15 in 24 in 24 in 15 in Anti Skate Indention
Profile
2”
11/16"
Anti-skate indents on both sides of bench
*Paint colors:

Black
Tan: PPG 1090-6 Allegro
(2) Cast in logos
on outer of both legs
painted black and tan
(background color of concrete)
Size: 14" x 8 1/4"

NEW LOGO
256
*Paint colors:

Black
Tan: PPG 1090-6 Allegro
(2) Cast in logos
on outer both legs
painted black and tan
(background color of concrete)
Size: 14" x 8 1/4"

NEW LOGO
CUSTOM FLAT BENCH - 18" x 18" x 78"

PALM DESERT LOGO, CAST IN
OUTDOOR CREATIONS, INC. DRAWN BY: MNC REV.2

OUTDOOR

CREATIONS
INC.
2270 Barney Street
Anderson, CA 96007
(530) 365-6106
FAX (530) 365-5129
PLEASE NOTE:

It is VERY IMPORTANT to carefully read over your artwork, this includes, but is not limited to, the spelling of names, dates, places, logos, etc. Outdoor Creations Inc. is not liable for replacement of product, if artwork has been approved. Replacement of product that was approved with incorrect spellings, dates, logos, etc will be the responsibility of the customer.

Thank you for your understanding.

I have read the above statement and approve the artwork:__________________________ 257 Qty. UOM Model # Description Unit Price Amount
35 EA Custom Custom 39" W x 33" T x 21 D Dual open top waste 2,906.00 101,710.00 container. Reveal at 6" from Top. 7" wide slots on
bottom for lifting purposes- 2 Liners included -
SQT29
35 <Each> Cast In Logo Cast In Logo - 26" x 18" City of Palm Desert Logo Painted Black & Tan on one side of unit
35 EA Custom Custom Lid - Powdercoated Recycle Blue with (2)RECYCLE Stickers - 9" Deposit Hole
35 EA Custom Custom Lid - Powdercoated Bronze with (2)TRASH Stickers - 9" Deposit Hole
EA LT SB Light Sandblast
EA NANO Nano - Non-sacrificial sealer
<Each> Tan ODC Tan Color
1 <Each> Shipping Must Be Taxed, Company Owned Truck 6,125.00 6,125.00 Sales Rep

SOLD TO
Good Thru
8/24/24
Terms
TOTAL 116,192.21
Sales Tax 8,357.21
Subtotal 107,835.00
530-365-6106 530-365-5129

QUOTATION
Tim L. Hudson

AUTHORIZED SALES PERSON SIGNATURE
PH# FX#
Email [email protected]

SHIP TO

PLEASE FILL IN THE REQUIRED INFORMATION ON THE ADDITIONAL PAGE WITH THE TERMS AND CONDITIONS.

STANDARD DELIVERY A.R.O AND APPROVED SUBMITTALS/ORDER IS 16+ WEEKS (Does not apply to custom products). 7/25/24
Date: 7/25/24
Quote No.: Q7357
Accounts Payable
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
USA
Tim L. Hudson Net 30 Days
Please sign here to confirm your order and acknowledge that you have read and understand our terms and conditions
Forklift required upon delivery unless other arrangements made prior to order.

Palm Desert, City of Custom Dual Waste Receptacles
Brad Chuck 760-423-3392
[email protected]
Palm Desert, CA 92260
Purchase Order
2270 Barney Road
Anderson, CA 96007
USA
Outdoor Creations Inc.

Final sales tax will be
calculated at time of
shipping. 258
CUSTOM TRASH/RECYCLE RECEPTACLE - 39" x 21" x 33"

CITY OF PALM DESERT, CA

ELEVATION
PLAN

SIDE VIEW
OUTDOOR CREATIONS, INC. SCALE: 1” = 18” MAN. TOL. +/- 1/4" DRAWN BY: MNC 3/12/24 REV.1

OUTDOOR

CREATIONS
INC.
2270 Barney Street
Anderson, CA 96007
(530) 365-6106
FAX (530) 365-5129
NOTES:

2. Final product shall be reinforced with #4 and #5 rebar grid.

3. Product is cast in 1-piece with no assembly required.

4. Hairline cracks may develop over time. These are not structural failures, but inherent characteristics of the material itself.

5. Air pockets are a common occurrence in precast products.

The frequency and size of air pockets are variable and to be expected, especially on vertical surfaces.

6. Concrete corners and edges will chip if not handled according to guidelines. Patch kits are available but may or may not blend and can be variable.

7. There is a level of care and maintenance associated with your product and is the responsibility of the end user. Choosing the right sealer can help minimize those costs.

WEIGHT: 1500 LBS.

TEXTURE: Light Sandblast
COLOR: ODC Tan
SEALER: Nano Tech Barrier
CUSTOMER APPROVAL x________________________________________ 21 in
33 in

RECYCLE

RECYCLE
TRASH
TRASH
39 in
21 in
39 in
33 in
6 in
2 in
7 in
39 in
3 1/2 in 6 in
3 1/2 in
2 1/2 in
21 in
3 1/2 in
33 in
Steel lid, powdercoated
Color “Recycle Blue”
GR1372-BL01
(2) “Recycle” decals applied
to lid, white vinyl
9" dia. deposit hole
Steel lid, powdercoated
Color “Bronze”
GR1372-BR340
(2) “Recycle” decals applied
to lid, white vinyl
9" dia. deposit hole
Unit to be light sandblast
EXCEPT logo and area around logo
(1) Rectangle area around logo, cast in.

Artwork at face of unit, painted black and tan
Size: 26" x 18"
Logo on this side of receptacle
*Unit includes (2) Plastic Liners: SQT29
*Paint colors:

Black
Tan: PPG 1090-6 Allegro
Liners
Recommended to secure trash
receptacle to concrete
slab with construction epoxy.

Threaded steel
inserts for attaching
lid retaining cable 1/2" Radius on edges
259
260
Contract No.
1 CITY OF PALM DESERT

GOODS AND EQUIPMENT PURCHASE AGREEMENT
This Goods and Equipment Purchase Agreement (“Agreement”) is entered into this 22ND day of AUGUST, 2024, by and between the City of Palm Desert (“City”), and OUTDOOR CREATIONS, INC., a CORPORATION, with its principal place of business at 2270 BARNEY ROAD, ANDERSON, CA 96007 (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

Section 1. DEFINITIONS/COOPERATIVE PROCUREMENT.

A. Definitions.

1. “Goods” means all machinery, equipment, supplies, items, parts, materials, labor, or other services, including design, engineering, and installation services, provided by Supplier as specified in Exhibit “A,” attached hereto and incorporated herein by reference.

2. “Delivery Date(s)” means that date or dates upon which the Goods is to be delivered to the City, ready for approval, testing and/or use as specified in Exhibit “B.” B. Cooperative Procurement. This Agreement is entered into pursuant to City of Palm Desert Municipal Code section 3.30.160, which authorizes participation with other governmental agencies who have, through a bidding process, determined to award or purchase goods and/or services from Supplier.

1. Program. The purchase has been made through a REQUEST FOR QUOTES, a program for the procurement of goods and services for governmental agencies.

Documents related to the procurement of this Agreement shall be made available to City upon request.

2. Reserved.

Section 2. MATERIALS AND WORKMANSHIP.

When Exhibit “A” specifies machinery, equipment or material by manufacturer, model or trade name, no substitution will be made without the City’s written approval. Machinery, equipment or material installed in the Goods without the approval required by this 0 will be deemed to be defective material for purposes of 0. Where machinery, equipment or materials are referred to in Exhibit “A” as equal to any particular standard, the City will decide the question of equality. When requested by the City, Supplier will furnish the City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipment and material to be incorporated in the Goods.

Material samples will be submitted at the City’s request.

Section 3. INSPECTIONS AND TESTS.

The City shall have the right to inspect and/or test the Goods prior to acceptance. If upon inspection or testing the Goods or any portion thereof are found to be nonconforming, unsatisfactory, defective, of inferior quality or workmanship, or fail to meet any requirements or specifications contained in Exhibit “A,” then without prejudice to any other rights or remedies, the City may reject the Goods or exercise any of its rights under C. The inspection, failure to make 261
Contract No.
2 inspection, acceptance of goods, or payment for goods shall not impair the City’s right to reject nonconforming goods, irrespective of the City’s failure to notify Supplier of a rejection of nonconforming goods or revocation of acceptance thereof or to specify with particularity any defect in nonconforming goods after rejection or acceptance thereof.

Section 4. WARRANTY.

A. Supplier warrants that the Goods will be of merchantable quality and free from defects in design, engineering, material, and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s warranty or as agreed to by Supplier and City, from the date of final written acceptance of the Goods by the City as required for final payment under

0. Supplier further warrants that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.

B. Supplier further warrants that all machinery, equipment, or process included in the Goods will meet the performance requirements and specifications specified in Exhibit “A” and shall be fit for the purpose intended. The City’s inspection, testing, approval, or acceptance of any such machinery, equipment, or process will not relieve Supplier of its obligations under this B.

C. For any breach of the warranties contained in A and B, Supplier will, immediately after receiving notice from the City, at the option of the City, and at Supplier’s own expense and without cost to the City:

1. Repair the defective Goods;

2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or

3. Repay to City the purchase price of the defective Goods.

If City selects repair or replacement, any defects will be remedied without cost to the City, including but not limited to, the costs of removal, repair, and replacement of the defective Goods, and reinstallation of new Goods. All such defective Goods that is so remedied will be similarly warranted as stated above. In addition, Supplier will repair or replace other items of the Goods which may have been damaged by such defects or the repairing of the same, all at its own expense and without cost to the City.

D. Supplier also warrants that the Goods is free and clear of all liens and encumbrances whatsoever, that Supplier has a good and marketable title to same, and that Supplier owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Supplier agrees to indemnify, defend, and hold the City and their officials, officers, employees, volunteers, representatives, and agents harmless against any and all third-party claims resulting from the breach or inaccuracy of any of the foregoing warranties.

E. In the event of a breach by Supplier of its obligations under this 0, the City will not be limited to the remedies set forth in this 0, but will have all the rights and remedies permitted by applicable law, including without limitation, all of the rights and remedies afforded to the City under the California Commercial Code.
262
Contract No.
3 Section 5. PRICES.

Unless expressly provided otherwise, all prices and fees specified in Exhibit “C,” attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by the City’s authorized representative. The total price shall include (i) all federal, state, and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to the City hereunder; and (ii) all charges for packing, freight and transportation to destination.

Section 6. CHANGES.

City, at any time, by a written order, and without notice to any surety, may make changes in the Goods, including but not limited to, City’s requirements and specifications. If such changes affect the cost of the Goods or time required for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such change will be agreed upon between the City and Supplier and such change will be authorized by a change order document signed by the City and accepted by Supplier.

Section 7. PAYMENTS.

A. Terms of payment, are net thirty (30) days, less any applicable retention, after receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be made by City after Supplier has satisfied all contractual requirements. Payment of invoices shall not constitute acceptance of Goods.

B. If Progress Milestones have been specified in Exhibit “B,” then payments for the Goods will be made as the requirements of such Progress Milestones are met. Progress payments for the Goods will be made by City upon proper application by Supplier during the progress of the Goods and according to the terms of payment as specified in Exhibit “B.” Supplier’s progress billing invoice will include progress payments due for the original scope of work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be itemized on the invoice. Invoices for cost plus work, whether part of Exhibit “B” or a change order, must have subcontractor and/or supplier invoices attached to Supplier’s invoice. Other format and support documents for invoices will be determined by the City in advance of the first invoice cycle.

C. Payments otherwise due may be withheld by the City on account of defective Goods not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, failure of Supplier to make payments properly to its subcontractors or for material or labor, the failure of Supplier to perform any of its other obligations under the Agreement, or to protect the City against any liability arising out of Supplier’s failure to pay or discharge taxes or other obligations. If the causes for which payment is withheld are removed, the withheld payments will be made promptly. If the said causes are not removed within a reasonable period after written notice, the City may remove them at Supplier’s expense.

D. Payment of the final Progress Milestone payment or any retention will be made by City upon:

1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;
263
Contract No.
4 2. Written acceptance of the Goods by the City;

3. Delivery of all drawings and specifications, if required by City;

4. Delivery of executed full releases of any and all liens arising out of this Agreement; and

5. Delivery of an affidavit listing all persons who might otherwise be entitled to file, claim, or maintain a lien of any kind or character, and containing an averment that all of the said persons have been paid in full.

If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond satisfactory to the City to indemnify City against any claim or lien at no cost to the City.

E. Acceptance by Supplier of payment of the final Progress Milestone payment pursuant to D will constitute a waiver, release and discharge of any and all claims and demands of any kind or character which Supplier then has, or can subsequently acquire against the City, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement. However, payment for the final Progress Milestone by City will not constitute a waiver, release or discharge of any claims or demands which City then has, or can subsequently acquire, against Supplier, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement.

Section 8. SCHEDULE FOR DELIVERY.

A. The time of Supplier’s performance is of the essence for this Agreement. The Goods will be delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately notify the City in writing any time delivery is behind schedule or may not be completed on schedule. In addition to any other rights the City may have under this Agreement or at law, Supplier shall pay City the sum of $250.00 per item of Goods for each calendar day for which the item of Goods is unavailable beyond the scheduled delivery date(s) specified in Exhibit “B.” B. In the event that the Goods is part of a larger project or projects that require the coordination of multiple contractors or suppliers, then Supplier will fully cooperate in scheduling the delivery so that the City can maximize the efficient completion of such project(s).

Section 9. TAXES.

A. Supplier agrees to timely pay all sales and use tax (including any value added or gross receipts tax imposed similar to a sales and use tax) imposed by any federal, state or local taxing authority on the ultimate purchase price of the Goods provided under this Agreement.

B. Supplier will withhold, and require its subcontractors, where applicable, to withhold all required taxes and contributions of any federal, state, or local taxing authority which is measured by wages, salaries or other remuneration of its employees or the employees of its subcontractors. Supplier will deposit, or cause to be deposited, in a timely manner with the appropriate taxing authorities all amounts required to be withheld.

C. All other taxes, however denominated or measured, imposed upon the price of the Goods provided hereunder, will be the responsibility of Supplier. In addition, all taxes assessed by any taxing jurisdiction based on Supplier property used or consumed in the provision of the 264
Contract No.
5 Goods such as and including ad valorem, use, personal property and inventory taxes will be the responsibility of Supplier.

D. Supplier will, upon written request, submit to the City written evidence of any filings or payments of all taxes required to be paid by Supplier hereunder.

Section 10. INDEPENDENT CONTRACTOR.

Supplier enters into this Agreement as an independent contractor and not as an employee of the City. Supplier shall have no power or authority by this Agreement to bind the City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Supplier are employees, agents, contractors or subcontractors of the Supplier and not of the City. The City shall not be obligated in any way to pay any wage claims or other claims made against Supplier by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.

Section 11. SUBCONTRACTS.

Unless otherwise specified, Supplier must obtain City’s written permission before subcontracting any portion of the Goods. Except for the insurance requirements in A, all subcontracts and orders for the purchase or rental of supplies, materials or equipment, or any other part of the Goods, will require that the subcontractor be bound by and subject to all of the terms and conditions of the Agreement. No subcontract or order will relieve Supplier from its obligations to the City, including, but not limited to Supplier’s insurance and indemnification obligations. No subcontract or order will bind City.

Section 12. TITLE AND RISK OF LOSS.

Unless otherwise agreed, the City will have title to, and risk of loss of, all completed and partially completed portions of the Goods upon delivery, as well as materials delivered to and stored on City property which are intended to become a part of the Goods. However, Supplier will be liable for any loss or damage to the Goods and/or the materials caused by Supplier or its subcontractors, their agents or employees, and Supplier will replace or repair said Goods or materials at its own cost to the complete satisfaction of the City. Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods which remains in the possession of Supplier, then the City shall have title to, and the right to take possession of, such Goods at any time following payment therefor. Risk of loss for any Goods which remains in the possession of Supplier shall remain with Supplier until such Goods has been delivered or City has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property used in the construction of the Goods but which does not become a part of the Goods.

Section 13. INDEMNIFICATION.

A. Supplier shall defend, indemnify and hold the City of Palm Desert (“City”), and their officials, officers, employees, volunteers, representatives and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence or willful misconduct of Supplier, its officials, officers, employees, agents, subcontractors and subconsultants arising out of or in connection with the Goods or the performance of this Agreement, including without limitation the payment of 265
Contract No.
6 all damages and attorneys’ fees and other related costs and expenses except such loss or damage which was caused by the sole negligence or willful misconduct of the City.

B. Supplier’s defense obligation for any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, and their officials, officers, employees, agents, representatives or volunteers shall be at Supplier’s own cost, expense, and risk. Supplier shall pay and satisfy any judgment, award, or decree that may be rendered against the City or its officials, officers, employees, agents, representatives or volunteers, in any such suit, action, or other legal proceeding. Supplier shall reimburse the City and their officials, officers, employees, agents, representatives and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.

C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, and their officials, officers, employees, agents, representatives or volunteers.

Section 14. INSURANCE.

A. General. Supplier shall take out and maintain:

1. Commercial General Liability Insurance, of at least $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01;

2. Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, of at least $1,000,000 per accident for bodily injury and property damage, at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto);

3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and

4. Pollution Liability Insurance. RESERVED.
.

5. If Supplier is also the manufacturer of any equipment included in the Goods, Supplier shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.

B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage.

The policies required under this Section shall give the City, and their officials, officers, employees, agents, representatives, or volunteers additional insured status. Such policies shall contain a provision stating that Supplier’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City, or any additional insureds shall not be called upon to contribute to any loss and shall contain or be endorsed with a waiver of subrogation in favor of the City, and their officials, officers, employees, agents, representatives, and volunteers. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available 266
Contract No.
7 coverage shall be provided to the parties required to be named as additional insured pursuant to this Agreement.

C. Insurance Carrier. All insurance required under this Section is to be placed with insurers with a current A.M. Best’s rating no less than A-:VII, licensed to do business in California, and satisfactory to the City.

D. Evidence of Insurance. Supplier shall furnish the City with original certificates of insurance and endorsements effecting coverage required by the Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

E. Subcontractors. All subcontractors shall meet the requirements of this Section before commencing work. In addition, Supplier shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.

F. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.

Section 15. LIENS.

A. Supplier, subcontractors and any other suppliers will not make, file or maintain a mechanic’s or other lien or claim of any kind or character against the Goods, for or on account of any labor, materials, fixtures, tools, machinery, equipment, or any other things furnished, or any other work done or performance given under, arising out of, or in any manner connected with the Agreement (such liens or claims referred to as “Claims”); and Supplier, subcontractor and any other suppliers expressly waive and relinquish any and all rights which they now have, or may subsequently acquire, to file or maintain any Claim and Supplier, subcontractor and any other suppliers agree that this provision waiving the right of Claims will be an independent covenant.

B. Supplier will save and hold City harmless from and against any and all Claims that may be filed by a subcontractor, supplier or any other person or entity and Supplier will, at its own expense, defend any and all actions based upon such Claims and will pay all charges of attorneys and all costs and other expenses arising from such Claims.

Section 16. TERMINATION OF AGREEMENT BY CITY.

A. Should Supplier at any time refuse or fail to deliver the Goods with promptness and diligence, or to perform any of its other obligations under the Agreement, the City may terminate Supplier’s right to proceed with the delivery of the Goods by written notice to Supplier.

In such event the City may obtain the Goods by whatever method it may deem expedient, including the hiring of another contractor or other contractors and, for that purpose, may take possession of all materials, machinery, equipment, tools and appliances and exercise all rights, options and privileges of Supplier. In such case Supplier will not be entitled to receive any further payments until the Goods is delivered. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Agreement, Supplier will be liable for and will pay the difference to City. 267
Contract No.
8 B. City may, for its own convenience, terminate Supplier’s right to proceed with the delivery of any portion or all of the Goods by written notice to Supplier. Such termination will be effective in the manner specified in such notice, will be without prejudice to any claims which the City may have against Supplier, and will not affect the obligations and duties of Supplier under the Agreement with respect to portions of the Goods not terminated.

C. On receipt of notice under B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,

1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,

2. Unless otherwise directed by the City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and

3. Deliver only such portions of the Goods which the City deems necessary to preserve and protect those portions of the Goods already in progress and to protect material, plant and equipment at the Goods site or in transit to the Goods site.

D. Upon termination pursuant to B, Supplier will be paid a pro rata portion of the compensation in the Agreement for any portion of the terminated Goods already delivered, including material and services for which it has made firm contracts which are not canceled, it being understood that the City will be entitled to such material and services. Upon determination of the amount of said pro rata compensation, City will promptly pay such amount to Supplier upon delivery by Supplier of the releases of liens and affidavit, pursuant to C.

Section 17. FORCE MAJEURE
A. Supplier shall not be held responsible for failure or delay in shipping nor City for failure or delay in accepting goods described herein if such failure or delay is due to a Force Majeure Event.

B. 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 occurring at the project site; (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 work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Supplier and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. 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 the City in its capacity as a municipal authority.

C. In the event of any such excused interference with shipments, the City shall have the option either to reduce the quantity provided for in the order accordingly or to exercise its right of cancellation as set forth in this Agreement.
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Contract No.
9 Section 18. MISCELLANEOUS PROVISIONS.

A. 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:

CITY:

City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attn: Shawn Muir, Community Services
Manager
SUPPLIER:

OUTDOOR CREATIONS, INC.
2270 BARNEY ROAD
ANDERSON, CA 96007
Attn: TIM L. HUDSON
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.

B. Assignment or Transfer. Supplier shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of the City, which will not be unreasonably withheld. Provided, however, that claims for money due or to become due Supplier from the City under this Agreement may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.

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

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

E. 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.

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

G. Attorneys’ Fees and Costs. If any action in law or equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each Party shall pay its own attorneys’ fees.

H. Interpretation. 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. 269
Contract No.
10 I. No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.

J. Authority to Enter 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.

K. 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.

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

M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.

N. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relative to the Goods specified herein. There are no understandings, agreements, conditions, representations, warranties or promises with respect to this Agreement, except those contained in or referred to in the writing.
[SIGNATURES ON FOLLOWING PAGE]
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Contract No.
11 ___

SIGNATURE PAGE TO GOODS AND EQUIPMENT PURCHASE AGREEMENT

BETWEEN THE CITY OF PALM DESERT
AND OUTDOOR CREATIONS, INC.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.

CITY OF PALM DESERT
By:

L. Todd Hileman
City Manager
OUTDOOR CREATIONS, INC., A

CORPORATION
By:

Its:

Attest:

By:

Anthony J. Mejia
City Clerk
General Manager
Printed Name:

Ken Nichols
By:

Its:

Regional Manager
Printed Name:

Nathan Packer
Approved as to form:

By:

Best Best & Krieger LLP
City Attorney
QC:

Insurance:

Initial Review
Final Approval
271
Contract No.
12 Exhibit A
Goods Specifications
The Vendor will furnish all materials, renderings, equipment, tools, removal, installation, labor, coordination, permits, supervision, freight, and incidentals (including tax) as necessary to perform and complete the project pursuant to the Request for Vendor Quotes and the Agreement. The following is a non-inclusive description of the project work and/or goods to be provided. • Quantity: 35
Custom Block Leg 18" x 18" x 78" Flat Bench with Skate Deterrents and Reveal at Top.

Cast In Logo - City of Palm Desert Logo Painted, Black & Tan on one side of bench, Medium Sandblast, Nano coating, Light Gray, tax and shipping • Quantity: 35
Custom 39" W x 33" T x 21 D Dual open top waste container. Reveal at 6" from Top. 7" wide slots on bottom for lifting purposes- 2 Liners included - SQT29 Cast In Logo - 26" x 18" City of Palm Desert Logo Painted Black & Tan on one side of unit Custom Lid - Powdercoated Recycle Blue with (2) RECYCLE Stickers - 9" Deposit Hole Custom Lid - Powdercoated Bronze with (2) TRASH Stickers - 9" Deposit Hole Light Sandblast, Nano coating, Light Gray, tax and shipping 272
Contract No.
13 Exhibit B
Delivery Schedule
Manufacturer estimates an 18-week production schedule. Delivery will be scheduled upon completion of production.
273
Contract No.
14 Exhibit C
Fee Schedule
Line Item Description Quantity Unit of
Measure
Unit Cost Total
1 Benches 35 each $2,368.00 $82,880.00
Shipping $6,125.00
Salex Tax $6,897.89
2 Waste Container 35 each $2,906.00 $101,710.00
Shipping $6,125.00
Sales Tax $8,357.21
TOTAL $212,095.10
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Jess Culpeper, Director of Capital Projects SUBJECT: AUTHORIZE OUT-OF-STATE TRAVEL FOR TWO PROJECT MANAGERS

TO ATTEND THE AMERICAN PUBLIC WORKS ASSOCIATION

CONFERENCE IN ATLANTA, GEORGIA
RECOMMENDATION:

Authorize out-of-state travel for two project managers to attend the American Public Works Association Conference on September 8 -11, 2024, in Atlanta, Georgia.

BACKGROUND/ANALYSIS:

On June 27, 2024, the City Council approved the FY 2024-25 Annual Budget including Out-ofState Travel requests, with authorization for the Director of Capital Projects and a project manager to attend the American Public Works Association (APWA) Conference from September 8 - 11, 2024.

Due to scheduling conflicts, the Director of Capital Projects is no longer able to attend the conference and would like to request that a second project manager attend in his place.

Legal Review:

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

FINANCIAL IMPACT:

Funds are available in account number 1104134-4312000 for this purpose. There is no additional impact to the General Fund.
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Anthonette Castro, Administrative Assistant I REQUEST: RESOLUTION TO AUTHORIZE DESTRUCTION OF OBSOLETE

RECORDS FROM DEVELOPMENT SERVICES DEPARTMENT, CODE

COMPLIANCE DIVISION
RECOMMENDATION:

Adopt a resolution entitled “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

DESERT, CALIFORNIA, SETTING FORTH ITS FINDINGS AND AUTHORIZING THE DESTRUCTION OF PAPER RECORDS FROM THE DEVELOPMENT SERVICES – CODE

COMPLIANCE DIVISION, AS INDICATED ON THE RECORDS RETENTION SCHEDULE (ADOPTED DECEMBER 15, 2022); RECORDS FROM 2017 THROUGH 2019 (EXHIBIT A).” BACKGROUND/ANALYSIS:

Government Code Section 34090 permits the destruction of City records with the written consent of the City Attorney and approval of the City Council. The City’s records retention program, adopted on December 15, 2022, by Resolution No. 2022-98, establishes retention periods for all City records and provides for the systematic destruction of obsolete records.

In accordance with the Retention Program, attached is Exhibit “A” the Records Destruction Certificate, which lists the records submitted for destruction. The Certificate will be reviewed and signed by the City Attorney as well as the City Clerk prior to destruction of all records.

Legal Review:

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

FINANCIAL IMPACT:

Destroying obsolete records reduces the costs associated with offsite document storage and records management.

ATTACHMENTS:

1. Resolution

2. Records Destruction Certificate-Exhibit “A”
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Form RS-2/2023
C:\Program Files\eSCRIBE\TEMP\1943025600\1943025600,,,01 Resolution Destruction of Obsolete Records.docx Monday, August 12, 2024 RESOLUTION NO. 2024-

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

CALIFORNIA, SETTING FORTH ITS FINDINGS AND AUTHORIZING THE

DESTRUCTION OF PAPER RECORDS FROM THE DEVELOPMENT
SERVICES – CODE COMPLIANCE DIVISION, AS INDICATED ON THE RECORDS RETENTION SCHEDULE (ADOPTED DECEMBER 15, 2022); RECORDS FROM 2017 THROUGH 2019 (EXHIBIT A)
WHEREAS, the Code Compliance Division of the City of Palm Desert, California, has records that have met or exceeded the retention period caused by the official files, records, exhibits, and other documents of said office pursuant to the Retention Schedule set forth on City Council Resolution No. 2022-98; and
WHEREAS, said files are not the subject of any claim, litigation, investigation, or audit.

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

Section 1. That the above recitations are true and correct and constitute the findings of the City Council in this matter.

Section 2. That it does hereby approve the destruction of all documents and records from files as set forth in Exhibit “A,” attached hereto, which have met or exceeded their retention period.

Section 3. That the Code Compliance Abandoned Vehicle Abatement Reports and Golf Cart applications listed in Exhibit A are not digitally imaged and have met or exceeded their retention period.

PASSED, APPROVED, AND ADOPTED at a regular meeting of the Palm Desert City Council held on this ______ day of ______, 2024, by the following vote, to wit:

ADOPTED ON _________, 2024.
____________________________

KARINA QUINTANILLA, MAYOR
ATTEST:
________________________________
ANTHONY J. MEJIA

CITY CLERK
279
RESOLUTION NO. 2024-
August 12, 2024

Page 2 of 2 ends

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
280
Citywide Records Management Policy Resolution No. 2022-71

EXHIBIT A

CITY OF PALM DESERT

AUTHORITY TO DESTROY OBSOLETE RECORDS
I consent to the destruction of these obsolete records according to accepted policies and procedures.

City Clerk Date City Attorney Date
Approved by City Council:

Original: City Clerk’s Office
Copy: Department
Dept. Retention
No.

Description
of Record
Years
Covered
Retention
Period
Shred or
Discard
CODE CE-001
Abandoned
Vehicle
Abatement
Reports
2011-
2018 5 years Shred
CODE CE-010 Golf Cart
Applications
2013-
2018 5 years Shred
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Celina Cabrera, Management Analyst
SUBJECT: FIRST AMENDMENT TO GERALD FORD APARTMENTS, LP HOUSING AGREEMENT TO DELINEATE THE NUMBER OF 2-BEDROOM AND 3-

BEDROOM UNITS
RECOMMENDATION:

1. Approve Amendment No. 1 by and between the City of Palm Desert and Gerald Ford Apartments, a California Limited Partnership (“Owner”), in accordance with the conditions of approval of the development of 150 units known as Gerald Ford Apartments, a multifamily rental housing projected located at 75580 Gerald Ford Drive, Palm Desert, California (“Project”).

2. Authorize the Mayor and/or City Manager to execute Amendment No. 1 and authorize the City Clerk to record Amendment No. 1.

BACKGROUND/ANALYSIS:

On December 15, 2022, the City Council approved a Housing Agreement with the Owner for the development of 150 total units consisting of 149 affordable housing units and one management unit. This amendment is to correct the delineation of 2-bedroom and 3-bedroom units that are to be constructed. Amendment No. 1 complies with the project approval the Planning Commission completed on June 7, 2022.

The below table shows the number of units in each bedroom size under the current housing agreement and the change Amendment No 1 would impose.

Units Executed Agreement Amendment No. 1
2-Bedroom 111 Units 110 Units
3-Bedroom 38 Units 39 Units
Total Units 149 Units 149 Units
Legal Review:

This report has been reviewed by the City Attorney’s office. Jim G. Greyson, of Richard Watson Greshon, created and provided the attached Amendment No 1.

FINANCIAL IMPACT:

There is no fiscal impact on the City resulting from the approval of Amendment No. 1.

ATTACHMENTS:

1. Housing Agreement

2. Amendment No. 1
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285
286
287
288
289
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293
294
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297
298
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301
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:

City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
Attn: City Clerk
with a copy to:

Richards, Watson & Gershon
355 S. Grand Ave., 40th Floor
Los Angeles, CA 90071
Attn: Jim G. Grayson, Esq.

Space Above This Line For Recorder’s Use
This First Amendment to Housing Agreement is recorded for the benefit of the City of Palm Desert and is exempt from Recording Fees pursuant to Sections 6103, 27383 and 27388.1 of the California Government Code.

FIRST AMENDMENT TO HOUSING AGREEMENT
THIS FIRST AMENDMENT TO HOUSING AGREEMENT (this “Amendment”) is made and entered into on _________, 2024, by and between the CITY OF PALM DESERT a municipal corporation (the “City”), and GERALD FORD APARTMENTS, LP, a California limited partnership (the “Owner”), with reference to the following facts:

WHEREAS, the City entered into a Housing Agreement, dated as of December 15, 2022, and recorded on March 9, 2023 as Instrument No. 2023-0069373 in the Official Records of Riverside County, California, and pertaining to that certain property described in Exhibit A attached hereto, (the “Agreement”);
WHEREAS, the table contained in the Agreement describing the number of bedrooms included within the Affordable Units contains an error and the City and the Owner desire to correct such error by amending the Agreement on the terms and conditions hereof; and NOW, THEREFORE, in consideration of the foregoing, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. All capitalized terms not herein defined shall have the meanings ascribed thereto in the Agreement.

2. The table describing the number of bedrooms contained in the Affordable Units and contained in the definition of “Affordable Unit” within Article 1, Section 1.1 of the Agreement is hereby deleted and replaced with the following:
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3. Section 2.1 of the Agreement is amended in its entirety to read as follows:

The Owner shall develop and construct the Apartment Community in conformity with City Council Resolution No. 05-104 and Resolution No. 05-105, City Council Ordinance No. 1102, and Planning Commission Resolution 2813. Thereafter, during the Required Covenant Period, the Owner agrees that not less than one hundred forty-nine (149) units in the Apartment Community shall be Affordable Units under this Agreement, meaning that such units shall be continually available to and occupied by, or held vacant for occupancy only by Low Income Households and Very Low Income Households. One (1) of the two (2) bedroom units in the Apartment Community shall be dedicated for use by an on-site manager.

All of the units in the Apartment Community shall be similarly constructed and all of the Affordable Units shall be generally constructed at the same time. At the time of initial construction, the Affordable Units shall be of comparable quality to similar apartment projects within the City which contain income restricted units. The Owner agrees that, to the extent commercially reasonable, Affordable Units will not be underutilized. No persons shall be permitted to occupy any Affordable Unit in excess of the applicable limit of maximum occupancy set by the City’s Municipal Code and the laws of the State of California.

4. Except as otherwise modified herein, the terms and provisions of the Agreement shall remain unchanged and are hereby ratified and confirmed.

5. This Amendment shall be governed by, and construed in accordance with, the laws of the State of California.

6. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. [Remainder of this page intentionally left blank]
[Signatures appear on the following page]
Bedroom Size Very Low Income
Household Units
Low Income
Household Units
Two (2) Bedrooms 18 92
Three (3) Bedrooms 12 27
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.

OWNER:

GERALD FORD APARTMENTS, LP,
a California limited partnership
By: WNG Palm Desert LP,
a California limited partnership,
its administrative general partner
By: Western National Investments,
a California corporation,
its general partner
By:

Name: Jeffrey R. Scott
Title: Chief Financial Officer
By: Hearthstone CA Properties IV, LLC,
a California limited liability company,
its managing general partner
By: Hearthstone Housing Foundation,
a California nonprofit public benefit corporation,
its sole member and manager
By:

Name: Socorro Vasquez
Title: Executive Director
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CITY:

CITY OF PALM DESERT,
a municipal corporation
By:

Name: Karina Quintanella
Title: Mayor
ATTEST:

Anthony J. Mejia, City Clerk

ACKNOWLEDGMENT, CONSENT AND AFFIRMATION
is the maker of a [construction/permit loan] (the “Loan”) to the Owner with respect to and secured by the Apartment Community, and hereby acknowledges and consents to the foregoing Amendment, and affirms that the Amendment will not result in the subordination of the Agreement to the lien securing the Loan.

Date: , 2024 ,
a
By:

Name:

Title:

By:

Name:

Title:
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CALIFORNIA ALL-PURPOSE 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 RIVERSIDE
On before me, ________________________________________ Notary Public, personally appeared Karina Quitanella , 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.

Place Notary Seal Above
Signature of Notary Public
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STATE OF CALIFORNIA

COUNTY OF RIVERSIDE
On before me, ________________________________________ Notary Public, personally appeared Anthony J. Mejia , 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.

Place Notary Seal Above
Signature of Notary Public
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STATE OF CALIFORNIA

COUNTY OF RIVERSIDE
On 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.

Place Notary Seal Above
Signature of Notary Public
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STATE OF CALIFORNIA

COUNTY OF
On 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.

Place Notary Seal Above
Signature of Notary Public
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STATE OF CALIFORNIA

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.

Place Notary Seal Above
Signature of Notary Public
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EXHIBIT A

LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Palm Desert, County of Riverside, State of California, described as follows:

PARCEL A
PARCEL 1 AS DEPICTED ON EXHIBIT "B" ATTACHED TO THAT CERTAIN PARCEL MAP WAIVER FOR LOT LINE ADJUSTMENT NO, 17-49 RECORDED AUGUST 24, 2017 AS INSTRUMENT NO. 2017-0353036 AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:

ALL OF LOT 14, AND A PORTION OF LOT 13 OF TRACT MAP NO. 33837-1, IN THE CITY

OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 402, PAGES 4 THROUGH 8, INCLUSIVE, OF MAPS, IN THE

OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:

COMMENCING AT THE SOUTHEASTERLY TERMINUS OF THAT CERTAIN COURSE ALONG THE SOUTHWESTERLY LINE OF SAID LOT 13, DESCRIBED AS HAVING A BEARING AND DISTANCE OF NORTH 18°22'25 WEST 343.90 FEET ON SAID TRACT MAP;
THENCE ALONG SAID SOUTHWESTERLY LINE NORTH 18°22'25" WEST 100.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID SOUTHWESTERLY LINE NORTH 71°1 0'24" EAST 178.56 FEET; THENCE NORTH 89°59'24" EAST 149.94 FEET TO THE GENERAL EASTERLY LINE OF SAID LOT 13;

THENCE ALONG SAID GENERAL EASTERLY LINE, AND THE NORTHEASTERLY AND NORTHWESTERLY LINES OF SAID LOT 13, THE FOLLOWING EIGHT (8) COURSES:

NORTH 00°00'00" EAST 171.95 FEET, NORTH 90°00'00" EAST 43.50 FEET, NORTH 00°00'00" EAST 113.00 FEET, NORTH 90°00'00" EAST 61.05 FEET, NORTH 00°00'00" EAST

55.95 FEET, NORTH 35°28'02" EAST 298.62 FEET, NORTH 54°31'58" WEST 358.33 FEET, AND SOUTH 35°28'02" WEST 210.39 FEET TO THE MOST NORTHERLY CORNER OF SAID LOT 14;

THENCE ALONG THE NORTHWESTERLY AND SOUTHWESTERLY LINES OF SAID LOT 14 AND SAID SOUTHWESTERLY LINE OF SAID LOT 13, THE FOLLOWING THREE (3) COURSES:
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CONTINUING SOUTH 35°28'02" WEST 480.04 FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 1055.00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS NORTH 70°25'44" EAST; THENCE SOUTHEASTERLY 22.05 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 01°11'51";
THENCE SOUTH 18022125" EAST 280.82 FEET TO THE TRUE POINT OF BEGINNING.

PARCEL B

NONEXCLUSIVE DRAINAGE EASEMENTS AS SET FORTH IN THAT CERTAIN "DECLARATION OF COVENANTS REGARDING DRAINAGE OF SURFACE WATERS AND GRANT OF DRAINAGE EASEMENTS (SPANISH WALK)" RECORDED MAY 10, 2006 AS INSTRUMENT NO. 2006-0340313 OF OFFICIAL RECORDS.

APN(S): 694-520-019 as to a Portion of said land
694-520-020 as to a Portion of said land
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Bassam AL-Beitawi, Senior Project Manager
SUBJECT: AWARD A CONTRACT TO PAVEWEST, INC., FOR THE PARKING LOT REHABILITATION AND MAINTENANCE PROGRAM (PROJECT NO.

MPL00002)
RECOMMENDATION:

1. Award a contract to PaveWest, Inc., for the Parking Lot Rehabilitation and Maintenance Program in an amount not to exceed $368,000 for the first year and $500,000 annually thereafter for a one-year term with four one-year extensions.

2. Appropriate $97,742 from Presidents’ Plaza III – Parking Lot Maintenance Reserve Fund to Account No. 2824373-4332100.

3. Authorize the City Attorney to make any necessary non-monetary changes to the agreement.

4. Authorize the City Manager to execute the agreement, any documents necessary to effectuate the actions taken herewith, and approve written contract amendment and change order requests for unanticipated conditions per Section 3.30.170 of the Palm Desert Municipal Code.

BACKGROUND/ANALYSIS:

To maintain the safety and functionality of City-owned and managed parking lots, the City of Palm Desert (City) annually contracts for asphalt repairs, sealcoat, re-striping and other tasks.

As part of this commitment, on June 17, 2024, the City released a Request for Proposal (RFP) for the On-Call Parking Lot Maintenance Program (Program). This scope of work covers the larger sites listed below and may also extend to include smaller areas.  Civic Center Park  Ironwood Park
 Corporation Yard  Joe Mann Park
 Entrada del Paseo  Magnesia Falls Park
 Desert Willow  Presidents Plaza I-II
 Freedom Park  Presidents Plaza III
 Hovley Soccer Park  San Pablo Corridor
While past maintenance has been conducted on a project basis annually, City staff recommends moving forward on an on-call basis to provide greater flexibility and efficiency.

The City received three proposals by the deadline of July 17, 2024. The proposals were reviewed for clarity and conformance with the guidelines, content of the proposal, experience and performance, comments by references, and fee proposal (range of costs). The companies submitting proposals include:
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ADA Parking Lot Rehab and Maintenance Program

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Company Location
NGP, Inc. Perris, CA
PaveWest, Inc. Artesia, CA
We R Builders, Inc. Glendale, CA
A Selection Committee comprising of three staff members from the Public Works Department reviewed the proposals. Following an evaluation, the Committee proposes awarding a contract to PaveWest, Inc., (Contractor) for on-call services.

The Contractor also demonstrated conformance with the RFP by providing the content, including the format identified in the RFP. Furthermore, they provided the most competitive pricing, offering rates that were favorable when compared to other vendors. Almost all of the Contractor’s line items for seal coating, which constitutes the majority of the scope of work, were priced lower than those of the other two vendors. In addition, their firm staffing and key personnel have over 25 years of experience each in this field. Lastly, staff conducted a reference check on the Contractor, receiving commendable feedback on their past performance, including their responsiveness, work quality, and communication with their clients.

Legal Review:

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

FINANCIAL IMPACT:

The approved Capital Improvement Project (CIP) List for Fiscal Year 2024/25 includes $368,000 in Year 1 and $500,000 thereafter annually for year two through year five for Parking Lot Rehabilitation and Maintenance. Staff request an appropriation of $97,742 to Account No. 2824373-43321000 in order to include the Presidents Plaza III Parking Lot.

The table below notes the budget for Fiscal Year 2024-25:

Project Account Budget Expenses Appropriation
Requested
Parking Lot Rehabilitation &
Maintenance 1104313-4332000 $368,000 $368,000
Presidents Plaza III Parking Lot
Rehabilitation 2824373-4332100 $0.00 $97,742
Total $368,000 $465,742 ($97,742)
ATTACHMENTS:

1. Agreement

2. Payment and Performance Bonds

3. Proposal
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CITY OF PALM DESERT

MAINTENANCE SERVICES AGREEMENT

1. Parties and Date. This Agreement is made and entered into this 22nd day of August 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 PaveWest, a Corporation, with its principal place of business at 11700 166th Street, Artesia, CA 90701 ("Vendor"). The City and Vendor are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. Recitals.

2.1 Contractor.

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

Contractor represents that it is experienced in providing maintenance services to public clients, that it and its subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of City. Contractor shall not subcontract any portion of the work 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.

2.2 Project.

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

On-Call Parking Lot Rehabilitation and Maintenance Program Project No. MPL00002
(hereinafter referred to as “the Project”).

3. Terms.

3.1 Scope of Services and Term.

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

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

3.1.2 Term. The term of this Agreement shall be from August 22, 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 four additional one-year terms. Contractor shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Responsibilities of Contractor.

3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the 339
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means, methods, and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee.

Any personnel performing the Services under this Agreement on behalf of Contractor shall not be employees of City and shall at all times be under Contractor’s exclusive direction and control.

Contractor 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. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.2.2 Schedule of Services. Contractor shall perform the Services in a prompt and timely manner in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. Upon request of City, Contractor 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 Contractor shall be subject to the approval of City.

3.2.4 City’s Representative. The City hereby designates BASSAM AL-BEITAWI, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement except for increasing compensation. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.2.5 Contractor’s Representative. Contractor hereby designates PAULINE DUVAL, or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct the Services, using his 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.

3.2.6 Coordination of Services. Contractor 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.

3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees, and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Contractor 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 Contractor’s failure to comply with the standard of care provided for herein.

Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat 340
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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 Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.2.8 Period of Performance. Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”).

Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.

3.2.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.

3.2.10 Laws and Regulations; Employee/Labor Certifications. Contractor 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, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor 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. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with.

3.2.10.1 Employment Eligibility; Contractor. Contractor 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 subsubconsultants to comply with the same. Contractor 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 Labor Certification. By its signature hereunder, Contractor 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 Workers’ 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.

3.2.10.3 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall comply with all relevant provisions of City’s Minority Business 341
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Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.2.10.4 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

3.2.10.5 Water Quality Management and Compliance. To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency and the State Water Resources Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor to penalties, fines, or additional regulatory requirements.

3.2.11 Insurance.

3.2.11.1 Minimum Requirements. Without limiting Contractor’s indemnification of City, and prior to commencement of the Services, Contractor 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. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. 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. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. The City’s Risk Manager 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) 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 342
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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:
(a) 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;
(b) Pay on behalf of wording as opposed to
reimbursement;
(c) Concurrency of effective dates with primary
policies; and
(d) Policies shall “follow form” to the underlying
primary policies.
(e) Insureds under primary policies shall also be
insureds under the umbrella or excess policies.
(D) Workers’ Compensation Insurance. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers, and representatives. (E) Fidelity Coverage. [RESERVED]
(F) Cyber Liability Insurance. [RESERVED]
(G) Pollution Liability Insurance. Environmental Impairment Liability Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to the City providing coverage for liability arising out of sudden, accidental, and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations”. The policy shall provide coverage for the hauling of waste from the Project site to the final disposal location, including non-owned disposal sites.

3.2.11.2 Other Provisions and Requirements.
(A) 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.
(B) 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, his/her agents, representatives, employees, or subconsultants. 343
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(C) 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.
(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 Contractor, or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel 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, and their respective agents, officials, employees, volunteers, and representatives, 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 officers, and their respective agents, officials, employees, volunteers, and representatives, and shall require similar written express waivers and insurance clauses from each of its subcontractors. (G) 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.
(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 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.
(I) Notice of Cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
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(J) Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability and cyber liability, policies shall provide or be endorsed to provide that the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers, and representatives, shall be additional insureds 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 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. (M) Pass Through Clause. Contractor agrees to ensure that its subconsultants, sub-contractors, and any other party involved with the Project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the Project will be submitted to City for review. (N) City’s Right to Revise Specifications. 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 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. (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. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(Q) 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.

3.2.12 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 345
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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.

3.2.13 Bonds.

3.2.13.1 Performance Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Performance Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.

3.2.13.2 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Payment Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.

3.2.13.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient, or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within ten (10) days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.

3.2.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.2.14 Accounting Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor 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. Contractor 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.
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3.2.15 Work Sites.

3.2.15.1 Inspection of Site. Contractor shall visit sites where Services are to be performed and shall become acquainted with all conditions affecting the Services prior to commencing the Services. Contractor shall make such examinations as it deems necessary to determine the condition of the work sites, its accessibility to materials, workmen and equipment, and to determine Contractor’s ability to protect existing surface and subsurface improvements.

No claim for allowances–time or money–will be allowed as to such matters after commencement of the Services.

3.2.15.2 Field Measurements. Contractor shall make field measurements, verify field conditions, and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract, including any plans, specifications, or scope of work before commencing Services. Errors, inconsistencies, or omissions discovered shall be reported to the City immediately and prior to performing any Services or altering the condition.

3.2.15.3 Hazardous Materials and Differing Conditions. Should Contractor encounter material reasonably believed to be polychlorinated biphenyl (PCB) or other toxic wastes, hazardous substances and hazardous materials as defined in California state or federal law at the site which have not been rendered harmless, the Contractor shall immediately stop work at the affected area and shall report the condition to the City in writing. The City shall contract for any services required to directly remove and/or abate PCBs, hazardous substances, other toxic wastes, and hazardous materials, and shall not require the Contractor to subcontract for such services. The Services in the affected area shall not thereafter be resumed except by written agreement of the City and Contractor.

3.2.16 Loss and Damage. Contractor shall be responsible for all loss and damage which may arise out of the nature of the Services agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Services until the same is fully completed and accepted by City.

3.2.17 Warranty. Contractor warrants all Services under the Agreement (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Agreement, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All 347
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warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

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 THREE HUNDRED SIXTY EIGHT THOUSAND Dollars ($386,000) for the first year and FIVE HUNDRED THOUSAND Dollars ($500,000) thereafter annually without written approval of the City Council or City Manager, as applicable.

3.3.2 Payment of Compensation. Contractor shall submit to City monthly invoices which provides a detailed description of the Services and hours rendered by Contractor. City shall, within thirty (30) days of receiving such statement, review the statement and pay all non-disputed and approved charges. Contractor shall submit its final invoice to City within thirty (30) days from the last date of provided Services or termination of this Agreement and failure by the Contractor to submit a timely invoice shall constitute a waiver of its right to final payment. Payment shall not constitute acceptance of any Services completed by Contractor. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.

3.3.3 Deductions. City may deduct or withhold, as applicable, from each progress payment an amount necessary to protect City from loss because of: (1) stop payment notices as allowed by state law; (2) unsatisfactory prosecution of the Services by Contractor; (3) sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Agreement; and (4) any other sums which the City is entitled to recover from Contractor under the terms of the Agreement or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City's right to such sums.

3.3.4 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.

3.3.5 Extra Work. At any time during the term of this Agreement, City may request that Contractor 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. Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.

3.3.6 Prevailing Wages. Contractor 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” 348
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projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor 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 Contractor’s principal place of business and at the Project site. Contractor shall defend, indemnify, and hold the City, its elected or appointed officers, and their respective agents, officials, employees, 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. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.3.7 Registration/DIR Compliance. If the Services are being performed as part of an applicable “public works” or “maintenance” project, and if the total compensation is $15,000 or more, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.

Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify, and hold the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers, and representatives free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.

3.4 Termination of Agreement.

3.4.1 Grounds for Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those Services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause.

3.4.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request. 349
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3.4.3 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.

3.5 General Provisions.

3.5.1 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:

Contractor: PAVEWEST, INC.
11700 166TH STREET
ARTESIA, CA 90701
ATTN: PAULINE DUVAL, PROJECT MANAGER
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
ATTN: BASSAM AL-BEITAWI
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.

3.5.2 Indemnification.

3.5.2.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers and representatives free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses except such Claims caused by the sole or active negligence or willful misconduct of the City.

3.5.2.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense, and risk, any and all Claims covered by this section that may be brought or instituted against the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers and representatives. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers, and representatives as part of any such claim, suit, action, or other proceeding.

Contractor shall also reimburse City for the cost of any settlement paid by the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers, and representatives as part of any such claim, suit, action, or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. 350
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Contractor shall reimburse the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers, 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.

Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the Contractor, the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers, and representatives.

3.5.3 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. In addition to any and all Agreement requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims, and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.

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

3.5.5 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project.

3.5.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.5.7 Assignment or Transfer. Contractor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

3.5.8 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 Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to the City include its elected or appointed officers, and their respective agents, officials, employees, 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.

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

3.5.10 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, 351
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privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.

3.5.11 No Third-Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third-party beneficiaries of any right or obligation assumed by the Parties.

3.5.12 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.

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

3.5.14 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.

3.5.15 Authority to Enter Agreement. Contractor 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.

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

3.5.17 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. This Agreement may only be modified by a writing signed by both parties.
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SIGNATURE PAGE TO MAINTENANCE SERVICES AGREEMENT

BY AND BETWEEN THE CITY OF PALM DESERT
AND PAVEWEST, INC.

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

CITY OF PALM DESERT
By:

L. Todd Hileman
City Manager
Attest:

By:

Anthony J. Mejia
City Clerk
Approved as to form:

By:

Isra Shah
Best Best & Krieger LLP
City Attorney

PAVEWEST, A CORPORATION
By:

Don Mangan
President
By:

Its: Secretary
Printed Name: Jake Lewis
Contractor’s License Number and
Classification
DIR Registration Number (if applicable)
QC: _____
Insurance:
_____
Initial Review
_____
Final Approval
_____
Bonds
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Exhibit “A”
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EXHIBIT “A”

SCOPE OF SERVICES
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356
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EXHIBIT “B”

SCHEDULE OF SERVICES
The term of this Agreement shall be from August 22, 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 Four (4) additional one-year terms.

Contractor shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services. 357
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Exhibit “C”
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EXHIBIT “C”

COMPENSATION
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EXHIBIT “C”

COMPENSATION
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EXHIBIT “C”

COMPENSATION
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PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of Palm Desert (hereinafter referred to as “City”) has awarded to PaveWest, Inc., (hereinafter referred to as the “Contractor”) an agreement for Parking Lot Rehabilitation and Maintenance Program (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 August 22, 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, PaveWest, 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 annual sum of Five Hundred Thousand Dollars, ($500,000), 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-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its elected or appointed officers, and their respective agents, officials, employees, volunteers and representatives, 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 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 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, Surety shall undertake and faithfully fulfill all such obligations. 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 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:
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) 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 361
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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.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal 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, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
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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
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.

The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(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)

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
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NOTE: This acknowledgment is to be completed for Contractor/Principal.

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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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.

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

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Palm Desert (hereinafter designated as the “City”), by action taken or a resolution passed August 22, 2024, has awarded to PaveWest, Inc., hereinafter designated as the “Principal,” a contract for the work described as follows:

Parking Lot Rehabilitation and Maintenance Program (the “Project”).; and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated August 22, 2024, (“Contract Documents”), the terms and conditions of which are expressly incorporated 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 annual sum of Five Hundred Thousand Dollars, ($500,000) 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 Section 9100 of the Civil Code, 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 Section 18663 of the Revenue and Taxation Code, 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 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 Section 9100 of the Civil Code 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 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 366
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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 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 Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.
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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
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
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NOTE: This acknowledgment is to be completed for Contractor/Principal.

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

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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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.

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

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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11700 166th Street, Artesia, CA 90701 562-686-1991 [email protected] Dear City of Palm Desert,
At PaveWest, Inc. we pride ourselves on our can-do attitude and customer service. We are a General Engineering Contractor specializing in all aspects of fine grading and asphalt paving. Our clients count on our expertise in value engineering, cutting-edge technology and creative recycling applications. We perform grading, concrete and paving at competitive rates. Will we be the lowest initial price? Often! Also and more importantly, our knowledge of specialty civil construction, grade and pave projects and routine maintenance deliver our clients the greatest long term value.

PaveWest prides itself on doing each job well. Our reputation is important to us and the quality of our work is the cornerstone of our reputation. On each project we work closely with you, our clients, to ensure that the materials used and the scope of work meet job specifications. It is our goal on every job to maintain the caliber of work that you have come to expect from us.

PaveWest is a full-service commercial paving company offering all forms of traditional paving, as well as new and innovative techniques. The types of projects we regularly pave include commercial, industrial, retail, military bases, airports, refineries, stadiums, arenas, schools and universities, HOAs, hospitals and public works. We often provide budget numbers and consult with clients on value engineering options.

PaveWest offers services to meet all your maintenance needs. We have special expertise in minimally impacting your ongoing business while satisfying your maintenance requirements.

Maintenance-Asphalt/Concrete
• Crack fill
• Skin Patching
• Petromat Overlays
• Asphalt Ramps and Berms
• Concrete Flowline
• Curb Replacement
• Grind and Overlay
• Remove and Replace
Seal Coating and Striping
• New Layout
• Restriping
• Stencil
• ADA Upgrades and Signage
• Directional Signage (we own our own coring machines)
• Concrete Wheel Stops
• Curb Painting
Regarding technical and managerial approach, PaveWest has an internal scope review with grading superintendent, concrete superintendent, paving superintendent, and striping superintendent, in conjunction with Donald Mangan, President of PaveWest and Pauline Duval, Project Manager for the Public Works Department. The internal scope review also includes Vince English and Linda Young, from our Dispatch Department. Our Dispatch Department coordinates the delivery of materials, exports, trucking, and all equipment. As required, a follow up meeting will occur every time work is required, and it will include the General Superintendent of Construction and the Superintendents that are impacted. Any additional necessary tasks such as value engineering can be discussed by Donald Mangan, President of PaveWest and the City of Palm Desert if so desired by the City.

Thank you in advance for taking the time to review our proposal. I look forward to talking with you.

Sincerely,
Pauline Duval
Project Manager
371
Bidder: PaveWest, Inc.

Project: On-Call Parking Lot Maintenance Program
Request for Proposal #MPL00002
B. Experience and Technical Competence

1. Background
During the course of PaveWest providing civil work for Public Works project, we have encountered many Public Works construction projects and we have worked with DSA. PaveWest has a designated Project Management staff and an experienced Payroll Department. Our Payroll Department specializes in prevailing wage compliance and issues. We also have a Safety Department. The Payroll and Safety departments follow California state laws.

In regard to our construction team, PaveWest performs its own demolition, grading, concrete, seal, and striping. Each trade has its own division with a General Superintendent, Superintendents, and Foreman as required by the size of each department. Demolition, grading, and paving has its own Dispatch Department due to these disciplines being the majority of our business. Our Concrete Superintendent and Seal & Stripe Superintendent handle their own dispatch but work in conjunction the Project Managers and Central Dispatch to ensure the sequencing of the schedules accordingly.

PaveWest currently has a staff of 14 people who handle various aspects of completing projects that total in the annual amount of $40-$45 million dollars. All of our Superintendents are well versed in every aspect of their specialized trade with an emphasis on professionalism, safety, and customer relations. On a yearly basis, PaveWest works with over 100 of the same general contractors and some agencies. We have ongoing yearly contracts with owners such as Home Depot (from the Bay Area to the Boarder) and Target.

We also have ongoing yearly projects with many other property management and direct large property holding companies.

2. References
Reference 1
Project: 2020 Asphalt Paving Phase 1, Bid No. 20D9BXM336 Description: Grind & Remove 18” Asphalt/Soil, Install 12” Rock Base, Construct 6” Asphalt, (2) Coats of Seal, Match Existing Striping including ADA, Wheel stops, Speedbumps, Curb & Gutter, and Sidewalk.

Owner: Simi Valley Unified School District
Contact: Timothy Murphy, SVUSD Bond Construction Manager/Coordinator Phone Number: 805-300-5776 Email: [email protected] PaveWest was the General Contractor
Date of Award: 4-21-20
Planned Duration: 80 Calendar Days Actual Duration: 42 Calendar Days Original Contract Price: $1,694,627.37 Adjusted Contract Price: $1,691,019.80 Subcontractors: N/A
Reference 2
Project: Asphalt Replacement Project – North Shore Elementary School, Bid No. NS2020-02 Description: Demolition, Disposal, Pulverize Asphalt in Place, Rough Grading, Fine Grading, Asphalt Paving, and Match Existing Striping including ADA.

Owner: Bear Valley Unified School District
372
Bidder: PaveWest, Inc.

Project: On-Call Parking Lot Maintenance Program
Request for Proposal #MPL00002
Contact: Terry Planz, Director of Maintenance and Operations Phone Number: 909-866-4179 Cell: 909-821-3714 Email: [email protected] PaveWest was the General Contractor
Date of Award: 5-20-2020
Planned Duration: 40 Works Days Actual Duration: 20 Work Days Original Contract Price: $181,000.00 Adjusted Contract Price: N/A Subcontractors: AC Dike
Reference 3
Project: Parking Lot A Renovation
Description: Demolition, Disposal, Grind & Remove, Install Rock Base, Construct Asphalt, Curb & Gutter, A-Curb, Light Standards, Catch Basin, Steps, Sidewalk, Erosion Control, Chain Link Fencing & Bollards, Electrical, Land Surveyor, and Tree Removal.

Owner: Mt. San Antonio College
Contact: Tiffany Chen, Procurement Specialist, Purchasing Department Phone Number: 909-274-5514 Cell: 909-274-2025 Email: [email protected] PaveWest was the General Contractor
Date of Award: 7-1-2019
Planned Duration: 42 Calendar Days Actual Duration: 42 Calendar Days Original Contract Price: $1,079,306.00 Adjusted Contract Price: $1,073,306.00 Subcontractors: Psomas, V&E Tree Service, Team West Contracting, Rovazzini Electric Reference 4
Project: Bid # 569 Asphalt Paving
Description: At Various Schools - Remove & Replace Asphalt, Grind 7” of Asphalt/Soil, Install 4” Base, Construct 3” Asphalt, Slurry Seal, Match Existing Striping including ADA, Concrete Paving, and Crack Fill.

Owner: Oxnard High School District
Contact: Joshua Brown, Project Manager
Phone Number: 805-385-1514 ext. 2501 Cell: 805-394-9393 Email: [email protected] PaveWest was the General Contractor
Date of Award: 6-6-2018
Planned Duration: 40 Calendar Days Actual Duration: 40 Calendar Days Original Contract Price: $1,392,259.46 Adjusted Contract Price: $1,342,734.55 Subcontractors: N/A
B. Financial Statement
Available upon request
C. Safety Records
No specific requirements for PaveWest’s accident frequency factor and workers' compensation experience modification rate.

D. Experience Data
Please see attached list of all completed projects.
373
C. Firm Staffing and Key Personnel

1. Staffing
The staffing assigned to meet the goals and fulfill the scope of work will vary between of number of key personnel and field personnel. Pauline Duval will be the project manager for each project and will be the main point of contact for any and all administrative requests, documentation of scope of work, proposals and changes to scope of work. The general superintendents will be either Vince English or Ruben Meraz, depending on the scope of work. English and Meraz will make sure work is completed correctly and in a timely manner. Field Personnel will vary on a project by project basis and will be determined as the projects progress.

2. Key Personnel
Richard T. Mangan, Owner
Mr. Mangan has over 30 years of experience in electrical and instrumentation engineering, design, and construction oversight. He is well versed in all aspects of electrical power distribution, electrical controls and instrument controls related to the Petrochemical Industry. He is responsible for company organization and business development.

Donald P. Mangan, President
Mr. Mangan has over 30 years of experience in commercial construction and site improvement.

He is proficient in all facets of cost estimating, structural concrete, grading, paving and equipment maintenance. He has recently completed major projects such as the Project Cherry for Clayco, Amazon DAX8 for Uprite, Amazon DCX2 for Catamount and many more projects of this scale. In addition, he oversees the construction of smaller, ongoing projects, with the help of his dispatch and construction foremen and project managers.

Vince English, Project Superintendent
Mr. English has over 25 years of experience in commercial construction and site improvement.

As a Field Superintendent he is proficient in all facets of grading and paving. He has the ability to complete the project on schedule and maintain an excellent relationship with all other contractors and code jurisdiction agencies to ensure the successful completion of the project.

Pauline Duval, Project Manager, Public Works
Mrs. Duval has 5+ years with PaveWest in both the private and public construction areas. She assumed the position of Project Manager in Public Works in 2020 and has managed complex projects worth in excess of $1.5 million.

Ruben Meraz, General Superintendent of Striping
Mr. Meraz has been with PaveWest since 2011 and has extensive experience in sealcoating, striping and signage. He assumed the General Superintendent position since 2015. During the 374
last 7 years he has supervised multiple simultaneous projects and crews, with some project up to 1,000,000 SF.

Gerardo Aceves, Superintendent
Mr. Aceves has been with PaveWest since 2011 on the striping and maintenance crews. He assumed the superintendent’s position in 2015. He has supervised numerous, large, complex projects all over the states of California and Arizona.

3. Team Organization
The public works department, dispatch management, and all superintendents will work closely to ensure that the scope of work is completed. The Project manager will work with the dispatch department to perform daily monitoring and following the progress of project, which includes ensuring all materials, lodging, labor, fuel, etc. is available for our crews. The total duration for each project at Various Sites will vary in length of time.

4. Subcontractor
No subcontractors will be used for any portion of work. 375
Proposed Method to Accomplish the Work
The following is a description of the approach PaveWest will use to meet the goals and fulfill the general scope of work included but not limited to bid documents. PaveWest’s general approach to a project such as this would entail a kickoff production and scope meeting in our corporate office located in Artesia, CA via zoom. While at this meeting, PAULINE DUVAL, project manager for this project, will present our asphalt and striping general superintendents, VINCE ENGLISH and RUBEN MERAZ, and superintendents for asphalt and striping, JESSIE MARQUEZ and GERARDO ACEVES. The general scope including the schedules within the bid documents, the specs, a map of all locations, and the materials to be used, as well as selecting the appropriate manpower for each phase, will be discussed in great detail. Google earth enlarged photos will be presented to ensure the striping after sealcoat is put in per existing layout as described in the bid documents. It is anticipated that lodging and travel as well as suitable safety procedures regarding the scope and excessive heat while working will be discussed at length as well as ensuring documentation. PaveWest will have LINDA YOUNG, dispatcher, and PAULINE DUVAL, project manager, perform daily monitoring and following the progress of project, which includes ensuring all materials, lodging, labor, fuel, etc. is available for our crews. The total duration for the Asphalt Repairs, Seal Coat, Crack fill, and Restripe at Various Sites will vary in length of time. 376
ITEM SCOPE APPROX. QTY UNIT COST
1 Remove & replace asphalt up to 4" thick 1-1,000 SF $ 5.40 2 Remove & replace asphalt up to 4" thick 1,001-5,000 SF $ 5.30 3 Remove & replace asphalt up to 4" thick 5,001-10,000 SF $ 5.05 4 Remove & replace asphalt up to 4" thick 10,0001 + SF $ 4.78 5 Each additional inch of thickness of asphalt to R&R EA SF $ 0.93 6 Mill & overlay asphalt up to 2" thick 1-1,000 SF $ 3.65 7 Mill & overlay asphalt up to 2" thick 1,001-5,000 SF $ 3.45 8 Mill & overlay asphalt up to 2" thick 5,001-10,000 SF $ 3.20 9 Mill & overlay asphalt up to 2" thick 10,0001 + SF $ 2.95 10 Overlay asphalt up to 2" (No Mill) 1-1,000 SF $ 3.20 11 Overlay asphalt up to 2" (No Mill) 1,001-5,000 SF $ 3.00 12 Overlay asphalt up to 2" (No Mill) 5,001-10,000 SF $ 2.80 13 Overlay asphalt up to 2" (No Mill) 10,0001 + SF $ 2.65 14 Install up to 4" of base (includes removal) 1-1,000 SF $ 2.60 15 Install up to 4" of base (includes removal) 1,001-5,000 SF $ 2.05 16 Install up to 4" of base (includes removal) 5,001-10,000 SF $ 1.80 17 Install up to 4" of base (includes removal) 10,0001 + SF $ 1.60 18 Manhold Adjustment (Single Adjust) 1 EA $ 1,800.00
19 Water Valve Adjustment (Single Adjust) 1 EA $ 600.00 20 Hot Crackseal Material 1-1,000 SF $ 2.20
21 Hot Crackseal Material 1,001-5,000 SF $ 1.80
22 Hot Crackseal Material 5,001-10,000 SF $ 1.60
23 Hot Crackseal Material 10,0001 + SF $ 1.45
24 Cold Crackseal Material 1-1,000 SF $ 2.20
25 Cold Crackseal Material 1,001-5,000 SF $ 1.80
26 Cold Crackseal Material 5,001-10,000 SF $ 1.60
27 Cold Crackseal Material 10,0001 + SF $ 1.45
28 Seal coat (1 coat) 1-1,000 SF $ 0.48
29 Seal coat (1 coat) 1,001-5,000 SF $ 0.44
30 Seal coat (1 coat) 5,001-10,000 SF $ 0.36
31 Seal coat (1 coat) 10,0001 + SF $ 0.21
32 Seal coat (2 coat) 1-1,000 SF $ 0.53
33 Seal coat (2 coat) 1,001-5,000 SF $ 0.49
34 Seal coat (2 coat) 5,001-10,000 SF $ 0.41
35 Seal coat (2 coat) 10,0001 + SF $ 0.26
36 Remove & replace 2"x4" redwood headerboard 1 LF $ 20.00 37 Place new speedbump/speedhump 1 EA $ 1,800.00
38 Asphalt Minimum Move Charge 1 EA $ 3,900.00
39 Crackseal/Seal/Striping Minimum Move Charge 1 EA $ 2,900.00 40 Striping - Single Parking Stall 1 EA $ 12.00
41 Striping - Double Parking Stall (Square End) 1 EA $ 18.00 RFP No. : MPL00002 - Project No. : MPL00002
Project Title: On-Call Parking Lot Maintenance Program
377
42 Striping - Double Parking Stall (Round End) 1 EA $ 18.00 43 Striping - Handicap Parking Stall 1 EA $ 42.00
44 Striping - 4' "STOP" stencil with restraining bar 1 EA $ 60.00 45 Striping - 8' "STOP" stencil with restraining bar 1 EA $ 60.00 46 Striping - Painted Curb 1 LF $ 0.96
47 Striping - Replace 4' Wheelstop 1 EA $ 54.00
48 Striping - Replace 6' Wheelstop 1 EA $ 102.00
49 Striping - Speedbump / Speedbump 1 EA $ 150.00
50 Striping - Path of Travel 1 SF $ 0.72
51 Striping - Double Yellow Line (4") 1 LF $ 0.72
52 Striping - Raised Pavement Markers 1 EA $ 18.00
53 Striping - Arrow 1 EA $ 30.00
54 Striping - 4" wide Line 1 LF $ 0.36
55 Striping - 6" wide Line 1 LF $ 0.50
56 Striping - 8" wide Line 1 LF $ 0.65
57 Striping - 12" wide Line 1 LF $ 1.00
58 Striping - New "STOP" sign (no post) 1 EA $ 120.00
59 Striping - New "STOP" sign (with new post) 1 EA $ 300.00 60 Striping - New handicap sign (no post) 1 EA $ 120.00 61 Striping - New handicap sign (with new post) 1 EA $ 300.00 62 Striping - Core drill concrete or asphalt for new post 1 EA $ 210.00 63 Backhoe with Breaker & All Attachments 1 HR $ 380.00 64 Super Ten Dump Truck with Drop Axel 1 HR $ 155.00
65 3-5 Tons Roller 1 HR $ 45.00
66 5-8 Tons Roller 1 HR $ 55.00
67 8-10 Tons Roller 1 HR $ 78.00
68 10-12 Tons Roller 1 HR $ 80.00
69 4 Wheel Drive Skip Loader 1 HR $ 260.00
70 Skid Steer with Grinder, Broom Bucket & Hammer 1 HR $ 390.00 71 Water Truck 1 HR $ 155.00
72 8'-16' Paver Rubber Track 1 HR $ 290.00
73 10' x 20' Rubber Tires 1 HR $ 385.00
74 4' Milling Machine 1 HR $ 390.00
75 5' Milling Machine 1 HR $ 410.00
76 Hydro Vac - Ditch Witch 500 Gallon with wash system 1 HR $ 585.00 77 Lowbed Services 1 HR $ 158.00
78 Kick Broom 1 HR $ 260.00
79 125 Melter 1 HR $ 180.00
80 250 Melter 1 HR $ 190.00
81 250 Gallon Mastic Machine 1 HR $ 210.00
82 Arrow Board 1 HR $ 50.00
83 Traffic Control 1 HR $ 68.00
84 Crew Truck 1 HR $ 45.00
Equipment:
378
85 Foreman 1 HR $ 135.00
86 Laborer 1 HR $ 115.00
87 Operator 1 HR $ 135.00
88 Asphalt 1 TN $ 103.00
89 Aggregate Base 1 TN $ 19.00
90 Seal Coat 1 Gal $ 2.45
Material:

Labor:
379
380

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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Chris Gerry, Senior Project Manager
REQUEST: RESOLUTION APPROVING ADMINISTRATIVE POLICY REGARDING

THE USE OF OTHER POWER-DRIVEN MOBILITY DEVICES
RECOMMENDATION:

Adopt a resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

DESERT, CALIFORNIA, APPROVING ADMINISTRATIVE POLICY REGARDING THE USE OF OTHER POWER-DRIVEN MOBILITY DEVICES.”
BACKGROUND/ANALYSIS:

The City of Palm Desert (City) consistently attempts to accommodate individuals that use wheelchairs and manually powered mobility aids. The City also makes reasonable accommodations for the use of other power-driven mobility devices (OPDMDs) in pedestrian areas. This staff report presents Administrative Policy ADA-001, which outlines the use of OPDMDs by individuals with mobility disabilities in Palm Desert.

The policy outlines the use of mobility devices by individuals with disabilities, as long as these devices do not pose significant safety risks or fundamentally alter City services, programs, and activities. It includes definitions for wheelchairs, manually powered mobility aids, OPDMDs, and credible assurance. The policy ensures the safe use of OPDMDs on City pathways, trails, and facilities without harming the environment or other users. Finally, the policy outlines authorized types of OPDMDs, safety requirements, and modification requests.

The administrative policy reinforces the City’s commitment to accessibility and inclusion; therefore, staff recommends the City Council adopt the resolution and approve the policy.

Legal Review:

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

FINANCIAL IMPACT:

There is no financial impact with adoption of the resolution and approval of the policy.

ATTACHMENTS:

1. Resolution
a. Exhibit A, Administrative Policy (ADA-002)
381
382
RESOLUTION NO. 2024-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

DESERT, CALIFORNIA, APPROVING ADMINISTRATIVE POLICY

REGARDING THE USE OF OTHER POWER-DRIVEN MOBILITY

DEVICES
WHEREAS, the City adheres to the Americans with Disabilities Act (ADA) by ensuring equitable access for individuals with disabilities; and WHEREAS, the City is responsible to appropriately support individuals with disabilities that use power-driven mobility devices; and WHEREAS, the City desires to formalize its policy for power-driven mobility devices; and
WHEREAS, the City Council has been presented with a policy in the form attached to this Resolution as “Administrative Policy ADA-001” and by this reference incorporated herein.

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

SECTION 1. The foregoing Recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The City Manager is hereby authorized to establish and periodically review and update Administrative Policy ADA-001.

SECTION 3. The attached Administrative Policy ADA-001 shall be added to the City’s Administrative Procedures.

ADOPTED ON AUGUST 22, 2024.

KARINA QUINTANILLA
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK
383
Resolution No. 2024-____ Page 2
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.

ANTHONY J. MEJIA

CITY CLERK
384

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CITY OF PALM DESERT

ADMINISTRATIVE PROCEDURES
Subject: Other Power-Driven Mobility Devices
Policy #: ADA-001
Council Approval: August 22, 2024

1. INTRODUCTION
On September 15, 2010, the United States Department of Justice amended the regulations governing nondiscrimination on the basis of disability in state and local government services, effective March 15, 2011. According to 28 CFR § 35.137, this regulation requires public entities to permit use of wheelchairs and other manually powered mobility aids by individuals with mobility disabilities. It also mandates reasonable modifications to policies to allow the use of other power-driven mobility devices (OPDMDs) by individuals with mobility disabilities in areas open to pedestrian use.

In accordance with the Americans with Disabilities Amendments Act and subsequent regulations, it is the policy of City of Palm Desert that mobility devices used by individuals with disabilities are generally permitted in all facilities and programs.

The City of Palm Desert will make reasonable modifications to allow individuals with mobility disabilities to use OPDMDs at City events and in City facilities, provided that the operation of these devices does not pose significant safety risks. This includes adhering to safe speed limits and being cautious around pedestrians. Additionally, the use of these devices must not fundamentally alter the nature of the services, programs, and activities provided by the City.

2. DEFINITIONS
a) Wheelchair refers to a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or both indoor and outdoor locomotion as defined in 28 CFR § 35.104.
b) Manually Powered Mobility Aids refers to walkers, crutches, canes, braces, or similar device designed for use by individuals with mobility impairments. c) Other Power-Driven Mobility Device (OPDMD) refers to any mobility device powered by batteries, fuel, or other engines, whether or not designed primarily for use by individuals with mobility disabilities. These devices are used by individuals with mobility disabilities for locomotion and include golf cars, electronic personal assistance mobility devices (EPAMDs) such as the Segway Personal Transporter or an electric-assisted bicycle, or any mobility device designed to operate in areas without defined pedestrian routes. This definition excludes wheelchair as defined in 28 CFR § 35.104.
d) Credible Assurance means a valid state-issued disability parking placard or card, or stateissued proof of disability, presented by the person to whom it was issued and compliant with the state’s requirements for disability placards or cards, as defined in 28 CFR § 35.137. Additionally, a verbal statement indicating that the device is being used due to a mobility disability, provided it does not contradict observable facts, also constitutes credible assurance. 385
Other Power-Driven Mobility Devices Policy ADA-001

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3. PURPOSE
The purpose of this guideline is to address the use of OPDMDs by individuals with mobility disabilities on pathways or trails (paved or unpaved) located in the following areas:
a. Properties/facilities owned and/or operated by City of Palm Desert (City). b. Properties and facilities managed by the City under a lease, easement, or use agreement. c. City events.

4. ELIGIBILITY
Manually Powered Mobility Aids refers to walkers, crutches, canes, braces, or similar device designed for use by individuals with mobility impairments. The operator or passenger of an OPDMD must be an individual with a mobility disability. Upon request from a staff member, usher, or employee, the individual must provide credible assurance that the OPDMD is required due to the individual’s mobility disability.

City staff, ushers, or employees will not inquire about the nature or extent of an individual’s disability.

Credible assurance may be provided by either of the following:
a. A valid state-issued disability parking placard or card, or other state-issued proof of disability; or b. A verbal representation, not contradicted by observable fact, that the OPDMD is being used for a mobility disability.

5. ASSESSMENT FACTORS
Any OPDMD operated on City-owned and operated properties or facilities, as well as properties managed under a lease, easement, or use agreement, or at City events, must meet the following assessment factors. These factors are used to determine whether a particular OPDMD is allowed be allowed in a specific area as a reasonable accommodation:
a. The type, size, weight, dimensions, and speed of the OPDMD; b. The area’s volume of pedestrian traffic;
c. The area’s design and operational characteristics;
d. Whether legitimate safety requirements can be established to permit the safe operation of the OPDMD in the specific area; and
e. Whether the use of the OPDMD creates a substantial risk of serious harm to the immediate environment, natural or cultural resources, or the safety of occupants and visitors.

6. REQUIREMENTS
a. To ensure the safety of all individuals using City pathways, trails (paved or unpaved), properties, and facilities, OPDMDs must not exceed a typical walking speed of three (3) mph when operated in these areas or at outdoor events.
b. The OPDMD shall not be operated in an unsafe manner or cause damage to City property. The OPDMD operator assumes all risks associated with operating the OPDMD on City property. City does not represent that City-owned properties are safe for use by an OPDMD and does not assume any liability for operation of the OPDMD. Certain risks are inherent in the use of OPDMDs on City-owned properties.
c. An OPDMD must be capable of being turned around safely within the trail or pathway tread. d. OPDMD operators are prohibited from the using any substance that could impair their judgment or mobility, including but not limited to alcohol, prescription medications, or illegal narcotics. e. The OPDMD operator or passenger is responsible for ensuring the OPDMD functions properly according to the manufacturer’s instructions. The operator is also responsible for adhering to the manufacturer’s operating and protective equipment requirements. f. Operators of permitted OPDMDs must yield the right-of-way to persons on foot, horseback, or using non-motorized devices (e.g., bicycles) and must announce their presence before passing another trail or pathway user.
386
Other Power-Driven Mobility Devices Policy ADA-001

Page 3 of 4 ends

g. An OPDMD must be capable of safely navigating trail and pathway features and obstructions such as steps, vertical displacements, ponded water, loose gravel, and rocks. The characteristics of certain types of OPDMDs may impact other pathway or trail users, depending on the volume of traffic and the operational characteristics of the pathway or trail. These pathways or trails typically accommodate high-capacity, two-way traffic, where width and speed restrictions must allow for the safe passing of OPDMDs, bicycles, equestrians, and pedestrians. h. City Golf Courses: Persons with mobility disabilities must use an accessible cart, wheelchairs, or other manually powered mobility aids if the device is to be used for the purpose of golf recreation. Golf course paths are located in recreational settings that are not appropriate for other trail devices, such as bicycles, horses, or OPDMDs not suited for golfing use

7. LIMITATIONS
a. Wheelchairs and any OPDMDs are not permitted on escalators in City facilities. b. The City shall not provide battery charging or emergency retrieval services for OPDMDs. c. The City shall not transport OPDMDs to or from City property. d. The City shall not store any privately-owned OPDMDs. e. The City reserves the right to restrict OPDMD use during special events or during times of heavy traffic on City pathways or trails if such limitations are deemed necessary, in the opinion of the City, to protect the public health, safety, and welfare of patrons. f. The weight of an OPDMD may not be supported on certain pedestrian routes or undeveloped areas due to natural features. This could pose a serious danger to the OPDMD operator or other persons on City property or facilities.

8. PROHIBITED DEVICES
The following devices are prohibited on City pathways, trails (paved or unpaved), and in properties and facilities:
a. Gas or combustible fuel-powered devices are prohibited because: (1) fuel leaks and/or sparks may result in pollution or fires on the largely forested and/or grassy City pathways, trails, and properties/facilities; and (2) exhaust and noise emissions from the devices can disturb or damage natural or cultural resources of the City's pathways, trails, and properties/facilities, as well as disrupt the outdoor experience for other park patrons, building occupants, and visitors. These devices may only be used by City staff, ushers, or employees when necessary for operational and maintenance purposes.
b. Other types of electric-powered devices, such as electric motorcycles and mopeds (except for EPAMDs and EABs), are prohibited due to the following reasons: (1) the typical high speeds at which these devices are operated; (2) the potential damage to City pathways, trails and properties surfaces caused by their tires, such as those with tractor-like, steel threads, or off-road designs; (3) some devices may only be permitted on roads or private property according to State law; and (4) OPDMDs with two or fewer wheels are prone to tipping.
c. OPDMDs exceeding 36 inches in width are prohibited because: (1) many City pathways and trails are less than 8 feet wide; and (2) OPDMDs wider than 36 inches can pose a potential danger to users approaching from the opposite direction or to those attempting to pass the OPDMD from behind.
387
Other Power-Driven Mobility Devices Policy ADA-001

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9. GUIDELINES AND RECOMMENDATIONS
a. Due to varying conditions on City property and to ensure safety and the protection of natural resource, the City recommends that OPDMDs users contact the City at: 760-776-6450 (TTY:

California Relay Service 7-1-1) to confirm whether an OPDMD is permitted on a particular trail or pathway.
b. The City may modify these guidelines from time to time as it may deem necessary or as required by law. It is the user’s responsibility to ensure that they are in conformance with these guidelines. c. Requests for Modifications to OPDMD Policy. The City will consider requests for reasonable accommodation from individuals with disabilities who wish to use OPDMDs that do not meet the criteria listed above and/or in an area not previously authorized for use. d. A copy of the most current OPDMD Guidelines will be available for public review upon request via the ADA/504 Coordinator.
388

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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Thomas Soule, Public Affairs Manager
SUBJECT: OUT-OF-STATE TRAVEL FOR THE PUBLIC AFFAIRS MANAGER TO

ATTEND THE LAS VEGAS SOUVENIR & RESORT GIFT SHOW
RECOMMENDATION:

Approve out-of-state travel for the Public Affairs Manager to attend the Las Vegas Souvenir & Resort Gift Show from September 17-20, 2024.

BACKGROUND/ANALYSIS:

One of the most common inquiries at the Discover Palm Desert Visitor Center is where our visitors can purchase Palm Desert merchandise such as t-shirts, mugs, and ball caps. Although the Visitor Center sold such merchandise at its previous locations, this practice was discontinued due to space considerations when operations moved to City Hall nine years ago. Now that the Visitor Center has moved to the revitalized Palm Desert Library, the City once again has the opportunity to provide Palm Desert merchandise for sale.

In the past, Visitor Center staff ordered this merchandise wholesale at the Las Vegas Souvenir & Resort Gift Show. Staff is requesting authorization to attend the show in September to reestablish vendor connections and order an initial inventory of goods to sell, potentially including t-shirts, caps, mugs, postcards, and magnets. The plan is to start small with an investment in unique, high-quality goods that will represent the Palm Desert brand well.

Staff will monitor sales closely to ensure that the goods provided for sale meet market demand and will grow the program over time. The Visitor Center and Public Affairs team is working closely with Finance to establish an inventory control plan, a process that will provide a solid foundation for our operations. The City’s purchasing policy will be followed to procure the goods to be sold, ensuring transparency and accountability.

Legal Review:

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

FINANCIAL IMPACT:

The Las Vegas Souvenir & Resort Gift Show is free to attend. Funds for travel costs in an amount not to exceed $1,000 are available in the Marketing budget, Conf-Seminars-Workshops Account No. 1104417-4312000. Funds for the initial purchase of merchandise are already available in the Public Affairs budget, and there is no additional impact to the General Fund. Costs of the merchandise are expected to be covered by the revenue from the sales. 389
390

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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Anthony J. Mejia, City Clerk
SUBJECT: APPOINTMENTS TO THE MOBILE HOME PARK RENT REVIEW BOARD RECOMMENDATION:

Appoint Jann Buller, Andrew Firestine, and John Greenwood to the Mobile Home Park Rent Review Board for a one-year term, ending June 30, 2025.

BACKGROUND/ANALYSIS:

Pursuant to Palm Desert Municipal Code Chapter 9.50, a Mobile Home Park Rent Review Board (the Board) is responsible for receiving, investigating, hearing, and determining petitions of landlords for hardship adjustments of rent and interpretations of Chapter 9.50, Mobile Home Park Rent Review. The Board is composed of three members, with up to two alternate members, and their decisions are final. In the past 14 years, no petitions have been filed that necessitated convening the Board.

On July 10, 2024, the City received a “Petition for Interpretation Application” requesting the City Attorney’s interpretation of Chapter 9.50. In consultation with the City Attorney, it may be necessary to convene the Board for interpretation and determination. Currently, the Board is vacant. Due to the potential urgency and limited scope of the Board, staff reached out to the City Council Ad Hoc Committee on Boards and Commissions, consisting of Councilmember Kelly and Mayor Pro Tem Harnik, who expressed support for a proposal to waive interviews and appoint two members of the Housing Commission and one member of the Planning Commission for shortened terms through June 30, 2025. If there are delays in considering the petition, the City Council may be requested to extend the terms of appointment.

City staff reached out to several members to solicit volunteers to serve on the Board. Jann Buller and Andrew Firestine, of the Housing Commission, and John Greenwood, of the Planning Commission, agreed to serve if appointed.

Legal Review:

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

FINANCIAL IMPACT:

There is no financial impact associated with this action. 391
392

Page 1 of 2 ends

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Daniel Hurtado, Public Safety Analyst
SUBJECT: RESOLUTION DESIGNATING AUTHORIZED AGENTS FOR APPLYING

FOR THE YOUTH COMMUNITY ACCESS GRANT
RECOMMENDATION:

Adopt a resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

DESERT, CALIFORNIA, DESIGNATING THE CITY MANAGER, ASSISTANT CITY MANAGER,

AND CITY TREASURER AS AUTHORIZED AGENTS APPROVING THE APPLICATION FOR GRANT FUNDS FOR THE YOUTH COMMUNITY ACCESS GRANT PROGRAM.” BACKGROUND/ANALYSIS:

On November 8, 2016, California voters approved the Control, Regulate, and Tax Adult Use of Marijuana Act (Proposition 64), which legalized recreational cannabis use for adults over 21 and imposed new excise taxes on its cultivation and retail sales. Proposition 64 established the Youth Education, Prevention, Early Intervention, and Treatment Account (YEPEITA), into which 60% of the tax revenue from marijuana sales is deposited by the State Controller. These funds are designated for youth programs that focus on education about substance use disorders, prevention, early intervention, and the provision of timely treatment services for youth, their families, and caregivers.

YEPEITA funds allocated to the California Natural Resources Agency (the State) are intended for competitive grants aimed at enhancing youth access to natural and cultural resources, particularly in low-income and disadvantaged communities. These grants can cover a range of initiatives, including community education and recreational facilities, designed to promote substance use prevention and early intervention among youth. To fulfill this objective, the State established the Youth Community Access Grant Program. This program provides competitive grants to communities disproportionately impacted by historical federal and state drug policies, commonly referred to as the “War on Drugs,” as well as other underserved areas.

The purpose of this funding is to cover the costs of the YMCA Nature Play Project, aimed at transforming the outdoor learning environment at the Jean Benson Early Childhood Education Center, located within the Desert Rose affordable housing development in Palm Desert.

The current space would be enhanced with natural materials that support curriculum promoting active learning across various developmental domains, including social, gross motor, sensory integration skills, and dual language learning. Use of natural materials and plants native to the desert, which are sustainable in our unique climate, will provide a rich context for daily exploration and endless learning opportunities for the children in attendance. Utilizing the environment as the “third teacher” is fundamental to early care and education, as it fosters a love for the earth, nature, and lifelong learning in our youngest residents. 393
City of Palm Desert
Resolution for the Youth Community Access Grant

Page 2 of 2 ends

The California Natural Resources Agency's procedures requires a resolution from the applicant's governing board, certifying approval of the application, to be obtained before submission. The City of Palm Desert will act as the lead applicant in partnership with The Family YMCA.

Legal Review:

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

FINANCIAL IMPACT:

There is no direct financial impact associated with this action. Designating authorized agents could have a favorable financial impact by enabling the City to pursue and secure funding opportunities.

ATTACHMENT:

1. Draft Resolution
394
RESOLUTION NO. 2024-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

DESERT, CALIFORNIA, APPROVING THE APPLICATION FOR GRANT

FUNDS FOR THE YOUTH COMMUNITY ACCESS GRANT PROGRAM
WHEREAS, the Legislature and Governor of the State of California have provided funds for the program shown above; and
WHEREAS, the California Natural Resources Agency has been delegated the responsibility for the administration of this grant program, establishing necessary procedures; and
WHEREAS, said procedures established by the California Natural Resources Agency require a resolution certifying the approval of application(s) by the Applicant’s governing board before submission of said application(s) to the State; and WHEREAS, the City of Palm Desert, if selected, will enter into an agreement with the State of California to carry out the project.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, that it:

SECTION 1. Approves the filing of an application for the YMCA Nature Play Project.

SECTION 2. Certifies that Applicant understands the assurances and certification in the application package.

SECTION 3. Certifies that Applicant or title holder will have enough funds to operate and maintain the project consistent with the grant guideline requirements or will secure the resources to do so.

SECTION 4. Certifies that it will comply with all provisions of Section 1771.5 of the California Labor Code.

SECTION 5. If applicable, certifies that the project will comply with any laws and regulations including, but not limited to, the California Environmental Quality Act (CEQA), legal requirements for building codes, health and safety codes, and disabled access laws, and that prior to commencement of construction, all applicable permits will have been obtained.

SECTION 6. Appoints the City Manager, Assistant City Manager, City Treasurer, or designee, as agent to conduct all negotiations, execute and submit all documents including, but not limited to, applications, agreements, payment requests and so on, which may be necessary for the completion of the aforementioned project(s). 395
Resolution No. 2024-____ Page 2
ADOPTED ON ________________, 20__.

KARINA QUINTANILLA
MAYOR
ATTEST:

ANTHONY J. MEJIA

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ______________, 20__.

ANTHONY J. MEJIA

CITY CLERK
396

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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: August 22, 2024
PREPARED BY: Nick Melloni, AICP, Principal Planner
SUBJECT: ORDINANCE NO. 1416 TO AMEND MULTIPLE SECTIONS OF TITLE 25

OF THE PALM DESERT MUNICIPAL CODE AND FINDING THE ACTION

EXEMPT PER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
RECOMMENDATION:

Adopt Ordinance No. 1416 entitled, “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY

OF PALM DESERT, CALIFORNIA, APPROVING A ZONING ORDINANCE AMENDMENT FOR SECTIONS 25.16.030, 25.18.040, 25.28.070, 25.34.120, 25.68.020, AND 25.99.020 OF PALM DESERT MUNICIPAL CODE TITLE 25 AND MAKING A FINDING THAT THE ACTION IS

EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).”
BACKGROUND/ANALYSIS:

On June 27, 2024, the City Council voted unanimously to introduce Ordinance No. 1416 for the first reading. The City Council passed the ordinance to second reading with modifications to the Planning Commission’s recommendation, which removed all allowances for “Cannabis Microbusinesses.”
Per California Government Code Section 65857, the modified ordinance required the Planning Commission to consider the modifications for recommendation. On July 16, 2024, the Planning Commission adopted Planning Commission Resolution No. 2876, recommending approval of the modification in accordance with state law.

This report provides for the City Council to waive further reading and adopt the Ordinance. The ordinance shall be effective 30 days from adoption.

Legal Review:

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

FINANCIAL IMPACT:

There is no direct financial impact with this action.

ATTACHMENT:

1. Ordinance No. 1416
397
398
ORDINANCE 1416

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,

CALIFORNIA APPROVING A ZONING ORDINANCE AMENDMENT FOR
SECTIONS 25.16.030, 25.18.040, 25.28.070, 25.34.120, 25.68.020, AND

25.99.020 OF PALM DESERT MUNICIPAL CODE TITLE 25 AND MAKING A

FINDING THAT THE ACTION IS EXEMPT FROM FURTHER

ENVIRONMENTAL REVIEW PURSUANT TO THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA).”
CASE NO. ZOA 24-0002
WHEREAS, Government Code Section 65800 et seq. provides for the amendment of any and all adopted City of Palm Desert (“City”) zoning laws, ordinances, rules and regulations; and
WHEREAS, the Zoning Ordinance Amendment (ZOA) is initiated by the Palm Desert Director of Community Development and modifies sections of the Palm Desert Municipal Code (PDMC) Title 25 (Zoning) to correct typos, to change and update land uses and definitions; and
WHEREAS, the City has complied with the requirements of the Local Planning and Zoning Law (Government Code section 65100 et seq.), and the City’s applicable ordinances and resolutions with respect to approval of amendments to Title 25 of the Palm Desert Municipal Code (“Zoning Ordinance”); and
WHEREAS, under Section 21067 of the Public Resources Code, Section 15367 of the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), and the City of Palm Desert’s (“City’s”) Local CEQA Guidelines, the City is the lead agency for the Project; and
WHEREAS, the Project has complied with the requirements of the "City of Palm Desert Procedure for Implementation of CEQA” Resolution No. 2019-41, in that the Director of Development Services has determined that the Project will not have a foreseeable significant impact on the environment and that the Project is eligible for an exemption exempt Section 15061(b)(3) General Rule of the CEQA Guidelines; therefore, no further environmental review is necessary at this time; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred; and
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on June 4, 2024, hold a duly noticed public hearing to consider the project and unanimously voted to adopt Planning Commission Resolution No. 2871 recommending the City Council approve the ordinance amendment as presented; and WHEREAS, the City Council of the City of Palm Desert, California, did on June 27, 2024, hold a duly noticed public hearing to consider the recommendation of Planning 399
Ordinance No. 1416 Page 2
Commission Resolution No. 2871 with modifications which affected Sections 25.16.030 and 25.34.120 of the above noted requests; and
WHEREAS, the Planning Commission of the City of Palm Desert, California, did on July 16, 2024, adopt Resolution No. 2876 recommending approval of the modifications to Sections 25.16.030 and 25.34.120 in accordance with California Government Code Section 65857; and
WHEREAS, at the said public hearing of June 27, 2024, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, the City Council did find the following facts and reasons, which are outlined in the staff report, exist to justify approval of said request:

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA DOES ORDAIN AS FOLLOWS:

SECTION 1. Findings. The City Council hereby finds that:

A. The City of Palm Desert, California (“City”), a municipal corporation duly organized under the constitution and laws of the State of California; and B. The Planning and Zoning Law authorizes cities to establish by ordinance the regulations for land use and development.

SECTION 2. Amendment. The City Council of the City of Palm Desert does hereby approve and adopt the PDMC amendments to Title 25 as shown in “Exhibit A”, which is attached hereto and incorporated herewith.

SECTION 3. CEQA. The City Council finds that adoption of this ordinance is not a “project,” as defined in the California Environmental Quality Act (CEQA) because it does not have a potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and concerns general policy and procedures.

SECTION 4. Severability. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this ordinance or any part thereof is for any reason held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.

SECTION 5. Project Approval. The City Council approval of Case No. ZOA24-0002 as depicted in Exhibit A, attached hereto; and
400
Ordinance No. 1416 Page 3
SECTION 6. Publication. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this Ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption.to the Commission shall attest and certify to the passage and adoption thereof.

ADOPTED ON June 27, 2024.

KARINA QUINTANILLA
MAYOR
ATTEST:

ANTHONY J. MEJIA

CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Ordinance No. 1416 is a full, true, and correct copy, and was introduced at a regular meeting of the City Council of the City of Palm Desert on June 27, 2024, and adopted at a regular meeting of the City Council held on July ____, 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on _______________.

ANTHONY J. MEJIA

CITY CLERK
401
Ordinance No. 1416 Page 4
“EXHIBIT A”

ZONING ORDINANCE AMENDMENT
SECTION 1. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 25.16.030 is hereby amended as follows:

25.16.030 Allowed Land Uses and Permit Requirements
Table 25.16-1 (Use Matrix for Commercial and Industrial Districts) identifies allowed uses and corresponding permit requirements for commercial and industrial districts and all other provisions of this title. Descriptions/definitions of the land uses can be found in Chapter 25.99 (Definitions). The “Special Use Provisions” column in the table identifies the specific chapter or section where additional regulations for the specific use type are located within this title.

Use regulations in the table are shown with representative symbols by use classification listing: “P” symbolizes uses permitted by right, “A” symbolizes uses that require approval of an administrative use permit, “C” symbolizes uses that require approval of a conditional use permit, and “N” symbolizes uses that are not permitted. Uses that are not listed are not permitted. However, the Commission may make a use determination as outlined in Section 25.72.020 (Use Determinations).

Table 25.16-1: Use Matrix for Commercial and Industrial Districts Commercial/Industrial District
(P=Permitted; A=Administrative Use Permit; C=Conditional Use Permit; N=Not Permitted)
OP PC-1 PC-2 PC-3 PC-4 SI
Special Use
Provisions
Residential Uses
Caretaker housing N N N N N P 25.16.040.A
Condominium C C C N C C 25.16.040.B /

25.42 Dwelling, duplex C C C C C C 25.16.040.B
Dwelling, multifamily C C C C C C 25.16.040.B /

25.42 Dwelling, single-family C C C N C C 25.16.040.B
Group home C C N N C C 25.16.040.B /

25.42 Single-room occupancies N N N N N C
Homeless shelter N N N N N P
Recreation, Resource Preservation, Open Space, and Public Assembly Uses Amusement facility, indoors N N C C C N
Amusement facility, outdoors N N N C C N
Community facility N N N N N P
402
Ordinance No. 1416 Page 5
Commercial/Industrial District
(P=Permitted; A=Administrative Use Permit; C=Conditional Use Permit; N=Not Permitted)
OP PC-1 PC-2 PC-3 PC-4 SI
Special Use
Provisions
Day care center N A A A A N
Emergency shelters N P N N N P
Entertainment facility, indoor N N N P P N
Entertainment facility, outdoor N N N P P N
Institution, educational C C C N N C
Institution, general C N C N N C
Institution, religious C N C N N C
Open space (developed or natural) N P P N P N
Recreation facility, commercial N N P P P N
Recreation facility, private N N N P P N
Theater/auditorium N N P P N N
Utility, Transportation, Public Facility, and Communication Uses Commercial communication tower C C C C C C 25.16.040.C
Commercial parking lot C N N N N N
Public utility installation N N N N N P
Public facility (utility or service) N N N N N P
Utility facility N N C N N P
Retail, Service, and Office Uses
Accessory massage establishment P N P P P N 25.34.160
Adult entertainment N N N N N C 25.16.040.D
Ancillary commercial A P P P N A 25.16.040.E
Art gallery A P P P P C
Art studio A P P P P C
Bed and breakfast N A A A A N
Business support services N N N N P P
Cannabis Storefront retail N C C C C N 25.34.120
Cannabis testing and research laboratory N N N N N N 25.34.120 Convention and visitors bureau N N P N P N
Drugstore N P P P N N
Financial institution C P P P N N
Grocery store N P P P N N 25.16.040.F
Health club, gyms or studios N A P P P A
Hotel N A A A P N 25.34.070
Independent stand-alone massage N N P P N N 25.34.160
Liquor store N P P P N N
Liquor, beverage and food items shop N P P P P N
Medical, clinic P N P P N N
Medical, office P P P P N N
Medical, hospital N N N N N C
Medical, laboratory P N N N N P
Medical office, accessory N N N N N P 25.16.040.G
Medical, research facility P P N N N C
Mortuary N N N N N P
Office, professional P N P P P P
Office, local government P N N N N P
Office, travel agency P P P P P N
Outdoor sales N N A A A A
403
Ordinance No. 1416 Page 6
Commercial/Industrial District
(P=Permitted; A=Administrative Use Permit; C=Conditional Use Permit; N=Not Permitted)
OP PC-1 PC-2 PC-3 PC-4 SI
Special Use
Provisions
Personal services N P P P P N
Restaurant A A A A P A 25.16.040.E / H
Retail N P P P P N
Retail, bulky items N N N P P N
Spa N N P P P N
Time-share project N N N C C N
Veterinary clinics/animal hospitals A N A A N A
Pet boarding N A A A N A
Automobile and Vehicle Uses
Automotive rental agency N N N N P P
Automotive gasoline station N N C C N C 25.34.090
Automotive service facility N N C C N P 25.34.090
Automotive sales new and used (indoor) N N N N N A
Automotive sales new and used (outdoor) N N N N N C
Automotive sales of accessory parts and
supplies

N N N P P N
Vehicle storage facility N N N N N P 25.16.040.I
Industrial, Manufacturing, and Processing
Uses
Cannabis cultivation N N N N N N 25.34.120
Cannabis delivery N N N N N N 25.34.120
Cannabis distribution N N N N N N 25.34.120
Cannabis manufacturing N N N N N N 25.34.120
Industrial planned unit development N N N N N P
Light industrial and research and
development

N N N N N P
Maintenance facility N N N N N P
Pest control facility N N N N N P
Preparation of foodstuffs N N N N N P
Production of home and office decor
accessories

N N N N N P
Warehouse or storage facility N N N N N P
Temporary Uses See Section 25.34.080
1 The establishment may be permitted with an administrative use permit but may be elevated to a conditional use permit at the discretion of the ZA based on: parking, traffic, or other impacts.

SECTION 2. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code section 25.18.040 is hereby amended as follows:

25.18.040 Land Use and Permit Requirements
404
Ordinance No. 1416 Page 7
Table 25.18-1 (Use Matrix for Downtown Districts) identifies allowed uses and corresponding permit requirements for the downtown districts and all other provisions of this title. Descriptions/definitions of the land uses can be found in Chapter 25.99 (Definitions). The special use provisions column in the table identifies the specific chapter or section where additional regulations for that use type are located within this title.

Uses that are not listed are not permitted. However, the Commission may make a use determination as outlined in Section 25.72.020 (Use Determinations).

TABLE 25.18-1. USE MATRIX FOR DOWNTOWN DISTRICTS
P = use permitted by right
A = use requires administrative use permit
C = use requires approval of conditional use permit
N = use not permitted
Land Use Zone Special Use
D D-O DE DE-O Provisions
Residential Uses
Accessory dwelling unit P P P P 25.34.030
Assisted Living N N N C
Condominium C 1 C 1 C C 25.16.040.B
Dwelling, duplex C 1 C 1 C P 25.16.040.B
Dwelling, multifamily C 1 C 1 C P 25.16.040.B
Dwelling, single-family C 1 C 1 C N 25.16.040.B
Group home C 1 C 1 C N 25.16.040.B
Junior accessory dwelling unit P P P P 25.34.030
Home-based business P4 P4 P4 P4 25.34.020
Agriculture-Related Uses
Garden, private C 1 C 1 N P
Greenhouse, private N N C P
Horticulture, private N N C P
Recreation, Resources Preservation, Open Space, and Public Assembly Uses Club, private N N N C
Day care center C 1 C 1 N N
Day care, large family N N N P 25.10.040.F
Day care, small family N N N P
Institution, educational N N C C
Institution, general N N C C
405
Ordinance No. 1416 Page 8
Land Use Zone Special Use
D D-O DE DE-O Provisions
Institution, religious N N C C
Mechanical or electronic games, ≤ 4 P 1 P 1 P N
Mechanical or electronic games, ≥ 5 C 1, 2 C 1, 2 C N
Recreational facility, incidental N N N C 25.10.040.H
Recreation facility, private N N N P
Recreation facility, public N N N C
Retail, Service, and Office Uses
Accessory massage establishments P P P N 25.34.160
Ancillary commercial N N A N 25.16.040.E
Animal Clinic C1,6 C1,6 C1,6 N 25.34.210
Art gallery P P P A
Art studio P 1 P 1 A A
Book and card shops P P N N
Bed and breakfast N N C C
Cannabis Storefront retail C N C N 25.34.120
Cannabis testing and research laboratory N N N N 25.34.120 Clothing and apparel shops P P P N
Convention and visitor’s bureau P 1 P 1 C N
Drugstore P 1 P 1 N N
Financial institution P 1 P 1 C N
Furniture stores and home furnishings P P P N
Gift and accessories boutiques (including small
antiques) P P P N
Grocery store < 35,000 SF C 1 C 1 N N
Health club, gyms or studios C 1 ,
2 C 1 ,
2 C 2 N
Hotel C C C C
Independent stand-alone massage establishments P 1 P 1 C N 25.34.160 Jewelry shops P P P N
Liquor store P 1 P 1 N N
Liquor, beverage, and food items shop P 1 P 1 N N
Luggage shops P P P N
Medical, clinic P 1 P 1 P N
Medical, office P 1 P 1 P A5
Medical, hospital P 1 P 1 C C
Medical, laboratory N N P N
Mortuary C 1 C 1 N N
Office, professional P 3 P 3 P P3 25.28.040.C
406
Ordinance No. 1416 Page 9
Land Use Zone Special Use
D D-O DE DE-O Provisions
Office, local government P 1 P 1 P N
Office, neighborhood government N N N C
Office, travel agency P 3 P 3 P N 25.10.040.K
Outdoor sales A 1 A 1 A N
Personal services P P P N
Restaurant C 2 C 2 C 1 N 25.16.040.H
Retail P P P N
Retail, bulky items P 1 P 1 C N
Retail, Golf carts and neighborhood electric vehicles
(NEV) C N C N 25.34.190
Spa P P P C
Sundries shops (general merchandise) P P P N
Time-share project C 1 C 1 N N
Utility, Transportation, Public Facility, and
Communication Uses
Fire station C C C C
Commercial communication tower
C C C
Commercial parking lot P P C C 25.10.040.I
Office parking lot N N N C 25.10.040.L
Public service facility N N N C
Utility facility N N N C
Utility installation C C N N
Automobile and Vehicle Uses
Automotive rental agency P P C N
Automotive service station C C N N
Temporary Uses See Section 25.34.080
1 Uses prohibited along El Paseo facing ground floor frontages. 2 The establishment may be permitted with an administrative use permit but may be elevated to a conditional use permit at the discretion of the ZA based on parking, traffic, or other impacts.
3 Office professional uses along El Paseo facing ground floor frontages within the El Paseo Overlay District may be allowed subject to a Conditional Use Permit per Section 25.28.040 El Paseo Overlay District.
4 Home Occupation Uses are permitted in residential dwelling units in approved residential and mixed-use developments.
407
Ordinance No. 1416 Page
10 5. Medical Offices existing and operating with an appropriate City business license prior to 2023 are permitted by right to continue operating without requiring an Administrative Use Permit.

6. Use only permitted on properties with frontage along Highway 111.

SECTION 3. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 25.28.070 is hereby amended as follows:

25.28.070 Freeway Commercial Overlay Zone
A. Purpose and applicability. The purpose of the Freeway Commercial Overlay Zone (FCOZ) district is to provide optional standards and incentives for the development of a variety of commercial uses. Whenever the FCOZ has been added to a base zone, the owner/applicant may choose whether to use the optional FCOZ standards or the standards of the base zone. In order to obtain approval of uses only permitted in the FCOZ, the project must utilize FCOZ standards.

B. Conditional uses. Uses permitted by approved conditional use permit shall be as follows:

1. Restaurants, general, including drive-through restaurants.

2. Automobile service stations without regard to the required separation distance provisions per Section 25.34.090 (Automotive Service Stations).

3. Convenience stores.

4. Car washes.

5. Combinations of 2 or more of the above uses.

6. Hotel.

7. Commercial recreation and amusement establishments.

8. Personal storage.

9. Outdoor recreational vehicle and boat storage.

10. Automotive Sales New and Uses (Outdoor). Automotive Sales New and Used (Indoor) may be permitted by administrative use permit in accordance with Chapter

25.64. 408
Ordinance No. 1416 Page
11 C. Development standards. Projects proposed under this chapter shall be master planned and the master plan shall be approved by the Commission prior to any construction activity. The master plan approval is subject to the following:

1. Development of individual projects within the approved master plan shall be processed through the precise plan process.

2. Property to be master planned shall be at least 5 acres in size and shall have frontage on a designated arterial street.

3. Drive-up lanes and window facilities shall be designed in a manner that they are not visible from an arterial street.

4. Development standards shall generally be flexible to ensure efficient site planning and to foster the creation of attractive developments.

5. Automobile service stations shall comply with the requirements of Section 25.34.090 (Automotive Service Stations).

D. Required on-site parking. The required number of parking spaces for a combined development shall be cumulative for all proposed uses. The Commission may reduce the required parking where it is clearly demonstrated that a shared use will occur (i.e., a restaurant which serves a hotel), or with a showing of good cause, the Commission may increase the number of parking spaces required.

E. Setbacks. Setbacks shall be as prescribed in the base zone and/or automobile service stations pursuant to Section 25.34.090 (Automotive Service Stations).

F. Landscaping. All master planned projects approved through the FCOZ process shall provide a minimum of at least 30 percent landscaped open space, of which at least half of the common usable public space can include a picnic area, a dog park, or a kids land, as well as landscaped setback areas. With a showing of good cause, the Commission may decrease the minimum landscaped open space requirement. (Ord. 1324 § 7, 2017; Ord. 1303 § 5, 2016; Ord. 1302 § 4, 2016; Ord. 1259 § 1, 2013) SECTION 4: Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 25.34.120 is hereby amended as follows:

25.34.120. Cannabis Business and Personal Cultivation.

A. Purpose and intent. It is the purpose and intent of this section to regulate the commercial cultivation, manufacturing, testing and research, distribution, delivery, retail sale and personal cultivation, of medicinal cannabis and non-medicinal adult- use cannabis within the City of Palm Desert. This section is prepared in accordance with the Compassionate Use Act of 1996 ("CUA"), the Medical Marijuana Program Act ("MMP"), 409
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12 and the Medicinal and Adult-Use Cannabis Regulation and Safety Act ("MAUCRSA") (collectively, "state law"), which give local jurisdictions the authority to establish land use regulations related to the personal and commercial uses of cannabis. Nothing in this chapter shall be construed to: (1) permit persons to engage in conduct that endangers others or causes a public nuisance; (2) permit the use or cultivation of cannabis beyond the limits established in state law related to cannabis; or (3) permit any activity relating to the cultivation, processing, sale, or distribution of cannabis that is illegal under state law, generally. Nothing in this chapter shall be construed to prohibit primary caregivers and qualified patients to lawfully act under state law.

B. Definitions. For the purpose of this chapter, the following definitions shall apply:
"Applicant" means an owner that applies for a conditional use permit under this chapter. "Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this division, "cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the California Health and Safety Code.
"Cannabis products" means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients.
"City" means the City of Palm Desert.
"Commercial cannabis business" means any business which engages in the medicinal or adult-use commercial cannabis activity authorized by this Chapter. "Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.
"Daycare center" means any child day care facility other than a family day care home, and includes infant centers, preschools, extended day care facilities, and school-age child care centers.
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13 "Delivery" means the commercial transfer of cannabis or cannabis products to a customer. "Delivery" also includes the use by a retailer of any technology platform owned and controlled by the retailer.
"Distribution" means the procurement, sale, and transport of cannabis and cannabis products between entities permitted or licensed by the City and/or State of California.
“Dried flower” means all dead cannabis that has been harvested, dried, cured, or otherwise processed, excluding leaves and stems.
"Licensee" means the holder of any state issued license related to Commercial Cannabis Businesses, including, but not limited to, licenses issued under Division 10 of the California Business and Professions Code.
"Owner" means any of the following:
(1) a person with an aggregate ownership interest of 20 percent or more in the person applying for the permit, unless such interest is solely a security, lien, or encumbrance;
(2) the chief executive officer of a nonprofit or other entity; (3) a member of the board of directors of a nonprofit; or (4) an individual who will be participating in the direction, control, or management of the person applying for the permit.
“Non-Storefront retailer” is a business that is closed to the public and provides cannabis or cannabis product to customers solely by means of a delivery service which the retailer owns and controls.
"Permittee" means any person granted a conditional use permit under this chapter. "Person" means any individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular.
"Private residence" means a house, an apartment unit, mobile home, or other similar dwelling unit.
"Storefront Retail cannabis business" or "storefront retailer" or "Cannabis Storefront retail ” means a business that sells cannabis or cannabis products to customers.

Storefront retailers may also deliver cannabis or cannabis products to customers. "Sell," sale," and "to sell" include any transaction whereby, for any consideration, title to cannabis is transferred from one person to another, and includes the delivery of cannabis or cannabis products pursuant to an order placed for the purchase of the same and 411
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14 soliciting or receiving an order for the same, but does not include the return of cannabis or cannabis products by a permittee or licensee to the permittee or licensee from whom such cannabis or cannabis product was purchased.
"State license" means a state license issued under Division 10 of the California Business and Professions Code.
"Youth center" means any public or private facility that is primarily used to host recreational or social activities for minors, including, but not limited to, private youth membership organizations or clubs, social service teenage club facilities, video arcades, or similar amusement park facilities.

C. Conditional use permit required.

1. The City may authorize a total of 6 conditional use permits for retail cannabis businesses to operate in the City of Palm Desert. No more than 1 retail cannabis business may locate on El Paseo, which must be located east of Larkspur Lane. If applications are submitted for a greater number of conditional use permits than are permitted by this section, selection among the applicants shall be made by a process, and subject to criteria, established by City Council resolution. Conditional use permits for all other commercial cannabis businesses shall be issued in accordance with the zoning and separation requirements established in this section. Prior to initiating operations and as a continuing requisite to operating a commercial cannabis business in the City, an applicant must obtain and maintain a valid conditional use permit, regulatory permit as required under Chapter 5.101, and a state license for each commercial cannabis business use authorized under the conditional use permit. Unless otherwise stated in this section, the provisions found in Section 25.72.050 Conditional Use Permit, shall apply.

2. Building permits for improvements associated with a commercial cannabis business may be issued once an applicant has obtained a conditional use permit and regulatory permit; however, a certificate of occupancy to operate will not be issued until said commercial cannabis business has obtained and provided proof of a state license for each commercial cannabis business use authorized under the conditional use permit.

3. Changes in state license type, business owner, or operation will require an amendment to the approved conditional use permit.

4. A cannabis delivery service business with a physical address outside the City is not required to obtain a conditional use permit under this chapter, but is required to obtain a City business license.
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15 5. This section does not apply to cannabis possession or use, as allowed by state law. Regulations regarding personal use can be found in Chapter 8.38.

D. Permitted locations and standards.

1. Commercial cannabis businesses may operate in the City's commercial, industrial, office, and downtown zoning districts as identified in Section 25.16.030 "Allowed Land Uses and Permits Requirements" and Section 25.18.040 "Land Use and Permit Requirements" of the Palm Desert Municipal Code, with the exception of the City's Downtown Core Overlay District, upon issuance of a conditional use permit, regulatory permit, and state license.
a. Storefront Retailers are conditionally permitted in the Planned Commercial ("PC") -1 District, PC-2 District, PC-3 District, PC-4 District, and Downtown (D) District. No more than 6 conditional use permits will be issued for retail cannabis businesses. No more than 3 retail cannabis businesses may locate on any single street, and no more than 1 retail cannabis business may locate on El Paseo, which must be located east of Larkspur Lane.
b. Distribution businesses are conditionally permitted in conjunction with a storefront retailer and the distribution activities shall be limited to the physical location that both uses occupy.

2. Commercial cannabis businesses shall conform to the following separation requirements:
a. No conditional use permit shall be issued to a storefront retailer that is located within 1,500 feet of another approved commercial cannabis business.

No more than 3 cannabis retailers will be permitted to operate on a single street.
b. A cannabis business within the Service Industrial zoning district shall be separated by 1,500 feet from another approved cannabis business. c. No conditional use permit will be issued for commercial cannabis business located within 1,000 feet of a school providing instruction in kindergarten or any grades 1 through 12, daycare center, or youth center that is in existence at the time the license is issued.
d. All separation requirements will be measured from the outer extents of the commercial cannabis businesses lease space to the outer extents of another commercial cannabis businesses lease space, or to the property line of a school, daycare center and youth center.
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16 3. Conditional use permit submittal requirements. In addition to the requirements listed in the conditional use permit, all commercial cannabis business applicants shall submit the following information:
a. Exterior façade. Renderings of the business façade shall be provided and reviewed as part of the conditional use permit. Building façade plans shall include renderings of the exterior building elevations for all sides of the building. All building façades shall be tastefully done and in keeping with the high architectural quality and standards of the City of Palm Desert. Because state law limits certain advertising, the business façade and building signs shall be compatible and complimentary to surrounding businesses and shall add visual quality to the area.

E. Grounds for permit denial, suspension, and revocation. Any conditional use permit issued pursuant to the provisions of this section may be denied, suspended, or revoked by the Planning Commission upon receiving satisfactory evidence that the applicant or permittee or owner, its agent(s), employee(s), or any person connected or associated with the applicant or permittee:

1. Has knowingly made false statements in the applicant's application or in any reports or other supporting documents furnished by the applicant;

2.Has failed to maintain a valid state license;

3. Has failed to comply with any applicable provision of the Palm Desert Municipal Code, including, but not limited to, this chapter, the City's building, zoning, and health and public safety regulations;

4. Has failed to comply with any condition imposed on the conditional use permit; or

5. Has allowed the existence of or created a public nuisance in violation of the Palm Desert Municipal Code.

6. No conditional use permit will be issued where commercial cannabis businesses are prohibited by covenants, conditions, and restrictions (CC&Rs) that clearly prohibit such use. For buildings located in any area governed by CC&Rs, the applicant must additionally submit a statement certifying that any applicable CC&Rs do not prohibit the use for which the applicant is seeking approval.
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17 F. Personal cultivation. City residents are permitted to cultivate cannabis on private residential property for personal use and in accordance with MAUCRSA, subject to the following standards:

1. Outdoor cultivation.
a. Cultivation for personal use is only permitted on private residential property developed with at least 1 residential dwelling unit. No more than 6 plants are permitted to be cultivated at a private residence. Property owners retain the ability to prohibit renters from cultivation and any renter choosing to cultivate shall first obtain written authorization from the property owner to cultivate on site.
b. Outdoor cultivation is limited to rear and side yard areas and only if screened by a solid block wall no less than 6 feet in height. c. Outdoor cultivation shall not be visible from surrounding public streets or adjoining properties. As such, cannabis plants may not grow above the height of the property line walls unless screened by another approved screening method.
d. Outdoor cultivation within 600 feet of a school, daycare center, or youth center is prohibited.

2. Indoor cultivation.
a. Indoor cultivation must have adequate ventilation. Structural, ventilation, electrical, gas, or plumbing changes to accommodate indoor cultivation are required to obtain a building permit from the City's Building and Safety Department.
b. The use of volatile solvents, as defined in Section 11362.3d of the California Business and Professions Code, including, but not limited to, butane, propane, xylene, gasoline, kerosene, and other dangerous and poisonous toxins or carcinogens, are prohibited for indoor cultivation at a private residence.

G. Application fee and reimbursement agreement. At the time an applicant submits an application under this section, the applicant shall also supply an application fee in an amount to be determined by resolution by the City Council, an executed reimbursement agreement on a form provided by the City to fully reimburse the City for all costs, expenses, and fees, including, but not limited to, attorney fees and consultant fees, incurred by the City related to the commercial cannabis business, and a deposit in an amount as provided for in the reimbursement agreement terms.

H. Prohibited operations. Any commercial cannabis business that does not have: (1) an approved conditional use permit; (2) a regulatory permit required under this code; and (3) a state license is expressly prohibited in all City zones and is hereby declared a public 415
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18 nuisance that may be abated by the City and is subject to all available legal remedies, including, but not limited to, civil injunctions.

I. Violations and penalties.

1. In addition to any other remedy allowed by law, any person who violates a provision of this chapter is subject to criminal sanctions, civil actions, administrative penalties, permit suspension, and permit revocation, if applicable.

2.Violations of this chapter constitute an infraction or misdemeanor and may be enforced by any applicable law.

3.Violations of this chapter are hereby declared to be public nuisances.

4.Each person is guilty of a separate offense each day a violation is allowed to continue and every violation of this chapter shall constitute a separate offense and shall be subject to all remedies.

5.All remedies prescribed under this chapter shall be cumulative and the election of one or more remedies shall not bar the City from the pursuit of any other remedy for the purpose of enforcing the provisions hereof.

SECTION 5: Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 25.68.020 is hereby amended as follows:

25.68.020 Design Review Required
A. Purpose and applicability. Design review allows for specified projects to be reviewed by the ARC to ensure that design objectives of Palm Desert as specified in the General Plan are achieved. Design review is required, as follows:

1. Prior to permit issuance. No plan, elevation for buildings or structures, or alterations shall be approved and no permit shall be issued for any building, structure, sign, or other development of property or appurtenances or alterations thereto, except in single-family residential districts and developments subject to Objective Design Standards requirements of Chapter 25.42, without review and approval by the ARC.

2. The ARC shall review all plans submitted with applications for moving buildings within or into the City. Photographs shall be included with the application showing all elevations, the structure proposed to be moved, the proposed site, and the buildings adjacent to the proposed site. The ARC shall determine whether the building proposed to be moved will fit harmoniously into the neighborhood wherein it is to be located. It may approve, approve with conditions, or disapprove the issuance of a permit to move such building.
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19 3. The ARC shall review all plans for new two-story residential dwellings and second story additions within the R-2 Zoning District as required by Table 25.10-3 (Residential Zoning District Development Standards) to ensure second stories are compatible with surrounding homes including massing, materials, and considers privacy of adjacent neighbors. The ARC design review shall include the following:
a. The mass and bulk of the design should be reasonably compatible with the predominant neighborhood pattern. New construction should not be disproportionately larger than, or out of scale with, the neighborhood pattern in terms of building forms, roof pitches, eave heights, ridge heights, and entry feature heights. b. Placement of windows and doors should have minimal impact to the neighboring property.
c. Line of sight analysis shall be provided.
d. To mitigate privacy impacts of new two-story homes and additions, tree and/or shrub planting is required.
i. Applicability. These requirements shall apply to new two-story homes, twostory additions, and/or new windows on existing two-story homes that increase privacy impacts on neighboring residents.
e. Planting plan. Proposals for new two-story homes, two-story additions, and/or new windows on existing two-story homes shall be accompanied by a planting plan which identifies the location, species and canopy diameter of existing and proposed trees or shrubs to meet the requirements.

SECTION 6. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 25.99.020 Land Use Definitions is hereby amended with the following removals and additions to the existing section:

Automotive sales new and used (outdoor/indoor). A commercial establishment selling and/or renting new and/or used automobiles, boats, vans, campers, trucks, mobile homes, recreational and utility trailers, motorized farm equipment, motorcycles, mopeds, snowmobile and jet skis. The sales of all automotives can take place outdoors or indoors.

These uses include parts for sale and repair shops only when part of a dealership selling new vehicles on the same site. These uses do not include service stations, which are separately defined.

Automotive sales new and used (indoor). A commercial establishment selling and/or renting new and/or used automobiles, boats, vans, campers, trucks, mobile homes, recreational and utility trailers, motorized farm equipment, motorcycles, mopeds, snowmobile and jet skis. The sales of all automotives occurs only indoors within an 417
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20 enclosed commercial building. Displays located outside of a building are not included.

These uses include parts for sale and repair shops only when part of a dealership selling new vehicles on the same site. These uses do not include service stations, which are separately defined.

Automotive sales new and used (outdoor). A commercial establishment selling and/or renting new and/or used automobiles, boats, vans, campers, trucks, mobile homes, recreational and utility trailers, motorized farm equipment, motorcycles, mopeds, snowmobile and jet skis. The sales of all automotives can take place outdoors or indoors.

These uses include parts for sale and repair shops only when part of a dealership selling new vehicles on the same site. These uses do not include service stations, which are separately defined.
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Palm Desert City CouncilAugust 22, 2024

Palm Desert City Council
August 22, 2024