Agenda packet, regular meeting — Palm Desert City Council, October 24, 2024 (part 3 of 3)

ADDENDA CONFIRMATION
Addendum #1
Confirmed Aug 30, 2024 7:26 PM by Brent Fries

QUESTIONNAIRE

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

A. Cover Letter

1. This letter should briefly introduce the firm, summarize the firm’s general qualifications, include an executive summary of the specific approach which will be used to deliver the work scope; and identify the individual(s) name, address and phone number authorized to negotiate Agreement terms and compensation.

B. Experience and Technical Competence

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

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

C. Firm Staffing and Key Personnel

1. Staffing: Provide the number of staff to be assigned to perform the Services and the names/discipline/job title of each as well as your firm’s capacity to provide additional personnel as needed. 582
[VINTAGE LANDSCAPE] RESPONSE DOCUMENT REPORT
RFP No. 2024-RFP-132
Parks And Landscape Enhancement Project
[VINTAGE LANDSCAPE] RESPONSE DOCUMENT REPORT
Request For Proposal - Parks And Landscape Enhancement Project

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

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

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

D. Proposed Method to Accomplish the Work

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

City_of_Palm_Desert_-_Parks_and_Landscape_Enhancement_Services.pdf

2. Fee Proposal*
The fee proposal shall include hourly rates for all personnel for “Additional Work” (as such term is defined in the proposed Agreement attached herein). Please provide hourly rates for the following positions at a minimum: Irrigator, Foreman, Laborer, Supervisor.

City_of_PD_Enhancement_Contract_-_Labor_Costs.pdf

3. Non-Collusion Declaration*
The undersigned declares:

I am an authorized representative of my company, the party making the foregoing Bid, to certify the following.

The Bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The Bid is genuine and not collusive or sham. The Bidder has not directly or indirectly induced or solicited any other Bidder to put in a false or sham bid. The Bidder has not directly or indirectly colluded, conspired, connived, or agreed with any Bidder or anyone else to put in a sham bid, or to refrain from bidding. The Bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the Bid Price of the Bidder or any other Bidder, or to fix any overhead, profit, or cost 583
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Parks And Landscape Enhancement Project
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Request For Proposal - Parks And Landscape Enhancement Project

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element of the Bid Price, or of that of any other Bidder. All statements contained in the Bid are true. The Bidder has not, directly or indirectly, submitted his or her Bid Price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose.

Any person executing this declaration on behalf of a Bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the Bidder.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Confirmed

4. Enter your valid CA Contractors State License Board (CSLB) number* Please enter your License Number here. This will be verified against the state database. 647984
Click to Verify Value will be copied to clipboard

5. Enter your California Department of Industrial Relations (DIR) Registration number* Please enter your Public Works Contractor DIR Number. This will be verified against the state database. 1000001926
Click to Verify Value will be copied to clipboard

6. Type of Business*
S Corporation (if corporation, two signatures are required)

7. Litigation*
Provide litigation history for any claims filed by your firm or against your firm related to the provision of Services in the last five (5) years (or type "N/A").
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Parks And Landscape Enhancement Project
[VINTAGE LANDSCAPE] RESPONSE DOCUMENT REPORT
Request For Proposal - Parks And Landscape Enhancement Project

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N/A

8. Changes to Agreement*
The City standard professional services agreement contract is included as an attachment herein. The Proposer shall identify any objections to and/or request changes to the standard contract language in this section of the proposal (or type "N/A"). If you are identifying changes here ALSO upload a copy of the redlined Language/Agreement with your Proposal. Changes requested may effect theCity's decision to enter into an Agreement.

N/A

9. No Deviations from the RFP*
In submitting a proposal in response to this RFP, Proposer is certifying that it takes no exceptions to this RFP including, but not limited to, the Agreement. If any exceptions are taken, such exceptions must be clearly noted here, and may be reason for rejection of the proposal. As such, Proposer is directed to carefully review the proposed Agreement and, in particular, the insurance and indemnification provisions therein (or type "N/A").

Maximum response length: 5000 characters
N/A

10. Project Team Resumes*
Submit resumes of all key personnel/support staff that will produce work product for the Services. Describe their qualifications, education, and professional licensing.

City_of_Palm_Desert_-_Team_Resume_and_Qualifications.pdf

11. List the Signatory(s) Authorized to Sign and Bind an Agreement.* (If two (2) signatures are required, include the following information for both signatories) A. Full Name
B. Title
585
[VINTAGE LANDSCAPE] RESPONSE DOCUMENT REPORT
RFP No. 2024-RFP-132
Parks And Landscape Enhancement Project
[VINTAGE LANDSCAPE] RESPONSE DOCUMENT REPORT
Request For Proposal - Parks And Landscape Enhancement Project

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C. Physical Business Address
D. Email Address
E. Phone Number
A. Kyle Gritters
B. CEO
C. 78755 Darby Rd, Bermuda Dunes, CA 92203
D. [email protected]
E. (805) 720-7269
A. David Smith
B. President
C. 78755 Darby Rd, Bermuda Dunes, CA 92203
D. [email protected]
E. (760) 772-3673

12. Certification of Proposal: The undersigned hereby submits its proposal and, by doing so, agrees to furnish services in accordance with the Request for Proposal (RFP), and to be bound by the terms and conditions of the RFP.* Confirmed
586
Olive- Crest
City of Palm Desert
Parks and Landscape
Enhancement Services
Company Profile & Qualifications
for Landscape Services
1 587
August 30th, 2024
Brad Chuck
City of Palm Desert
RE: Parks and Landscape Enhancement Services
Thank you for the opportunity to submit our proposal for landscape enhancement projects for City of Palm Desert. Vintage is incredibly appreciative to be part of this process. As shown during the tenure of our Landscape Maintenance Contract, Vintage has the knowledge, expertise and experience to maintain your landscape environment and would appreciate the opportunity to provide services to further enhance the beauty, functionality and value of the City of Palm Desert.

Vintage Associates is a local family-owned company currently operated by the second generation who is personally involved in every account. Vintage is unique in the landscape industry because of the complete range of services offered to our customers. Subsidiary branches of Vintage Associates include:
• Vintage Landscape with Tree Division and Water Management • Vintage Nursery
• Vintage Outdoors (Landscape Design, Enhancements & Construction) The company profile attached includes detailed information about Vintage Associates, key personnel, and service practices.

Sincerely,
Kyle Gritters
CEO
C.C. David Smith
2 588
Table of Contents

1. Vintage Associates Company History. . . . . . . . . . . . . . . . . . . . . . . . . [Pg. 4]

2. Experience and Technical Competence. . . . . . . . . . . . . . . . . . . . . . [Pg. 5-6]

3. References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .[Pg. 7-8]

4. Company’s Organization & Qualifications . . . . . . . . . . . . . . . . . [Pg. 10-16]

5. Firm Staffing and Key Personnel. . . . . . . . . . . . . . . . . . . . . [Pg. 11, 12 & 15]

6. Equipment List. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Pg. 17-18]

7. Labor Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .[Pg. 19]

8. Proposed Method to Accomplish Work. . . . . . . . . . . . . . . . . . . .[Pg. 20-21] 3 589
History of Vintage Associates
Vintage Associates is the Coachella Valley’s only full-service landscape resource company. Vintage started business in the Coachella Valley as Steven Burt and Associates in 1992. The company’s first maintenance contract began in 1992 with the addition of Silver Sands Racquet Club in Palm Desert, where we worked for over twenty years. Additionally, the partners purchased Vintage Nursery on Darby Road in Bermuda Dunes in 1992. With the addition of the nursery, the company could provide desert acclimated shrubs and trees to their customers and other contractors.

In 1994, Al Hollinger joined Steve Burt and in 1995 started TreeRite – Certified Arborists.

Al emphasized following ISA standards with TreeRite.

In 2001, Vintage Associates created a construction division which has morphed into Vintage Outdoors, to help customers enhance their landscape through beautification projects, irrigation upgrades, and more.

In 2002, Steve Burt invited Greg Gritters to work with him to help him grow his company and lend his corporate experience. Greg came with almost 25 years of experience in energy development and operations as an engineer working for the Unocal oil company.

In 2009, in response to the serious water issues facing the Coachella Valley, Greg achieved certification by the Irrigation Association and became a registered EPA WaterSense Partner. The WaterRite division was created to help homeowner associations, commercial accounts and homeowners optimize their irrigation systems and reduce their water bills following the implementation of tiered water rates by the Coachella Valley Water District. In 2022 the company achieved Expert Water Management status through CLCA.

In 2015, Kyle Gritters relocated his family to the Coachella Valley to start the succession plan of his father Greg. With more design experience than operations, Kyle spent the first three years working in every field position of the company.

At the end of 2018 David Smith, the nephew of the founding partners of the company, joined Kyle as a partner to further strengthen the Nursery and Construction divisions of the company.
4 590
Vintage Associates’ experience in the Coachella Valley is unrivaled. Vintage team members comprise of certified landscape professionals in the horticultural field with over 100 years of combined experience, with dedication to our customers within the Coachella Valley. The experience held by Vintage Associates includes the following:
• 30 years of experience providing Landscape Maintenance to HOAs • 20 years of experience providing Landscape Maintenance to Municipalities • 30 years of experience providing Landscape Construction & Enhancement Services • Expert Level Water Managers from CLCA in the Inland Empire • Emphasis on natural pruning of shrubs and professional tree care to enhance the beauty and ensure the landscape looks like the architect designed • History of maintaining long-term relationships with customers (over 20 years) and our employees (30 years)
Experience and Technical Competence
5 591
Certified Personnel
• BS Ornamental Horticulturist – 1
• AA Turfgrass Management – 2
• Certified Arborists – 6
• ISA Tree Risk Assessor – 2
• State Licensed Qualified Pesticide Applicators – 11
• Water Management – CLCA Expert Manager Status
• Certified Landscape Irrigation Auditors – 1
• Certified Water Managers – 2
• Certified Irrigation Technician – 1
• Certified Equipment Operator – 4
• Maxicom and Site control operators – 5
• College of the Desert – Certificate of Achievement
(Turfgrass, Pesticide Management, Arborist, Landscape & Irrigation) – 4
6 592
References
Maintenance
Desert Horizons Country Club – 23 years
P.O. Box 12710 Palm Desert, CA 92210
Association General Manager: Victor Santos Cisneros
(760) 340-5501 ext. 103
Indian Wells Tennis Gardens – 23 years
78200 Miles Avenue Indian Wells, CA 92210
Director of Facilities – Dave Sahl
(760) 200-8461
PGA West Fairways – 21 years
The Management Trust
80265 Signature Way La Quinta, CA 92253
(760) 862-6334
Andalusia – 17 years
The Management Trust
81570 Carboneras La Quinta, CA 92253
Association Manager: Kari Martin
(760) 777-1009
City of Indian Wells – 16 years
44-950 Eldorado Dr. Indian Wells, CA 92210
Field Manager: Mihai Dan
(760) 777-7621
Santa Rosa Cove – 23 years
49-991 Eisenhower La Quinta, CA 92253
Association Manager: Dave Scott
(760) 777-7621
7 593
References
Construction and Enhancements
Sensei Porcupine Creek (Current)
Stephen Sampson | (530) 304-9788
 Installation of all Plant & Tree material,
Irrigation, Palms and Boulders
Coachella Lakes (Current)
Jeff Coulter | (480) 703-0631
 Landscape Refresh and Irrigation Retrofit
Chaparral Country Club (Current)
Dave Capra |
 Berm Reduction and Irrigation Retrofit
The Garden Fellowship Church (Current)
Christian Sly | (760) 470-0472
 New Landscape Installation
8 594
9 595
Vintage Corporate Organization
Greg Gritters
CFO
David Smith
President
Rick Valdez
Outdoors Manager
Kyle Gritters
CEO
Jasmine Meza
HR Manager
Heather Kambe
Employee Investment
Al Hollinger
Vintage Chief
Octavio Garcia Employee/Business
Development
Joe Elkins
Finance & BS
Leo Meza
Branch Manager
Rafael Esquivel
Branch Manager
Bruce Brown
Branch Manager
Cesar Tejeda
Nursery Supervisor
10 596
Greg Gritters
CFO
• BS Chemical Engineering, USC
• MBA, Thunderbird School of Management
• QAL, Certified Water Manager
• 25 years International Asset and Project
Management
• 22 years Experience in Landscape Industry
Kyle Gritters

CEO/PARTNER
• BA Applied Design
• 9 years Experience in the Landscape Industry, QAL
David Smith

PRESIDENT/PARTNER
• BS Business Administration
• 26 Years experience in the landscape industry
• ISA Certified Arborist, ISA Tree Risk Assessment
Qualified
11 597
Alan Hollinger
Chief Horticulturalist
• BS Ornamental Horticulture, Cal Poly
Pomona
• QAL, Certified Arborist, Instructor College
of the Desert
• 36 years experience
Rafael Esquivel
Account Manager
• COD Certified Landscape & Irrigation
• QAL
• ISA Certified Arborist
• 31 years of experience
Bruce Brown
Account Manager
• AS in Turf Grass Management
• QAL
• ISA Certified Arborist
• 31 years of experience
Leo Meza
Account Manager
• AA Turfgrass Management
• QAL
• ISA Certified Arborist
• ISA Tree Risk Assessment Qualification
• IQ4 Expert
• 21 years of experience
HOA Proposal 12 598
TreeRite
Recognized Leaders in Arboriculture:
- Big Horn Country Club
- PGA West Fairways
- Indian Wells Tennis Gardens
- Sensei Porcupine Creek
Arborists on Staff:

Al Hollinger, ISA Certified Arborist
Leo Meza, ISA Certified Arborist, Tree Risk Assessor
David Smith, ISA Certified Arborist, Tree Risk Assessor Bruce Brown, ISA Certified Arborist
Rob Downing, ISA Certified Arborist
Rafael Esquivel, ISA Certified Arborist
Equipment:
• 4 Boom trucks (2@70’ and 1@60’)
• 5 Vermeer chippers
• Stump Grinder
13 599
14 600
Vintage Outdoors
Rick Valdez
Construction Manager
• 30 years of Landscape Construction and
Installation Services
Brent Fries
Enhancement Manager
• Landscape Design and Enhancement
Services
Luis Manzo
Project Manager
Daniel Lara
Project Manager
15 601
Vintage Outdoors
30 Full-Time Employees
Services Provided:
- Landscape Irrigation Audits, Repairs and Installation - Tree and Shrub Planting
- Turf Conversions
- Turf Preparation and Installation
- Landscape Improvements & Beautification
- Landscape Design & Renderings
- Artificial Turf Installation
- Concrete Mow Curb Installation
- Tree and Palm Removal, Relocation and Installation
- Large Construction Installation Projects
Operating Equipment:
- Sod Cutter
- Trencher
- Mini Excavator
- Compact Track Loader (Skid Steer)x2
- Kubota Utility Tractor
16 602
Vintage Landscape Equipment
Boom Truck
Supervisor Truck
Dump Truck
17 Greenwaste Truck
Chipper truck
Irrigator Truck
603
Vintage Landscape Equipment
Sod Cutter
18 Kubota Mini Excavator Kubota Utility Tractor
Trencher
Kubota Mini Track Loader CAT Skid Steer
604
19 Labor Costs for Extra Work
Supervisor $55.00/hr
Irrigator $45.00/hr
Foreman $45.00/hr
Laborer $35.00/hr
Equipment Operator $50.00/hr
605
20 Proposed Methods to Accomplish Work
When it comes to Project Management, our Landscape Professionals possess the knowledge and organization to meet the schedule of tasks and deadlines. Vintage Associates’ main goal is to conduct our work in a, safe, professional and efficient manner.

Below are some aspects of how we manage our projects:
- Assess the Project with the team. Identify the right Supervisor / Project Manager - Identification of Risks or Challenges
- Create Project Blueprint (Scope, Budget, Timeline, etc.) - Job walks before and after Project
- Open and honest communication internally and with customer - Documentation from Start to Finish
- Daily Check-ins with Supervisor performing the Project - Encourage employees to be Innovative and voice New Ideas - Use of Project Management applications to stay Organized and on Schedule 606
Example of Project Management Tool
607
Labor Costs for Extra Work
Supervisor $55.00/hr
Irrigator $45.00/hr
Foreman $45.00/hr
Laborer $35.00/hr
Equipment Operator $50.00/hr
608
9 609
Certified Personnel
• BS Ornamental Horticulturist – 1
• AA Turfgrass Management – 2
• Certified Arborists – 6
• ISA Tree Risk Assessor – 2
• State Licensed Qualified Pesticide Applicators – 11
• Water Management – CLCA Expert Manager Status
• Certified Landscape Irrigation Auditors – 1
• Certified Water Managers – 2
• Certified Irrigation Technician – 1
• Certified Equipment Operator – 4
• Maxicom and Site control operators – 5
• College of the Desert – Certificate of Achievement
(Turfgrass, Pesticide Management, Arborist, Landscape & Irrigation) – 4
6 610
Vintage Corporate Organization
Greg Gritters
CFO
David Smith
President
Rick Valdez
Outdoors Manager
Kyle Gritters
CEO
Jasmine Meza
HR Manager
Heather Kambe
Employee Investment
Al Hollinger
Vintage Chief
Octavio Garcia Employee/Business
Development
Joe Elkins
Finance & BS
Leo Meza
Branch Manager
Rafael Esquivel
Branch Manager
Bruce Brown
Branch Manager
Cesar Tejeda
Nursery Supervisor
10 611
Greg Gritters
CFO
• BS Chemical Engineering, USC
• MBA, Thunderbird School of Management
• QAL, Certified Water Manager
• 25 years International Asset and Project
Management
• 22 years Experience in Landscape Industry
Kyle Gritters

CEO/PARTNER
• BA Applied Design
• 9 years Experience in the Landscape Industry, QAL
David Smith

PRESIDENT/PARTNER
• BS Business Administration
• 26 Years experience in the landscape industry
• ISA Certified Arborist, ISA Tree Risk Assessment
Qualified
11 612
Alan Hollinger
Chief Horticulturalist
• BS Ornamental Horticulture, Cal Poly
Pomona
• QAL, Certified Arborist, Instructor College
of the Desert
• 36 years experience
Rafael Esquivel
Account Manager
• COD Certified Landscape & Irrigation
• QAL
• ISA Certified Arborist
• 31 years of experience
Bruce Brown
Account Manager
• AS in Turf Grass Management
• QAL
• ISA Certified Arborist
• 31 years of experience
Leo Meza
Account Manager
• AA Turfgrass Management
• QAL
• ISA Certified Arborist
• ISA Tree Risk Assessment Qualification
• IQ4 Expert
• 21 years of experience
HOA Proposal 12 613
TreeRite
Recognized Leaders in Arboriculture:
- Big Horn Country Club
- PGA West Fairways
- Indian Wells Tennis Gardens
- Sensei Porcupine Creek
Arborists on Staff:

CITY OF PALM DESERT

MAINTENANCE SERVICES AGREEMENT

1. Parties and Date. This Agreement is made and entered into this 1st day of December, 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 Vintage Landscape, a Corporation, with its principal place of business at 78755 Darby Road, Bermuda Dunes, CA 92203 ("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:

Parks and Landscape Enhancement Project
Project No. CPK00003
(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 December 1, 2024, to June 30, 2027, 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 2 additional oneyear 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 617
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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 each Task Order 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 Brad Chuck, Landscape Supervisor, 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 Kyle Gritters, CEO, 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 618
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uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the 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 and Liquidated Damages. 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. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of Two-Hundred and Fifty Dollars ($250.00) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

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.
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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 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 620
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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 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.
a) Liability arising from the theft, dissemination
and/or use of confidential or personally identifiable information; including credit monitoring and regulatory fines arising from such theft, dissemination, or use of confidential information. b) Network security liability arising from the
unauthorized use of, access to, or tampering with computer systems. c) Liability arising from the failure of technology
products (software) required under the contract for Vendor to properly perform the services intended.
d) Electronic Media Liability arising from personal
injury, plagiarism or misappropriation of ideas, domain name infringement or improper deeplinking or framing, and infringement or violation of intellectual property rights. e) Liability arising from the failure to render
professional services.
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If coverage is maintained on a claims-made basis, Contractor shall maintain such coverage for an additional period of three (3) years following termination of the Agreement. (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. (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 622
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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.
(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 623
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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 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 624
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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.

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 625
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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 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 maximum compensation for Services to be provided pursuant to each approved Task Order shall be set forth in the relevant Task Order. The total compensation, in the aggregate, shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) 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 626
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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.

3.3.2.1 Retainer. From each approved progress estimate, five percent (5%) will be deducted and retained by the City, and the remainder will be paid to Contractor. All Agreement retainage shall be released and paid to the Contractor and subcontractors pursuant to California Public Contract Code Section 7107. Contractor shall furnish City with labor and material releases from all subcontractors performing work on, or furnishing materials for, the work governed by this Agreement prior to final payment by City.

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” 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 627
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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 Conflict of Interest. The Contractor covenants that any and all relationships with construction firms that may submit bids for projects developed under this agreement will require full disclosure of any direct or indirect conflicts of interest, financial interests, relationships, and the nature of any relationships with any related project bid submitters; and that any violation of this provision may result in the immediate termination of the Agreement

3.4.3 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.

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

3.5 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:
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Contractor: Vintage Landscape
78755 Darby Road
Bermuda Dunes, CA 92203
ATTN: Kyle Gritters, CEO
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
ATTN: Brad Chuck, Landscape Supervisor
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.

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 629
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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, 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.
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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 VINTAGE LANDSCAPE
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

VINTAGE LANDSCAPE, A CORPORATION
By:

Kyle Gritters
CEO
By:

David Smith
Secretary
647984
Contractor’s License Number and
Classification
1000001926
DIR Registration Number (if applicable)
City Clerk QC: _____
Contracts QC: _____
Insurance:
_____
Initial Review
_____
Final Approval
_____
Bonds
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EXHIBIT “A”

SCOPE OF SERVICES
The Proposer to be knowledgeable in the installation, repair, and maintenance of the following park and landscape items:
 Landscape and Irrigation maintenance, repair, and installation  Sod preparation and installation
 Topdressing of sports turf
 Park amenities material installation (sand volleyball courts, baseball infields, etc.)  Minor playground repairs
 Park site furnishing repairs and installation
 Medians landscape improvements
 Assessment Districts improvements
 Tree and shrub planting
 Mow curb and related concrete repairs
 Installation of cobble and inorganics
 Proper traffic control as defined in the WATCH handbook  Small scale landscape projects
The scope of services is not limited to the items listed above. In addition, more detailed work may be required, such as installation and programming of Smart Controllers, troubleshooting faulty irrigation wires, repairing and programming two-wire irrigation systems, leveling and grading, and other specialty work associated with park and landscape maintenance The City intends to award the contract as a 3-year agreement with an option of (2) one-year extensions, subject to funding availability and City Council approval. The Agreement shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) per fiscal year for performance of said Services.

No Services shall be performed by the Contractor unless authorized by the City and by a fully executed Task Order.
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EXHIBIT “B” TASK ORDER FORM SAMPLE
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EXHIBIT “B” TASK ORDER FORM SAMPLE
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EXHIBIT “C”

COMPENSATION
In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be increased or reduced each year at the time of renewal, but any increase shall not exceed the Consumer Price Index, All Urban Consumers, Los Angeles-Riverside-Orange Counties. The City and Contractor may review the CPI on an annual basis and recommend adjustments to the City Manager or City Council for approval. Any increase shall not exceed the Consumer Price Index.

The maximum compensation for Services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The total compensation, in the aggregate, shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) without written approval of the City Council or City Manager, as applicable.

Pricing schedule is as follows:

Position Hourly Rate
Irrigator $45.00
Foreman $45.00
Laborer $35.00
Equipment Operator $50.00
Supervisor $55.00
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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 Vintage Landscape, (hereinafter referred to as the “Contractor”) an agreement for Parks and Landscape Enhancement Project (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 December 1, 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, Vintage Landscape, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of Seven Hundred Fifty Thousand Dollars, ($$750,000), 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 637
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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 ____________________ ____
Printed name: _______________________
Title: ______________________________
(Corporate Seal) Surety
By: ________________________________
Printed Name: _______________________
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate)
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.

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

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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PAYMENT BOND
KNOW ALL PERSONS BY THESE PRESENTS That
WHEREAS, the City of Palm Desert (hereinafter designated as the “City”), by action taken or a resolution passed October 24, 2024, has awarded to Vintage Landscape, hereinafter designated as the “Principal,” a contract for the work described as follows:

Parks and Landscape Enhancement Project (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 December 1, 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 sum of Seven Hundred Fifty Thousand Dollars, ($750,000) 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 642
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relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or 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 ____________________ ____
Printed name: _______________________
Title: ______________________________
(Corporate Seal) Surety
By: ________________________________
Printed Name: _______________________
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate)
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.

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

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
646
The Mesa
Canyon
Corridor
m Springs
111
Country Club Dr
Bob Hope Dr
Monterey Ave
Mission Hills
Country Club
Westin Mission
Hills Golf Resort
& Spa
Rimrock
Sunmor
Deepwell
Ranch
Ramon Palms
Lawrence
Crossley
Araby
Commons
Baristo
Demuth Park
Sunair
West Gate
Andreas Hills
Thousand
Palms
Rancho Mirage
Palm Desert
Cathedral City
111
Bighorn
Cahuilla Hills
10 Washington St
Jackson St
Cook St Ramon Rd
Fred Waring Dr
Country Club Dr
Indio Blvd
Indian Wells
Golf Course
Palm Desert
Country Club
Coachella
Valley National
Wildlife Refuge
Hidden Palms
Bermuda
Dunes
Biskra Palms
Desert Palms
Monroe St
Monroe St
Avenue 52
Avenue 50
Highway 111 Vintage Club
Indian Wells
La Quinta
Indio
The Golf
Terra
City of Palm Desert - Landscaped Areas
City of Palm Desert, County of Riverside, California State Parks, Esri, TomTom, Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, Landscape
Palm Desert City Boundary
7/30/2024
0 1 2 4 mi
0 1.5 3 6 km
1:144,448
Chris Gerry 647
648
Sources: Esri, DeLorme,
Palm Desert Medians

CITY MAINTAINED

PRIVATELY MAINTAINED

RANCHO MIRAGE

CITY OF PALM DESERT
I
649
650

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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: October 24, 2024
PREPARED BY: Nick Melloni, AICP, Principal Planner
SUBJECT: INTRODUCTION OF AN ORDINANCE TO AMEND SECTIONS OF TITLE 27 GRADING OF THE PALM DESERT MUNICIPAL AND MAKING A

FINDING OF EXEMPTION UNDER CEQA
RECOMMENDATION:

Introduce an Ordinance entitled, “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, UPDATING SECTIONS OF TITLE 27 GRADING AND MAKING A FINDING OF EXEMPTION UNDER CEQA.”

EXECUTIVE SUMMARY
Adopting staff’s recommendation will pass the proposed ordinance amending sections of Title 27, also known as the City’s Grading Ordinance, to second reading. The current Grading Ordinance, originally adopted in 1976, has been amended sporadically since that time. The proposed ordinance will implement new requirements such as finished grade sensitive transition requirement which will limit grade elevations of new development adjacent to existing residential developments, and stockpiling grading requirements to require permittees enter into agreements and provide securities, including bonds or cash deposits, with the City. Future amendments will include a comprehensive amendment to the Grading Ordinance, followed by the adoption of a Unified Development Code (“UDC”), which is expected to occur within the next 18 to 24 months.

These efforts will further integrate the Grading Ordinance with the Subdivision and Zoning Titles.

BACKGROUND
Title 27 (“Grading Ordinance”) of the Palm Desert Municipal Code (“PDMC”) establishes regulations for grading in the incorporated areas of the City of Palm Desert. The general purpose of the Grading Ordinance is to safeguard life, limb, property, and the public welfare by regulating grading and controlling the quality of water runoff on private and public property within the City.

The current Grading Ordinance was originally adopted by the City in 1976 and has been sporadically amended approximately seven times with the most recent major amendment occurring in 1987. Changes in City staffing, unclear procedures, outdated verbiage, and new state laws for housing necessitate a comprehensive update to the Grading Ordinance.

On September 12, 2024, during the City Council Study Session, City staff presented recommended policy updates which would affect Title 26 (Subdivision Ordinance) and the Grading Ordinance. Recommended policy updates to the grading ordinance included the following:
 Establish a grading pad elevation transition standard for infill developments, adjacent to existing residential which limits the height of new finished pads to 5’-0” above existing grade of the existing developments within 100 feet of the project’s property line with exceptions for master planned communities.
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 Require permitting for temporary stockpiling which establishes requirements that follow current best practices.

ANALYSIS
The proposed ordinance will generally make updates to implement the finished grade sensitive height transition standards, make agreements and securities mandatory for stockpiling to assure work is completed in a timely manner, or provide an option for the City to remediate, if necessary.

The proposed amendments also include appurtenant definitions to support the policies for finished grade height.

Section 1 through 6 – Chapter 25.08 - Definitions
These sections add or amend terms used in the ordinance in support of the proposed finished grade transition standard. These terms include “abut”, “building pad”, and definitions for the “existing”, “finished” and “natural grade” of a site.

Section 7 – Section 27.12.048 - Finished Grade Transition Standard The intent of this section is to establish design standards for sensitive transition of finished grade for new development which abuts existing residential development. This standard will require new developments to limit height of increased finished grade to five feet above the existing grade at the property boundary, within 100 feet of an existing residential development.

This section would apply to new development adjacent to existing residential developments, and are increasing the grade. Exceptions can be made for master planned projects, if the grade is necessary for public health and safety and public welfare, or the site topography prevents alternative designs with lower pads.

Section 8 - 27.28.155 Stockpiling
This change will add a requirement that all stockpiling requires agreements and securities, including bonds or cash deposits, to ensure the work is completed and provide for site restoration, if the City must complete it. Additionally, all references to mining have been removed since this activity is not allowed.

Legal Review:

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

Public Input:

A ten-day public hearing notice for this item was posted in the Desert Sun newspaper on Friday, October 11, 2024. No comments have been submitted to City staff regarding this action.

Environment Review:

The proposed Ordinance is a Project pursuant to the requirements of the California Environmental Quality Act. The proposed Ordinance is exempt from further environmental review under CEQA pursuant to State CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that the Ordinance would not have the potential or possibility for causing a significant effect on the environment. Specifically, the proposed changes to the Municipal Code 652
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are primarily technical and administrative in nature. No construction is proposed, and the amendments do not constitute any project approvals.

FINANCIAL IMPACT:

The is no direct financial impact to the General Fund with this action.

ATTACHMENTS:

1. Draft City Council Ordinance

2. Attachment “A”

3. Public Hearing Notice
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ORDINANCE NO. 2024- _______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

PALM DESERT, CALIFORNIA UPDATING SECTIONS OF
TITLE 27 GRADING AND MAKING A FINDING OF
EXEMPTION UNDER CEQA.

THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Amendment to Municipal Code. The City Council hereby adopts the updated sections of the Palm Desert Municipal Code Title 27 Grading, attached hereto as Attachment “A.”
SECTION 2. CEQA Exemption. The City Council finds and determines that the proposed ordinance amendment qualifies for exemption from the California Environmental Quality Act (CEQA) for the “common sense” exemption under Section 15061(b)(3). The ordinance introduces procedures specifically designed to safeguard environmental interests without authorizing physical changes. There is no possibility of a significant environmental impact. The ordinance primarily addresses administrative processes and regulatory guidance, without permitting construction activities, physical alterations, or increases in development density. It refines regulatory compliance and oversight rather than promoting physical development. Importantly, no specific grading projects are approved under this ordinance; any such project would require a separate environmental review in compliance with CEQA. Thus, the ordinance is procedural in nature, reinforcing environmental protection and ensuring it bears no potential for significant environmental impact, supporting its qualification for the CEQA “common sense” exemption.

SECTION 3. Severability. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid.

SECTION 4. Posting and 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.

ADOPTED ON ___________________, 2024.

KARINA QUINTANILLA
MAYOR
655
ATTEST:

ANTHONY J. MEJIA

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

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

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

ANTHONY J. MEJIA

CITY CLERK
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1 ATTACHMENT “A”

GRADING ORDINANCE AMENDMENT
SECTION 1. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 27.08.015 Abut is hereby added as follows:

27.08.015 Abut
“Abut” means two, or greater, adjoining parcels of property with a common property line.

Properties separated by a public street right-of-way will not generally be considered adjoining.

SECTION 2. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 27.08.027 Building Pad is hereby added as follows:

27.08.027 Building Pad
“Building pad” means the level padded yard area created through grading for a building site and other ancillary uses. Areas with slopes of five to one or flatter are considered level padded yard areas. Driveways providing access to the building pad are not included as part of the total permitted level pad area.

SECTION 3. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 27.08.130 Grade is hereby repealed and replaced as follows:

27.08.130 Grade
“Grade” means the vertical location of the ground surface.

SECTION 4. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 27.08.132 Grade, Existing is hereby added as follows:

27.08.132 Grade, Existing
“Grade, Existing” or “Existing Grade” means the ground surface prior to grading.

SECTION 5. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 27.08.134 Grade, Finished is hereby added as follows:

27.08.134 Grade, Finished
“Grade, Finished” or “Finished Grade” means the final grade of the site which conforms to the approved plan.

SECTION 6. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 27.08.136 Grade, Natural is hereby added as follows:
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2 27.08.136 Grade, Natural
“Grade, natural” or "Natural grade" means the ground surface unaltered by artificial means.

SECTION 7. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 27.12.048 Finished Grade Transition Standard is hereby added as follows:

27.12.048 Finished Grade Transition Standard
A. Intent. The intent of this section is to establish design standards for sensitive transition of finished grade for new development which abuts existing residential development.

B. Finished grade height restriction. Where a proposed development proposes to establish a finished grade which exceeds the elevation of the natural or existing grade of a site which abuts a residential development that is occupied at the time of application submittal, the maximum finished grade within one-hundred horizontal feet of the common property shall not exceed five-feet as established by a vertical measurement from the approved finished grade at the common property line with the abutting residential development, except in the following instances:

1. Master Planned Communities. The existing residential development and proposed development were approved by the City at the same time in a master plan, precise plan, specific plan, tentative map, or other phased land use approval.

2. Environmental and Hazard Mitigation. A higher finished grade elevation is necessary to in order to mitigate anticipated adverse environmental effects, and/or hazards to public health and safety, which cannot otherwise be mitigated by other means upon justification provided by the project applicant. An applicant shall take all necessary measures to minimize the finished grade and enhance the design of the transition area.

3. Site Topography. Due to the presence of significant topography on a site including, but not limited to hillside slopes in excess of 10%, thereby making a lower finished pad elevation is not feasible.

SECTION 8. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code Section 27.28.155 Stockpiling and mining is hereby repealed and replaced as follows:

27.28.155 Stockpiling.
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3 A. Stockpiling of appropriate fill material will be allowed for a period no longer than six months with a six-month extension for a maximum of twelve months under the following conditions:

1. The applicant shall have an approved grading plan;

2. The applicant shall enter into an agreement with the City, upon forms approved by the City Attorney, and the applicant shall provide securities for potential site restoration in an amount to be determined by the City Engineer;

3. Should the city have a construction project which necessitates stockpiling, the stockpiled material shall be removed upon completion of the project.

4. All material stockpiled shall be maintained in such a manner as to not cause a public nuisance. The applicant shall agree to take any corrective action necessary to eliminate the public nuisance. In the event any required corrective action is not accomplished by the applicant, the city will use its forces or a contractor to accomplish the remedial action. The cost of such remedial action, including attorney’s fees and costs, shall be the responsibility of the property owner.

B. Permits for stockpiling will be in the form of a standard city grading permit. 659
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C I T Y O F P A L M D E S E R T
73-510 FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760-346-0611
[email protected]

CITY OF PALM DESERT

PUBLIC HEARING NOTICE

NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BEFORE THE CITY

COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, TO CONSIDER ADOPTION OF AN ORDINANCE AMENDING TITLE 27 – GRADING OF THE PALM DESERT MUNICIPAL CODE

AND MAKING FINDINGS UNDER THE CALIFORNIA ENVIRONEMNTAL QUALITY ACT (CEQA)
The City of Palm Desert (City), in its capacity as the Lead Agency for this project, has determined the action is exempt pursuant to CEQA Guidelines section 15061(b)(3).

PROJECT LOCATION: Citywide
PROJECT DESCRIPTION: The action to be considered is an ordinance which will amend the entirety of Title 27 of the Palm Desert Municipal Code regarding procedures and requirements for grading.

PUBLIC HEARING: NOTICE IS HEREBY GIVEN that the City Council of the City of Palm Desert, California, will hold a Public Hearing on Thursday, October 24, 2024. The City Council meeting begins at 4:00 p.m. in the Council Chamber at 73510 Fred Waring Drive, Palm Desert, California.

Pursuant to Assembly Bill 2449, this meeting may be conducted as a hybrid meeting, allowing public access via teleconference or in person. Options for remote participation will be listed on the Posted Agenda for the meeting at: https://www.palmdesert.gov/our-city/mayor-and-citycouncil-/city-council-meeting-information-center REVIEW OF PROJECT INFORMATION: Information concerning the proposed lease rate and licensing requires is available for review in the Office of the City Clerk at 73510 Fred Waring Drive, Palm Desert, California during regular business hours and on the City’s website at https://www.palmdesert.gov/our-city/mayor-and-city-council-/city-council-meeting-informationcenter COMMENT ON THIS APPLICATION: Response to this notice may be made as follows:

Written comments may be submitted to the City Council by letter to the address below or email at [email protected]. Transmittal prior to the start of the meeting is required. Any correspondence received during or after the meeting will be distributed to the City Council as soon as practicable and retained for the official record.

Any challenge of the proposed project in court may be limited to raising only those issues raised at the public hearing described in this notice, or in written correspondence delivered to the City Clerk at, or prior, to the public hearing. (Government Code Section 65009[b][2]).

Si necesita ayuda con esta notificación, por favor llame a la Ciudad de Palm Desert y comuníquese con Gloria Sanchez (760) 346-0611 ext. 354
PUBLISH: THE DESERT SUN ANTHONY J. MEJIA, MMC, CITY CLERK October 11, 2024 CITY OF PALM DESERT, CALIFORNIA
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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: October 24, 2024
PREPARED BY: Nick Melloni, AICP, Principal Planner
SUBJECT: RESOLUTION ESTABLISHING AN ANNUAL LEASE RATE FOR DINING

DECKS AND LICENSING REQUIREMENTS FOR USE OF PUBLIC

RIGHT-OF-WAY FOR OUTDOOR DINING DECKS AND MAKING

FINDINGS
RECOMMENDATION:

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

PALM DESERT, CALIFORNIA, ADOPTING AN ANNUAL LEASE RATE FOR DINING

DECKS AND LICENSING REQUIREMENTS FOR USE OF PUBLIC RIGHT-OF-WAY FOR OUTDOOR DINING DECKS.”

2. Authorize the City Attorney to make necessary non-monetary changes to the contract.

3. Authorize the City Manager to execute the license agreements with dining deck operators and any other documents necessary to effectuate this action.

BACKGROUND/ANALYSIS:

The proposed resolution will establish requirements for all temporary outdoor dining deck within the public right-of-way to pay an annual license fee and enter into license agreements with the City. This requirement will go into effect after the existing Temporary Use Permit (TUP) approval expires in May 2025. The proposed annual lease rate is $7.08 per square foot of deck area. The proposed annual lease rate is based upon 25% of the blended lease rate ($28.31/SF) per the City Council’s action on May 23, 2024.

The license agreement establishes terms and conditions by which the operators may use the right-of-way. The fee and license requirement will remain in effect for the duration of the Dining Deck Program. This action implements the previous direction of the City Council.

At the November 16, 2023, City Council meeting, the City Council took action on the following:
 Extended the City’s Dining Deck program through June 30, 2026  Adopted updates to the Outdoor Dining Deck Design Guidelines  Directed staff to study the development of a licensing agreement for use of the public right-of-way.

On April 11, 2024, the City Council held a study session to review right-of-way use options and discuss the timing of the El Paseo Street and Sidewalk Rehabilitation Project. Staff presented options for potential lease rates based on market lease rates for commercial properties in areas around El Paseo, San Pablo Avenue, and Highway 111. The City Council selected a “blended” lease rate, which combined market lease rates in these areas, amounting to $28.31, and directed 663
City of Palm Desert
Dining Deck Annual Lease Fee and Licensing Requirements

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City staff to meet with dining deck operators to gather feedback on the rate and El Paseo Rehabilitation Project schedule.

On April 29, 2024, City staff hosted an open meeting with dining deck operators to discuss the proposed lease rate and El Paseo project schedule. The operators expressed concern over the methodologies for the proposed annual lease rates and timing of the rehabilitation project.

At the May 23, 2024, City Council Regular Meeting, two actions were taken:

Action 1 passed unanimously and directed City staff to:

1. Phase the El Paseo Street Rehabilitation Project into two separate projects to take place over two consecutive summers beginning Summer 2024.

2. Allow El Paseo dining deck operators to maintain current operations through May 2025, subject to approval of an annual temporary use permit with removal of the dining decks prior to Phase Two of the El Paseo Street Rehabilitation Project.

Action 2 passed on a 3-2 vote, to direct City staff to:

1. Establish a License Agreement for dining deck use of the public right-of-way.

2. Implement an annual lease blended rate of 25% for businesses.

If adopted, the resolution will require operators to execute the agreement and pay the annual lease rate as a condition of approval for the City’s issuance of a new Temporary Use Permit (TUP). This requirement will go into effect June 1, 2025, and terminate June 30, 2026.

The table below provides an estimate of the annual fees based on existing dining decks:

Table 1 – Existing Dining Deck Lease Rate Estimates
Restaurant Name Estimated Square Footage of
Existing Deck
Estimated Annual Lease
Rate: $7.08/sq ft/year
Armando’s Bar and Grill 899 $6,365
Daily Grill 254 $1,799
Kitchen 86 635 $4,496
Mamma Gina’s Ristorante 554 $3,923
Piero’s Pizza Vino 318 $2,252
Sweet Basil 597 $4,227
The Fix 856 $6,061
Little Bar 432 $3,058
If the dining deck lease rate exceeds the rate paid by a restaurant operator pays to lease their building space, the resolution provides a “relief” for a reduced rate: the restaurant operator may provide proof of a lease agreement, entered legally with their landlord on, or prior to January 1, 2024, to the City for review. The City may reduce the dining deck rate to an amount equal to the rate paid by the restaurant to lease their building space. Additionally, the license agreement provides an option for operators to submit payment of the fee as an annual lump sum or in two semi-annual payments.
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Legal Review:

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

Environment Review:

Adoption of the fee is not a “Project” as defined by the California Environmental Quality Act (CEQA) as defined by CEQA Guidelines Section 15378(b)(4). This action will establish a framework for administration and fee collection for future applications which may be submitted for temporary dining decks.

Public Notification:

Public notice was conducted for this item in accordance with the provisions of Government Code (Gov. Code), Section 66018. A ten-day public hearing notice was published on October 11, 2024, in The Desert Sun newspaper. In accordance with the requirements of Gov. Code Section 6062a, a second publication was posted in The Desert Sun on October 18, 2024. Copies of the notices were provided to each dining deck operator. Additionally, City staff provided drafts of the use fee and license agreement and met with each dining deck operator to answer questions, comments or provide clarifications of the requirements.

Staff provided an informational flier to each of the dining deck operators, and subsequently met with them, and provided email correspondence regarding the fees. The operators did not voice opposition or major questions.

One question was raised regarding the need for automobile insurance as a part of the license agreement. This type of insurance is required due to the higher likelihood of the decks being struck by an automobile as they are located within right-of-way.

FINANCIAL IMPACT:

Based on current estimates of deck square footage, collection of the annual lease rate may generate up to $32,178 to the General Fund in Fiscal Year 2025-26. The total may vary depending on the existing operators’ decision to continue utilizing dining decks and/or changes in total area of each respective deck.

The estimated staff time for each annual temporary use permit (TUP) is approximately 10 hours, this estimate includes staff review by Development Services, Economic Development, and Public Works, as well as quarterly inspections by the Code Compliance Division. Per City Council Resolution No. 2012-37, the cost per hour of planner staff time is $138, resulting in a minimum cost of $1,380 per TUP. The current TUP application costs $87 per request. Annual lease rate fees will cover City costs.

ATTACHMENTS:

1. Draft Resolution

2. Dining Deck License Agreement

3. Hearing Notice(s)
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RESOLUTION NO. _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

DESERT, CALIFORNIA, ADOPTING AN ANNUAL LEASE RATE FOR

DINING DECKS AND LICENSING REQUIREMENTS FOR USE OF

PUBLIC RIGHT-OF-WAY FOR OUTDOOR DINING DECKS
WHEREAS, in 2020 the City of Palm Desert (“City”) created an Outdoor Dining Deck Program (“Program”) allowing restaurants to obtain Temporary Use Permits (TUPs) for outdoor dining; and
WHEREAS, several TUPs have been issued to businesses using the public rightof-way for outdoor dining (El Paseo and Highway 111 Frontage Road); and WHEREAS, on November 16, 2023, the City Council of the City of Palm Desert (“City Council”) took action to extend the City's Dining Deck program through June 30, 2026, adopting updates to the Outdoor Dining Deck Design Guidelines and permitting requirements; and
WHEREAS, the City Council directed staff to explore the development of a licensing agreement for the use of the public right-of-way; and WHEREAS, City staff proposed three separate options for possible lease methodologies for the use of the public right-of-way based on market lease rates, and the City Council discussed a possible right-of-way use rates; and WHEREAS, City Council recommends an annual lease rate of 25% of the market rate, based on a blended rate presented at the May 23, 2024 City Council Meeting, for the remaining duration of the Program; and
WHEREAS, if the selected dining deck lease rate exceeds the rate a restaurant operator pays to lease their building space, the City Council may consider reducing the rate upon the operator providing proof of a lease agreement entered into on or before January 1, 2024; and
WHEREAS, the administration of the Program and the use of public right-of-way for dining decks require the City to expend resources, including staff time, and incur costs associated with the management, oversight, and maintenance of public property being utilized for private commercial purposes; and
WHEREAS, the adoption of a lease rate is necessary to offset the costs incurred by the City in administering the Program and to ensure that appropriate compensation is received for the use of public property.
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Resolution No. 2024- ____
2 WHEREAS, the City Council of the City of Palm Desert, California, did on August 22nd, 2024, hold a duly noticed public hearing to consider the proposal and continued the item to a date uncertain; and
WHEREAS, the City Council of the City of Palm Desert, California, did on October 24th, 2024, hold a duly noticed public hearing to consider the proposal; and WHEREAS, at the said public hearing, 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 RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:

SECTION 1. Recitals. The City Council hereby finds that the foregoing recitals are true and correct and are incorporated herein as substantive findings of this Resolution.

SECTION 2. Adoption of Annual Lease Rate. The City Council hereby adopts an annual lease rate of $7.08 per square foot for outdoor dining decks located within the public right-of-way (“Lease Rate”). Restaurant operators are required to enter into a licensing agreement for the use of the public right-of-way (“Licensees”), which will include the annual Lease Rate of $7.08 per square foot.

SECTION 3. Rate Adjustment Relief. If the adopted Lease Rate exceeds the square foot rate paid by a restaurant operator for their building space, the City may reduce the Lease Rate upon the restaurant operator providing proof of such lease agreement dated on or before January 1, 2024.

SECTION 4. Effective Date. This Resolution shall be effective immediately upon adoption.

SECTION 5. Certification. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original Resolutions.

ADOPTED ON this 24
th day of October, 2024.

KARINA QUINTANILLA
MAYOR
ATTEST:
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Resolution No. 2024- ____
3 ANTHONY J. MEJIA

CITY CLERK
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Resolution No. 2024- ____
4 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 ___________________, 2024. _______________
ANTHONY J. MEJIA

CITY CLERK
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1 LICENSE AGREEMENT

BY AND BETWEEN THE CITY OF PALM DESERT
AND [LICENSEE]

PARTIES AND DATE
This License Agreement (“Agreement”) is entered into as of _____________, 2024 (“Effective Date”) by and between the City of Palm Desert, a California municipal corporation (“City”) and [Licensee], a [Entity Description], (the “Licensee”). The City and Licensee are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”

RECITALS
A. The City owns that certain real property, within the public Right-of-Way near the Licensee’s place of business at _________________________, in the City of Palm Desert, County of Riverside, State of California (the “Property”), which is more particularly described in Exhibit A (Property Description).

B. The Licensee requested temporary access to the property for purposes of maintaining an outdoor dining area for its patrons, which is more particularly described in Section 3 (Permitted Activities).

C. The City desires to accommodate the Licensee’s request, subject to the terms and conditions set forth in this Agreement.

TERMS
Now therefore, in consideration of the mutual covenants and obligations of the Parties herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. License.

1.1. Grant. The City hereby grants to the Licensee, and the Licensee’s representatives and agents, a revocable, non-transferable, non-exclusive license to access the Property for the limited purpose of conducting the Permitted Activities described in Section 3 (Permitted Activities) (“License”). The Parties hereby acknowledge and agree that use of the Property by Licensee, as set forth in this Agreement, is with the consent of the City and shall be considered permissive.

1.2. No Transfer of Interest. Nothing in this Agreement shall be interpreted as, or otherwise deemed to be, a transfer or conveyance of any interest in the Property whatsoever between the City and the Licensee. The Parties hereby acknowledge and agree that nothing in the Agreement shall be interpreted as an agreement for the lease or other use of the Property by Licensee.

1.3. License Fee. The Licensee shall pay to the City $7.08 per square foot of dining deck space as established by City Council Resolution ____________. Within 10 days of the Effective Date of this Agreement, Licensee shall pay the first year’s 671
2 license fee, prorated the remaining months of the calendar year. Beginning on January 1st of the following year, Licensee shall remit the entire year’s license fee either as a lump sum payment or in two (2) semi-annual payments submitted to the City no greater than six (6) months apart.

2. Term. The term of this License shall commence on the Effective Date and shall, unless otherwise modified, continue until the earlier of the City’s termination of the Temporary Outdoor Dining Deck program or _______________________ per Section 11 (Termination, Default, and Restoration).

3. Permitted Activities and Other Uses.

3.1. Permitted Activities. Licensee is authorized to conduct the following activities on the Property (“Permitted Activities”):

3.1.1. Maintain or establish an outdoor dining deck/outdoor dining area with a footprint approved by the City through a Temporary Use Permit.

3.1.2. Serve food and beverages within the outdoor dining area. Alcoholic beverages may be served in these areas with ABC approval. Alcoholic beverages may not leave the permitted outdoor dining area.

3.2. Time. All Permitted Activities are limited to the time of __________________ daily.

3.3. Other Uses. The Licensee shall not use the Property for any other purposes whatsoever, except as authorized by subsequent written agreement signed by the City.

4. Required Approvals and Compliance.

4.1. Required Approvals. The use of the property by the Licensee for Permitted Activities pursuant to this Agreement is subject to Licensee obtaining, at its sole cost and expense, and maintaining throughout the term of this License, all approvals and permits required by any federal, state, or local government agency, including the City Approvals listed in Section 4.2 (City Approvals) (“Required Approvals”).

4.2. City Approvals. The Licensee must apply for and obtain the following approvals from the City (“City Approvals”):

4.2.1. Temporary Use Permit – Outdoor Business Expansion

4.2.2. Building Department & Fire Marshal Permits if tents utilized greater than 400 square feet

4.2.3. Building Department & Fire Marshal Permits if electrical lighting utilized

4.3. City Review. The City does not make any representation that it will issue or otherwise assist in the issuance of any Required Approval. The City shall have no obligation or liability to verify whether Licensee has obtained all Required Approvals.
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3 4.4. Compliance. The Licensee’ rights under this Agreement shall be conditioned upon, and Licensee shall, at their sole cost and expense, comply with each and every federal, state and local law, regulation, standard, court decision, ordinance, rule, code, order, decree, directive, guideline, permit and permit condition, together with any declaration of covenants, conditions and restrictions that are recorded in any official or public records with respect to the Property or any portion thereof, each as currently existing and as amended, enacted, issued or adopted from time to time, that are applicable to the Permitted Activities and the Property. Notwithstanding any other provision of this Agreement, the City reserves the right to remove or require the Licensee to remove the outdoor dining deck if it is deemed, in the City’s sole discretion, to pose a safety hazard. The determination of a safety hazard may be based on, but is not limited to, inspections, reported incidents, or changes in local safety regulations. If the City determines that the dining deck must be removed for safety reasons, the City shall provide written notice to the Licensee specifying the nature of the hazard and the required actions to rectify it. The Licensee shall have ten (10) days from the date of the notice to remove the dining deck or address the safety concerns to the satisfaction of the City. If the Licensee fails to comply within the specified time, the City may proceed with the removal of the dining deck. All costs associated with such removal shall be the responsibility of the Licensee and shall be reimbursed to the City upon demand.

5. Standard of Performance. All Permitted Activities shall be performed in accordance with the highest standards and practices in the industry.

6. Hazardous Materials. The Licensee shall not under any circumstances store or bring onto the Property any Hazardous Materials. As used in this Agreement, the term “Hazardous Material” means any substance, material or waste which is (1) defined as a “hazardous waste,” “hazardous material,” hazardous substance,” “extremely hazardous waste,” or “restricted hazardous waste” under any provision of California law; (2) petroleum or petroleum products; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, 33 U.S.C. section 1251 et seq. (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §1317); (7) defined as a “hazardous substance: pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. section 6901 et seq. (42 U.S.C. §6903) or its implementing regulations; (8) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601 et seq. (42 U.S.C. §9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property.

7. No Duty to Warn. The City has no duty to inspect the Property and no duty to warn the Licensee or any person of any other latent or patent defect, condition or risk that might be incurred in entering the Property. The Licensee has inspected or will inspect the Property and hereby accept the condition of the Property “AS IS.” The Licensee acknowledges that neither the City, nor any employee, agent or representative of the City, has made representations or warranties concerning the condition of the Property. All persons entering the Property under this Agreement do so at their own risk. 673
4 8. Liability for Damage. With respect to Licensee’ rights under this Agreement, the Licensee shall be responsible for any damage done to any person, or to the Property or any other real or personal property, caused by the Licensee, their officers, directors, employees, agents, independent contractors, insurers, lenders, representatives, successors or permitted assigns of the Licensee, and the other users.

9. Insurance. Each Licensee shall maintain in effect during the entire term of this Agreement each of the following:

9.1. Insurance Coverage.

9.1.1. Comprehensive General Liability. Comprehensive General Liability Insurance which affords coverage including completed operations and contractual liability, with limits of liability of not less than $2,000,000 per occurrence and $4,000,000 annual aggregate for liability arising out of Licensee performance of this Agreement. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate shall be double the each occurrence limit.

Such insurance shall be endorsed to:

9.1.1.1.Name the City of Palm Desert and its employees, representatives, officers and agents (collectively hereinafter “City and City Personnel”) as additional insured for claims arising out of Licensee’ performance of this Agreement.

9.1.1.2.Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City.

9.1.2. Automobile Liability Insurance. Automobile Liability Insurance with a limit of liability of not less than $1,000,000 each occurrence and $2,000,000 annual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for all “owned,” “hired” and “non-owned” vehicles, or coverage for “any auto.” Such insurance shall be endorsed to:

9.1.2.1.Name the City and City Personnel as additional insured for claims arising out of Licensee performance of this Agreement.

9.1.2.2.Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City.

9.1.3. Workers’ Compensation Insurance. Workers’ Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Licensee providing any service in the performance of this agreement. Such insurance shall be endorsed to: Waive the insurer’s right of Subrogation against the City and City Personnel.
674
5 9.2. Evidence of Insurance. The Licensee shall provide to City a Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements at least fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non-renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided.

9.3. Endorsements.

9.3.1. Valid Endorsements. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval.

9.3.2. Additional Insured Endorsements Additional Insured Endorsements shall not:

9.3.2.1.Be limited to “Ongoing Operations.”

9.3.2.2.Exclude “Contractual Liability.”

9.3.2.3.Restrict coverage to the “Sole” liability of Licensee.

9.3.2.4.Contain any other exclusion contrary to the Agreement.

9.4. Acceptability of Insurers. Each policy shall be from a company with current A.M.

Best’s rating of A VII or higher and authorized to do business in the State of California or approved in writing by the City.

10. Liens.

10.1. No Liens Due to Licensee’s Activities. Licensee shall not permit to be placed against the Property, or any part thereof, any design professionals’, mechanics’, materialmen’s, contractors’ or subcontractors’ liens due to Licensee’s construction activities thereon or use thereof. Licensee shall indemnify, defend and hold the City harmless from all liability for any and all liens, claims and demands, together with the costs of defense and reasonable attorneys’ fees, related to same.

10.2. Failure to Defend. In addition to, and not in limitation of, the City’s other rights and remedies under this Agreement, should Licensee fail either to discharge any lien or claim related to Licensee’ construction activities on or use of the Property or to bond for any lien or claim to the reasonable satisfaction of the City, or to indemnify, hold harmless and defend the City from and against any loss, damage, injury, liability or claim arising out of Licensee use of the Property, then the City, at its option, may elect to pay any lien, claim, loss, demand, injury, liability or damages, or settle or discharge any action or satisfy any judgment and all costs, expenses and attorneys’ fees incurred in doing so shall be paid to the City by Licensee upon written demand, together with interest thereon at the rate of ten 675
6 percent (10%) per annum from the date incurred or paid through and including the date of payment by Licensee.

11. Termination, Default, and Restoration.

11.1. Termination Without Cause. This Agreement may be terminated by either Party without cause by giving fourteen (14) days’ written notice to the other Party.

11.2. Termination for Cause. In addition to the rights described in Section 11.1 (Termination Without Cause), the City shall have the right to terminate this Agreement immediately upon the Licensee’ Default.

11.2.1. Default. “Default” means the failure of the Licensee to perform or violation of any term, condition, covenant or agreement of this Agreement, and the continuation of such failure or violation for a period of ten (10) days after the City shall have given the Licensee written notice specifying the same, or in the case of a situation in which the default cannot reasonably be cured within ten (10) days, if the Licensee shall not promptly, within ten (10) days after receipt of such notice, commence to remedy the situation by a means that can reasonably be expected to remedy the situation within a reasonable period of time, not to exceed thirty (30) days from the notice of Default, and diligently pursue the same to completion.

11.2.2. Termination and Removal of Licensee’s Property. In the event of any Default by Licensee, including expiration of any applicable cure period, the City may terminate the Agreement and remove Licensee and their property from the Property by any lawful means available in law or equity.

11.3. Restoration of Land to Original Condition. Upon termination of the Agreement, the Licensee shall be responsible for removing all improvements the Licensee placed upon the land, unless the City elects in writing to accept some or all of said improvements. Any improvements accepted by the City will be at no cost to the City. The Licensee shall promptly initiate and exercise due diligence in removing said improvements until all improvements have been removed, which shall be completed within not more than thirty (30) days following termination of this Agreement.

11.4. Effect of Termination. Termination of this Agreement shall in no way prejudice any of the rights and remedies available to the City at law or in equity, and the Licensee acknowledge and agree that all of the obligations and responsibilities of Licensee under this Agreement shall continue and survive such termination.

12. Miscellaneous.

12.1. Indemnification.

12.1.1. Indemnification of the City by the Licensee. The Licensee shall defend, indemnify and hold the City, its elected and appointed officials, officers, employees, and agents (the “Indemnified Parties”) free and harmless from any and all liability from loss, damage, or injury to property or persons, including wrongful death, in any manner arising out of or incident to acts, omissions, and/or operations by the Licensee, its officials, officers, 676
7 personnel, employees, contractors, and/or subcontractors as well as its contractors’ and/or subcontractors’ officials, officers, employees, and agents. Further, the Licensee shall defend at its own expense, including attorneys’ fees, the Indemnified Parties in any legal action based upon such acts, omissions and/or operations.

12.1.2. The Licensee’s Obligations. The Licensee’s obligations under this Section

12.1 (Indemnification) shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, regardless of whether or not the City has prepared, supplied, or approved any plans or for the uses allowed by this Agreement, and regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.

12.1.3. The City’s Rights. The City does not and shall not waive any rights against the Licensee that the City may have under the indemnification provision in this Section 12.1 (Indemnification) because of the City’s acceptance of any security deposits or insurance policies.

12.1.4. Survival. The indemnification provision in this Section 12.1 (Indemnification) shall survive the termination or expiration of this Agreement.

12.2. Attorneys’ Fees. If any legal action or proceeding arising out of or relating to this Agreement is brought by either party to this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorneys’ fees, costs, and expenses incurred in the action or proceeding by the prevailing party.

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

12.4. Waiver. The City’s failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or the City’s waiver of any breach hereunder, shall not relieve the Licensee of any of its obligations hereunder, whether of the same or similar type. The foregoing shall be true whether the City’s actions are intentional or unintentional. Further, the Licensee agrees to waive as a defense, counterclaim, or setoff any and all defects, irregularities, or deficiencies in the authorization, execution, or performance of this Agreement as well as any laws, rules, regulations, ordinances, or resolutions of the City with regard to this Agreement.

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

12.6. Assignment or Transfer.

12.6.1. No Assignment without the City’s Consent. The Licensee shall not assign, hypothecate, or transfer, either directly or by operation of law, this 677
8 Agreement or any interest herein without prior written consent of the City.

Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in the City’s written consent, any assignment, hypothecation, or transfer shall not release or discharge the Licensee from any duty or responsibility under this Agreement.

12.6.2. Merger. The transfer of a majority of the ownership interests in the Licensee, however accomplished, and whether in a single transaction or in a series of related or unrelated transactions, or the merger of the Licensee into any other entity in which the Licensee is not the surviving entity, or the sale of all or substantially all of the Licensee’s assets, shall be deemed an assignment of the Licensee’s rights hereunder subject to the requirements of Section 12.6.1 (No Assignment without the City’s Consent).

12.7. Construction, References, and Captions.

12.7.1. Simple Construction. It being agreed the Parties or their agents have participated 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.

12.7.2. Section Headings. Section headings contained in this Agreement are for convenience only and shall not have an effect in the construction or interpretation of any provision.

12.7.3. Calendar Days. Any term referencing time, days, or period for performance shall be deemed calendar days and not business days.

12.7.4. References to the City. All references to the City shall include, but shall not be limited to, City Council, City Manager, City Attorney, City Engineer, or any of their authorized representatives. The City shall have the sole and absolute discretion to determine which public body, public official or public employee may act on behalf of the City for any particular purpose.

12.7.5. References to the Licensee. All references to the Licensee shall include all officials, officers, personnel, employees, agents, contractors, and subcontractors of Licensee, except as otherwise specified in this Agreement.

12.8. Notices. All notices to be given hereunder shall be in writing and may be made either by personal delivery or by registered or certified mail, postage prepaid, return receipt requested. Mailed notices shall be addressed to the parties at the addresses listed below. Notices delivered personally will be deemed communicated as of actual receipt; mailed notices will be deemed communicated as of two (2) days after mailing.
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9 To City: To Licensee:

City of Palm Desert
73-510 Fred Waring Dr.

Palm Desert, CA 92260
Attn: ________________
____________________
____________________
____________________
Attn:________________

12.9. Entire Agreement and Severability.

12.9.1. 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, either written or oral, express or implied.

12.9.2. Severability. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.

12.10. Binding Effect.

12.10.1. The Parties. Each and all of the terms and conditions of this Agreement shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns.

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

12.10.3. Recordation. The Licensee acknowledges and agrees that the City may cause a copy of this Agreement to be recorded in the Riverside County Recorder’s Office.

12.10.4. Not Authorization to Assign. This Section 12.10 (Binding Effect) shall not be construed as an authorization for any Party to assign any right or obligation under this agreement other than as provided in Section 12.6 (Assignment or Transfer).

Signatures on next page.
679
10 SIGNATURE PAGE TO LICENSE AGREEMENT

BY AND BETWEEN THE CITY OF PALM DESERT
AND [LICENSEE]
In witness thereof, the Parties here to have executed this Agreement:

City of Palm Desert [Licensee]
By: _________________________________ By: _________________________________ Todd Hileman
City Manager
NAME,

POSITION
ATTEST:

By: _________________________________ By: _________________________________ Anthony Mejia
City Clerk
NAME,

POSITION
APPROVED AS TO FORM:

By: _________________________________
Isra Shah
City Attorney
680

EXHIBIT A

PROPERTY DESCRIPTION
To be included.
681
682

C I T Y O F P A L M D E S E R T
73-510 FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760-346-0611
[email protected]

CITY OF PALM DESERT

PUBLIC HEARING NOTICE

NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BEFORE THE CITY

COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, TO CONSIDER ADOPTING AN

ANNUAL LEASE RATE FOR DINING DECKS AND LICENSING REQUIREMENTS FOR USE

OF PUBLIC RIGHT-OF-WAY FOR OUTDOOR DINING DECKS
The City of Palm Desert (City), in its capacity as the Lead Agency for this project and pursuant to the California Environmental Quality Act (CEQA), has determined the action is not a “Project” as defined by CEQA Guidelines Section 15378(b)(4).

PROJECT LOCATION: Citywide
PROJECT DESCRIPTION: The item is to be considered is an action to adopt an annual lease rate and license agreement requirements for existing temporary outdoor dining decks to use the public-right-of-way.

Page 1 of 2 ends

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: October 24, 2024
PREPARED BY: Richard D. Cannone, AICP, Development Services Director SUBJECT: INTRODUCTION OF AN ORDINANCE UPDATING PALM DESERT MUNICIPAL CODE CHAPTER 5.11, DISCLOSURES UPON TRANSFER

OF RESIDENTIAL PROPERTY AND MAKING FINDINGS UNDER THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
RECOMMENDATION:

Hold a public hearing and introduce an ordinance entitled, “AN ORDINANCE OF THE CITY

COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, UPDATING PALM DESERT MUNICIPAL CODE CHAPTER 5.11, DISCLOSURES UPON TRANSFER OF RESIDENTIAL PROPERTY AND MAKING FINDINGS UNDER CEQA.”
BACKGROUND/ANALYSIS:

Recently, issues have arisen regarding the purchasing of homes for short-term rental (STR) purposes, particularly concerning the misrepresentation of dens as legal bedrooms. To address this, staff have sent notifications to the California Desert Association of Realtors®, homeowner associations (HOAs), and sales offices within HOA communities. These communications emphasize that a legal bedroom must have a properly sized window or door that opens directly to a public street, alley, yard, or court. Rooms that do not meet this requirement, such as those adjacent to enclosed atriums, are classified as “dens” and cannot be marketed as bedrooms.

Sellers of residential properties are required to provide certain statutory disclosures under Section 1102.6 of the California Civil Code. Additionally, the California Civil Code §1102.6a allows cities and counties to require sellers to present a local transfer disclosure statement that includes local requirements. It’s important to note that there are statutory exceptions, such as foreclosure sales and sales by fiduciaries.

On February 10, 2022, the City Council adopted Ordinance 1375, which amended various sections of the Palm Desert Municipal Code (PDMC) concerning public notifications of development projects. This included the introduction of Chapter 5.11, which mandates that sellers of single-family residential properties deliver a real estate transfer disclosure to prospective buyers, informing them of likely development in the area through a provided weblink and phone number.

To enhance public awareness, staff propose adding the following language to the disclosure:

2. Buyer is advised that the property is subject to the City of Palm Desert’s short term rental regulations contained in Chapter 5.04 of the Palm Desert Municipal Code and is advised to review the City of Palm Desert’s website 685
City of Palm Desert
PDMC Chapter 5.11 Update

Page 2 of 2 ends

regarding short term rentals. The website can be accessed at https://www.palmdesert.gov/our-city/departments/planning/short-term-rentals.

This weblink includes the STR regulations, information confirming your bedroom count, and how to obtain a permit.

Regarding enforcement, California Civil Code §1102.13 states that failure to comply with transfer disclosure requirements does not invalidate the property transfer. However, individuals who willfully or negligently fail to fulfill these duties may be liable for actual damages suffered by the buyer. Thus, if a seller neglects to provide a required local disclosure, the buyer may have recourse under Civil Code Section 1102.13.

Legal Review:

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

Public Input:

A ten-day public hearing notice for this item was posted in the Desert Sun newspaper on Friday, October 11, 2024. No comments have been received by City staff regarding this action.

Environment Review:

The proposed Ordinance is exempt from further environmental review under CEQA pursuant to State CEQA Guidelines Section 15061(b)(3), known as the “common sense” exemption. This determination is based on the clear assessment that there is no possibility the ordinance may have a significant effect on the environment. The ordinance provides an additional residential disclosure without expanding land use or initiating new developments, thereby maintaining existing environmental baselines and prevents abrupt changes in land use intensity. The ordinance reaffirms current use regulations and does not alter existing physical environmental conditions or promote increased development, thus qualifying for the CEQA “common sense” exemption as it bears no potential for significant environmental impact.

FINANCIAL IMPACT:

None
ATTACHMENTS:

1. Ordinance

2. Ordinance Attachment A
686
ORDINANCE NO. 2024- ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA UPDATING CHAPTER 5.11

DISCLOSURE UPON TRANSFER OF RESIDENTIAL

PROPERTY AND MAKING A FINDING OF EXEMPTION
UNDER CEQA.

City Attorney’s Summary
The purpose of this ordinance is to amend Palm Desert Municipal Code Chapter 5.11 Disclosure Upon Transfer of Residential Propertius to include an additional disclosure statement notifying buyers of the City’s short-term rental regulations.

THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Amendment to Municipal Code. The City Council hereby adopts the updated Palm Desert Municipal Code Chapter 5.11 Disclosure Upon Transfer of Residential Propertius, attached hereto as Attachment “A.” SECTION 2. CEQA Exemption. The City Council finds that the updated shortterm rental ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3), known as the “common sense” exemption. This determination is based on the clear assessment that there is no possibility the ordinance may have a significant effect on the environment. The ordinance provides an additional residential disclosure without expanding land use or initiating new developments, thereby maintaining existing environmental baselines and prevents abrupt changes in land use intensity. The ordinance reaffirms current use regulations and does not alter existing physical environmental conditions or promote increased development, thus qualifying for the CEQA “common sense” exemption as it bears no potential for significant environmental impact.

ADOPTED ON ___________________, 2024.
687

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 ____________________.

ANTHONY J. MEJIA

CITY CLERK
688
ATTACHMENT “A”
689
690
ATTACHMENT “A”
CHAPTER 5.11

DISCLOSURES UPON TRANSFER OF RESIDENTIAL PROPERTY
§ 5.11.010. Statement required.

A. Pursuant to Civil Code Section 1102.6a, in addition to those disclosures required by Civil Code Section 1102.6, the seller of any single-family residential property located within the city shall deliver to the prospective buyer a real estate transfer disclosure statement containing the following statement:
"Know Your Neighborhood: The City of Palm Desert maintains a website that provides important information on potential development throughout the City. The City recommends that you visit the website as part of your consideration in buying a home in the City.

The website can be accessed at https://www.cityofpalmdesert.org/departments/planning.

Alternatively, you can call the City's Development Services Department at (760) 346-0611, ext. 483."
B. The real estate transfer disclosure statement required by this chapter shall be delivered at the same time as those disclosures required by Civil Code Section 1102.6 or as soon as practicable thereafter.

C. For purposes of this section:

1. "City" means the city of Palm Desert, California.

2. "Single-family residential property" means either of the following: (a) real property improved with one to four dwelling units, including any leasehold exceeding one year's duration of such; (b) a unit in a residential stock cooperative, condominium, or planned unit development; or (c) a mobile home or manufactured home when offered for sale or sold through a real estate broker pursuant to Business and Professions Code Section 10131.6.

3. "Seller" means a transferor in a real property transaction, and includes an owner who lists real property with a licensee, whether or not a transfer results, or who receives an offer to purchase real property of which he or she is the owner from a licensee on behalf of another. "Seller" includes both a vendor and lessor of real property.

4. "Buyer" means a transferee in a real property transaction, and includes a person who executes an offer to purchase real property from a seller through a licensee, whether or not a transfer results, or who seeks the services of a licensee in more than a casual, transitory, or preliminary manner, with the object of entering into a real property transaction. "Buyer" includes a purchaser, vendee, or lessee of real property. § 5.11.020. Form of statement.

The real estate transfer disclosure statement required by this chapter shall be in the following form in accordance with Civil Code Section 1102.6a:
691

LOCAL OPTION

REAL ESTATE TRANSFER DISCLOSURE STATEMENT

THIS DISCLOSURE STATEMENT CONCERNS THE REAL PROPERTY SITUATED IN

THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS . THIS STATEMENT IS A DISCLOSURE OF THE

CONDITION OF THE ABOVE-DESCRIBED PROPERTY IN COMPLIANCE WITH ORDINANCE NO. OF THE PALM DESERT CITY CODE AS OF ,
20 . IT IS NOT A WARRANTY OF ANY KIND BY THE SELLER(S) OR REAL

ESTATE LICENSEE(S) REPRESENTING ANY PRINCIPAL(S) IN THIS TRANSACTION,

AND IS NOT A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE PRINCIPAL(S) MAY WISH TO OBTAIN.

SELLER'S INFORMATION
The Seller discloses the following information with the knowledge that even though this is not a warranty, prospective Buyers may rely on this information in deciding whether and on what terms to purchase the subject property. Seller hereby authorizes any real estate licensee(s) representing any principal(s) in this transaction to provide a copy of this statement to any person or entity in connection with any actual or anticipated sale of the property.

THE FOLLOWING ARE REPRESENTATIONS MADE BY THE SELLER(S) AS

REQUIRED BY THE CITY OF PALM DESERT, AND ARE NOT THE
REPRESENTATIONS OF THE REAL ESTATE LICENSEE(S), IF ANY. THIS

INFORMATION IS A DISCLOSURE AND IS NOT INTENDED TO BE PART OF ANY CONTRACT BETWEEN THE BUYER AND SELLER.

1. Know Your Neighborhood: The City of Palm Desert maintains a website that provides important information on potential development throughout the City. The City recommends that you visit the website as part of your consideration in buying a home in the City. The website can be accessed at https://www.cityofpalmdesert.org/departments/planning.

2. Buyer is advised that the property is subject to the City of Palm Desert’s short term rental regulations contained in Chapter 5.04 of the Palm Desert Municipal Code, and is advised to review the City of Palm Desert’s website regarding short term rentals. The website can be accessed at https://www.palmdesert.gov/our-city/departments/planning/short-term-rentals.

Alternatively, you can call the City's Development Services Department at (760) 346-0611, ext. 483.

Seller certifies that the information herein is true and correct to the best of the Seller's knowledge as of the date signed by the Seller.

Seller Date
Seller Date
II

BUYER(S) MAY WISH TO OBTAIN PROFESSIONAL ADVICE AND/OR INSPECTIONS

OF THE PROPERTY AND TO PROVIDE FOR APPROPRIATE PROVISIONS IN A

CONTRACT BETWEEN BUYER AND SELLER(S) WITH RESPECT TO ANY ADVICE/ INSPECTIONS/DEFECTS.

I/WE ACKNOWLEDGE RECEIPT OF A COPY OF THIS STATEMENT.
692
Buyer Date
Buyer Date
A REAL ESTATE BROKER IS QUALIFIED TO ADVISE ON REAL ESTATE. IF YOU DESIRE LEGAL ADVICE, CONSULT YOUR ATTORNEY."
693
694

Palm Desert City CouncilOctober 24, 2024

Palm Desert City Council
October 24, 2024