Agenda packet — Palm Desert City Council, September 10, 2026 (part 2 of 4)

Conflict of Interest Awareness Checklist
Note: This checklist is informational only and does not constitute a legal determination. Each Councilmember remains responsible for identifying, disclosing, and evaluating any disqualifying interests under the Political Reform Act and applicable FPPC regulations.

1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☐ Yes
☒ No
If yes, identify the project site:

Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

2. SB 1439 / Gov. Code § 84308 Applicability (Campaign Contributions) Does this item involve a license, permit, other entitlement for use, or a contract or franchise agreement that is not competitively bid, a labor agreement, or a personal employment contract?
☐ Yes
☒ No
If yes, identify the applicant(s), appellant(s), party, or participant(s):

CAL CITIES OFFICERS
President
Gabe Quinto
Mayor
El Cerrito
First Vice President
Teresa Acosta
Council Member
Carlsbad
Second Vice President
David Cohen
Council Member
San Jose
Immediate Past President
Lynne B. Kennedy
Mayor Pro Tem,
Rancho Cucamonga
Executive Director
and CEO
Carolyn M. Coleman
1400 K Street, Suite 400, Sacramento, CA 95814 • 916.658.8200 • calcities.org August 10, 2026
TO: Cal Cities Members
RE: Cal Cities 2026 Resolution Packet
Sixty days before the Cal Cities Annual Conference and Expo, Cal Cities members may submit resolutions on issues of importance to cities. This year, Cal Cities received one resolution by the July 25 deadline.

The attached packet contains the proposed resolution, background information, supporting letters from cities and city officials, and an analysis of the resolution by Cal Cities. The packet includes detailed information on the resolution process and the next steps for the resolution.

We encourage each city council to consider the resolution and determine a position so your voting delegate can represent your city’s position on the resolution.

Voting Delegates: City councils must appoint a voting delegate to vote during the General Assembly. Each city may also appoint up to two alternate delegates. If your city has not already done so, please appoint your voting delegate by Tuesday, Sept. 1, 2026. The voting delegate packet contains more information.

The 2026 General Assembly will be held Friday, Sept. 25, at 8:30 a.m. in the Anaheim Convention Center during the Annual Conference and Expo.

For questions about resolutions, voting delegates, or the General Assembly, please contact Zach Seals.
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Resolution
Packet
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Information on 2026 Resolutions Process
Consideration by Policy Committee (pre-conference)
Per the Cal Cities bylaws, Cal Cities President Gabe Quinto has referred the submitted resolution to the Housing, Community, and Economic Development Committee. The committee will meet on Thursday, Sept. 17, at 10 a.m. via Zoom to review the resolution and make a recommendation that will be sent to the Resolutions Committee. A public comment period will be held during the meeting. Register for the meeting here.

A list of recommendations the policy committee may make during its meeting is on page two of this packet.

Consideration by Resolutions Committee (during conference) On Thursday, Sept. 24, at 1:00 p.m. the Resolutions Committee will meet to review the resolution and the recommendation of the policy committee.

The Resolutions Committee consist of one representative from each of Cal Cities caucuses, departments, divisions, and policy committees, as well as up to ten additional appointments made by the Cal Cities President. A public comment period will be held during the meeting. Refer to the onsite conference program for the location.

A list of recommendations the Resolutions Committee may make during its meeting is on page two of this packet.

Consideration by the General Assembly (during conference) The General Assembly will convene on Friday, Sept. 25, at 8:30 a.m. to consider any resolutions the Resolutions Committee has forwarded. To vote during the General Assembly, voting delegates must have checked in at the voting delegate booth.

Conference attendees will receive materials for the General Assembly on the evening of Thursday, Sept. 24. For more information on voting and discussion procedures during the General Assembly, see page three of this packet.

Petitioned Resolutions (during conference)
The petitioned resolution is an alternate method to introduce policy proposals during the annual conference. To initiate a petitioned resolution, voting delegates from 10% of member cities must sign the petition. The resolution and signatures are due at least 24 hours before the beginning of the General Assembly. Voting delegates who have checked in at the voting delegate booth can receive more information on petitioned resolutions at the booth onsite. 1 161
2026 Resolution Packet
Policy Committee and Resolutions Committee Actions
The submitted resolution will be heard by the policy committee to which it was assigned, and the Resolutions Committee. The table below shows what recommendations these bodies may make on the resolution.

Policy Committee Actions Resolutions Committee Actions
Approve Approve
Disapprove* Disapprove*
No Action No Action
Amend and approve Amend and approve
Refer to appropriate policy committee
for further study*
Approve as amended
Refer as amended to appropriate
policy committee for further study*
Refer to appropriate policy committee
for further study*
Refer as amended to appropriate
policy committee for further study*
Approve with additional
amendment(s)
Additional amendments and refer to
appropriate policy committee for
further study*
*If a resolution is disapproved or referred for further study by all policy committees to which it is assigned and the Resolutions Committee, it will not proceed to the General Assembly. 2 162
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General Assembly Voting and Discussion Procedures
Discussion Procedures:

Discussion procedures during the General Assembly are guided by two calendars:
the Consent Calendar and the Regular Calendar. As seen below, resolutions are calendared by the recommendations they receive from policy committees and the Resolutions Committee.

For General Resolutions:

Policy Committee
Recommendation
Resolutions Committee
Recommendation Calendar
Approve Approve Consent Calendar
Approve Disapprove or refer Regular Calendar
Disapprove or refer Approve Regular Calendar
Disapprove or refer Disapprove or refer Does not proceed to General Assembly
For Petitioned Resolutions:

Policy Committee
Recommendation Resolutions Committee Action Calendar
N/A
Approve Regular Calendar
Disapprove or Refer Regular Calendar
Disqualified Does not proceed to General
Assembly
Items on the Consent Calendar will be presented as one motion during the General Assembly from the Resolutions Committee chair. Unless an item on the Consent Calendar is set aside by the majority of the General Assembly, a vote will be taken on the whole calendar. If an item is set aside, it will be opened for discussion, followed by a vote.

Items on the Regular Calendar will be presented individually by the Resolutions Committee chair. After a recommendation is presented by the Resolutions Committee chair, the resolution will be opened for discussion by the General Assembly. A vote will take place following discussion.

Voting Procedures:

Per Cal Cities Bylaws Article XII, Sec. 2, all votes will be conducted by voice vote first. If the presiding official cannot determine the outcome, a vote will be taken by an alternative method, typically a raise of voting cards by voting delegates. A roll call vote may be called for by delegates of ten percent or more of the General Assembly.
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2026 Resolution

1. Resolution No. 1 submitted by City of Murrieta
• Letters of concurrence submitted by:
i. City of Banning;
ii. City of Calimesa;
iii. City of Canyon Lake;
iv. City of Moreno Valley;
v. City of Norco;
vi. City of Torrance;
vii. Crystal Ruiz, Mayor, City of San Jacinto;
viii. Jessica Alexander, Mayor, City of Temecula
• Referred to Housing, Community, and Economic Development Committee
• Policy Committee Recommendation:
• Resolutions Committee Recommendation:
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Resolution No. 1
Submitted by City of Murietta
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1. A RESOLUTION OF THE GENERAL ASSEMBLY OF THE LEAGUE OF CALIFORNIA CITIES

CALLING FOR A WORKING GROUP TO CONSIDER A STATE CONSTITUTIONAL

AMENDMENT OR OTHER FORM OF INITIATIVE TO ENSURE FINAL LOCAL AUTHORITY OVER

HOUSING AND LAND USE DECISIONS
Source: City of Murrieta
Concurrence of five or more cities/city officials
Cities/city officials: City of Banning; City of Calimesa; City of Canyon Lake; City of Moreno Valley; City of Norco; City of Torrance; Crystal Ruiz, Mayor, City of San Jacinto; Jessica Alexander, Mayor, City of Temecula
Referred to: Housing, Community, and Economic Development Policy Committee WHEREAS, California cities have historically been responsible for adopting general plans and zoning regulations, reviewing housing development proposals, and providing or coordinating the streets, water, wastewater, public safety, parks, transportation, and other infrastructure and services necessary to support responsible, environmentally sound, and well-planned residential growth; and
WHEREAS, the League of California Cities is dedicated to protecting and expanding local control for municipalities across the state to ensure their orderly growth and development; and
WHEREAS, the League of California Cities recognizes that local zoning is a primary function of cities and an essential component of home rule, and that a city’s general plan should guide its land use planning and strategic decision-making free from pre-emption by the state; and
WHEREAS, increasingly prescriptive statewide housing mandates and development approval requirements can override locally adopted plans, zoning standards, and public review procedures without adequately accounting for differences that exist in each unique jurisdiction in infrastructure capacity, water availability, wildfire and evacuation risks, environmental constraints, fiscal impacts, public service needs, and community priorities; and
WHEREAS, California’s housing goals can be more effectively advanced through state funding, streamlined environmental requirements, and voluntary partnerships that support housing production while preserving the authority of locally elected officials to determine how and where housing is best planned and approved; NOW, THEREFORE, BE IT RESOLVED, by the General Assembly of the League of California Cities, assembled during the Annual Conference in Anaheim, California, on September 25, 2026, that the League of California Cities support the development and advancement of a state constitutional amendment or other legislative, policy, or ballotbased strategies that restore and strengthen local authority over housing and land use matters within municipal boundaries, including general plans, housing elements, zoning, density, design and development standards, project siting, and the approval or denial of housing development applications; and
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BE IT FURTHER RESOLVED, that any constitutional amendment or alternative strategy should preserve the State’s authority to establish broad statewide housing goals and enforce constitutional and civil rights, fair housing requirements, building and life-safety standards, and generally applicable environmental protections, while protecting cities from state actions that compel, through funding conditions or state law, the approval of housing developments that are inconsistent with locally adopted requirements; override local zoning or density standards; or invalidate locally adopted housing or land use decisions when a city has planned in good faith to accommodate its regional housing needs allocation and maintains adequate capacity for housing at all income levels; and BE IT FURTHER RESOLVED, that the League of California Cities consider establishing a statewide working group or other appropriate committee(s) to evaluate and develop a proposed constitutional amendment or other legislative, policy, or ballot-based strategies to restore and strengthen local authority over housing and land use matters including but limited to: conducting appropriate legal, fiscal, and policy analyses; engaging cities and other stakeholders; and building a statewide coalition of proponent supporters in preparation for; the November 2030 General Election, or within another reasonable time frame as determined by the working group.
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Resolution No. 1: Background
Information
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Background Information for Resolution
Source: City of Murrieta
Background:

California cities are responsible for planning residential growth, adopting general plans and zoning regulations, reviewing development proposals, and providing or coordinating the infrastructure and public services necessary to support new housing. Since 2010, the State has enacted more than 500 housing-related laws that have increasingly shifted housing and land use authority away from local governments. These laws have expanded by-right development, limited locally adopted standards and review processes, and established enforcement mechanisms, including the builder’s remedy, that may override local plans and zoning. Although these measures are frequently presented as solutions to housing affordability, many increase development capacity or restrict local review without delivering the meaningful production of housing needed to address the housing crisis.

At the same time, the State has continued to prioritize increased development capacity without adequately accounting for the infrastructure, public services, economic realities, and safety measures necessary to support housing growth.

State mandates often fail to reflect local conditions, including roadway and utility capacity, water availability, wildfire exposure, environmental limitations, fiscal impacts, and the availability of essential services. Cities are consequently required to accommodate additional housing while receiving no funding or assistance to address the resulting infrastructure and service demands.

Local elected officials are directly accountable to the residents who experience the effects of development decisions and are responsible for balancing housing production with infrastructure capacity, public safety, environmental protection, fiscal sustainability, and community needs. Cities of all types in California have been grappling with this dynamic, ranging from urban to rural, coastal to inland, small to large, northern to southern, voicing concerns to legislative representatives with minimal responsiveness. This is an issue of statewide concern that needs the strength and diversity of the League of California Cities to pursue a long-term solution.

The proposed resolution directs the League of California Cities to establish a statewide working group to evaluate a constitutional amendment or other legislative, policy, or ballot-based strategies to restore and strengthen local authority over housing and land use decisions. The working group would be tasked with developing a more balanced framework that preserves the State’s role in establishing broad housing goals and enforcing constitutional, civil rights, fair housing, building, life-safety, and environmental requirements, while restoring meaningful local authority to allow cities to determine how statewide housing 9 169
2026 Resolution Packet
objectives should be implemented in a manner that reflects local conditions and community priorities while continuing to support responsible housing production.

As the primary statewide organization representing California cities, the League is uniquely positioned to lead this effort. Its established policy, legal, legislative, communications, and advocacy networks enable it to convene municipalities, evaluate potential strategies, conduct legal and fiscal analyses, build consensus, engage stakeholders, and coordinate with statewide decision-makers. League leadership would help ensure that any recommendation reflects the collective interests of California municipalities and would provide the credibility, organizational capacity, and statewide reach necessary to advance a viable strategy.
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Resolution No. 1: Letters of
Concurrence
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July 23, 2026
President Gabe Quinto
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
Subject: Support for a Resolution Establishing a Working Group to Evaluate a State Constitutional Amendment or Other Initiative to Restore Local Housing and Land Use Authority Dear President Quinto,
The City of Murrieta is sponsoring a resolution for consideration by the General Assembly of the League of California Cities to establish a statewide working group to evaluate a constitutional amendment or other legislative, policy, or ballot-based strategies to restore and strengthen local authority over housing and land use decisions.

The proposed resolution, together with the required background materials, will be submitted to Cal Cities for consideration at the 2026 Annual Conference in Orange County on September 24 and

25. The resolution would direct the League to convene a working group to evaluate potential approaches for addressing the increasingly broad and prescriptive state mandates affecting local housing, zoning, development standards, and project approval authority.

On behalf of the City of Canyon Lake, this letter confirms our support for the City of Murrieta’s submission of the proposed resolution and its consideration by the League of California Cities General Assembly at the 2026 Annual Conference.

Sincerely,
Arron Brown
City Manager
City of Canyon Lake
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July 23, 2026
President Gabe Quinto
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
Subject: Support for a Resolution Establishing a Working Group to Evaluate a State Constitutional Amendment or Other Initiative to Restore Local Housing and Land Use Authority Dear President Quinto,
The City of Murrieta is sponsoring a resolution for consideration by the General Assembly of the League of California Cities to establish a statewide working group to evaluate a constitutional amendment or other legislative, policy, or ballot-based strategies to restore and strengthen local authority over housing and land use decisions.

The proposed resolution, together with the required background materials, will be submitted to Cal Cities for consideration at the 2026 Annual Conference in Orange County on September 24 and 25. The resolution would direct the League to convene a working group to evaluate potential approaches to address increasingly broad and prescriptive state mandates affecting local housing, zoning, development standards, and project approval authority.

On behalf of the City of Moreno Valley, this letter confirms our support for the City of Murrieta’s submission of the proposed resolution and its consideration by the League of California Cities General Assembly at the 2026 Annual Conference.

Sincerely,
Brian Mohan
City Manager
City of Moreno Valley

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July 22, 2026
President Gabe Quinto
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
Subject: Support for a Resolution Establishing a Working Group to Evaluate a State Constitutional Amendment or Other Initiative to Restore Local Housing and Land Use Authority
Dear President Quinto,
The City of Murrieta is sponsoring a resolution for consideration by the General Assembly of the League of California Cities to establish a statewide working group to evaluate a constitutional amendment or other legislative, policy, or ballot-based strategies to restore and strengthen local authority over housing and land use decisions.

The proposed resolution, together with the required background materials, will be submitted to Cal Cities for consideration at the 2026 Annual Conference in Orange County on September 24 and 25. The resolution would direct the League to convene a working group to evaluate potential approaches for addressing the increasingly broad and prescriptive state mandates affecting local housing, zoning, development standards, and project approval authority.

On behalf of the City of the Norco, this letter confirms our support for the City of Murrieta’s submission of the proposed resolution and its consideration by the League of California Cities General Assembly at the 2026 Annual Conference.

Sincerely,
Kevin Bash
City Council Member
(951) 768-8981
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July 23, 2026
Mr. Gabe Quinto, President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
Subject: Support for the City of Murrieta's Resolution Establishing a Working Group to Evaluate a State Constitutional Amendment or Other Initiative to Restore Local Housing and Land Use Authority Dear President Quinto:

I am writing in my individual capacity as Mayor of the City of Temecula to express my strong support for the City of Murrieta's proposed resolution for consideration by the General Assembly of the League of California Cities at the 2026 Annual Conference.

The proposed resolution presents an important opportunity to thoughtfully evaluate the appropriate balance between California's statewide housing objectives and the constitutional principle of local governance. Establishing a statewide working group to examine a potential constitutional amendment, legislative reforms, or other policy initiatives will provide a meaningful forum to assess how local authority over housing and land use decisions can be strengthened while continuing to address the State's housing challenges.

Cities are uniquely positioned to understand the needs, opportunities, and constraints of their communities. Local elected officials are accountable to the residents they serve and are best equipped to make land use decisions that reflect a community's character, infrastructure capacity, economic development goals, environmental stewardship, and long-term vision. Equally important, local governments bear the primary responsibility for protecting public safety. Decisions regarding housing density, transportation, emergency access, wildfire preparedness, evacuation routes, police and fire service capacity, water availability, and critical infrastructure are inherently local matters that require the knowledge and judgment of those who serve their communities every day.

While the State has an important role in addressing California's housing needs, a collaborative approach that respects local expertise and preserves meaningful local discretion will produce stronger, safer, and more sustainable communities. The proposed working group offers an opportunity to evaluate policies that achieve these shared objectives while restoring an appropriate balance between state direction and local authority.
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Mr. Gabe Quinto, President
League of California Cities
July 23, 2026

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Although this letter reflects my personal position and is not an official action or policy of the City of Temecula or the Temecula City Council, I respectfully endorse the City of Murrieta's submission of this resolution and encourage its favorable consideration by the League of California Cities General Assembly.

Thank you for your leadership and your thoughtful consideration of this important issue.

Respectfully,
Jessica Alexander
Mayor, City of Temecula
Signing in her individual capacity
and not on behalf of the City of Temecula
or the Temecula City Council.
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2026 Resolution Packet
Resolution No. 1: Staff Analysis
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League of California Cities Staff Analysis on Resolution No. 1 Staff: Brady Guertin, Legislative Advocate
Committee: Housing, Community, and Economic Development Summary:

Resolution No.1 states that the League of California Cities (Cal Cities) will:

1. Support the development and advancement of a state constitutional amendment or legislative, policy, or ballot-based strategy that restores and strengthens local authority over housing and land use matters, including general plans, housing elements, zoning, density, design and development standards, project siting, and the approval or denial of housing development applications.

Pursuant to the resolution, the strategy should preserve the state’s authority to set broad, statewide housing goals and enforce civil rights, fair housing, building safety, and environmental standards while protecting local control by preventing the state from compelling the approval of developments that conflict with local requirements, override local zoning or density standards, or overturn local land use decisions where a city has planned for and maintained sufficient capacity to meet its housing obligations.

2. Consider establishing a statewide working group or other appropriate committee(s) to evaluate and develop a proposed constitutional amendment or other legislative, policy, or ballot-based strategies to restore and strengthen local authority over housing and land use matters.

The resolution states: “conducting legal, fiscal, and policy analyses; engaging cities and other stakeholders; and building a statewide coalition of proponent supporters in preparation for the November 2030 General Election, or within another reasonable time period.” Background:

As provided in the background information, the city of Murrieta is sponsoring this resolution in response to concerns over state laws that have increasingly reduced city discretion over housing and land use decisions, including legislation that requires ministerial or by-right approvals for housing projects, limits the application of local development standards, and strengthens state enforcement mechanisms against local governments.

Additionally, the city of Murrieta, in its background information, maintains that these legislative efforts have not resulted in sufficient housing production to address California's housing shortage and have not adequately accounted for 24 184
local infrastructure, public service needs, public safety, market, and fiscal considerations.

The resolution states that California’s housing goals are better advanced through state funding, streamlined environmental requirements, and voluntary partnerships, while preserving local authority over how and where housing is best planned and approved.

Consideration of the resolution may be informed by a brief examination of how the California Constitution allocates authority between the state and cities with respect to land use decisions.

The constitution grants cities the power to adopt local laws to protect the public’s health, safety, and welfare. This grant is called the “police power,” which is the basis for local land use regulation. The constitution grants charter cities the additional power to adopt local laws affecting “municipal affairs.” This power, commonly referred to as “home rule,” is based on the principle that a city, rather than the state, is in the best position to identify and satisfy the needs of the local community.

The constitution’s broad grant of police power contains a significant limitation.

Local law adopted under the police power is not valid if it “conflicts” with state law. A local law “conflicts” with state law when it regulates the same “field” in which the Legislature has stated its intent to occupy. In that case, state law is said to “preempt” the local law and it cannot be enforced.

An ordinance adopted by a charter city under the municipal affairs power cannot be enforced if it affects a “matter of statewide concern.” The subjects that have been identified as “matters of statewide concern” have changed over the years due to economic, social, and political circumstances.

Since the 1960s, the state has enacted numerous laws that limit or preempt aspects of local land use and zoning authority. These laws include the Fair Employment and Housing Act, Housing Element Law, Housing Accountability Act, Density Bonus Law, Permit Streamlining Act, accessory dwelling unit laws, California Environmental Quality Act, and others. In recent years, the state has enacted several laws that Cal Cities was the leading opposition force against, as many of the proposals pre-empted local land use authority, limited public review, and constrained local flexibility. In support of its housing and land use legislation, the Legislature has cited a statewide housing crisis and the need for increased housing production at all income levels while asserting that a uniform approach to local land use decision-making is required. 25 185
Discussion:

The resolution does not prescribe a specific policy mechanism. The eight letters in support recommend creating a working group or committee to evaluate potential approaches, including legislative proposals, constitutional amendments, or ballot initiatives to strengthen local authority over housing and land use matters.

A discussion of a strategy to restore and strengthen local authority over housing and land use matters will need to consider the California Constitution’s framework for both preemption of police power enactments and municipal affairs, discussed above. It will also need to determine whether changes to the California Constitution will be proposed, and whether they constitute an amendment or a revision, which require different processes.

A constitutional revision is a multistep process blending legislative consensus, voter support, and on occasion, a constitutional convention. It requires significant public engagement.

A constitutional amendment would require a ballot initiative, which includes gathering enough valid signatures to qualify for the ballot, building large coalitions to support election efforts, and campaigning to voters to support the initiative. This process can involve significant costs. In the last major election for ballot initiatives in 2024, proponents spent $8-$18 million to qualify for the ballot and spent nearly $700 million for the full election cycle, averaging out to about $100 million per ballot initiative.

Cal Cities has been engaged in ballot advocacy for over 20 years. In the early 2000s, Cal Cities developed a ballot advocacy infrastructure that included forming an issue political action committee, fundraising, establishing a network of regional managers, and building a coalition with other organizations to ultimately advocate on a ballot measure. Ballot advocacy requires the approval of the Board of Directors with a supermajority vote.

In the Legislature, Cal Cities plays an active and influential role to ensure that local flexibility and autonomy in the land use and housing space is maintained by engaging on dozens of bills every legislative session to ensure that cities' voices are heard at the state Capitol. Below, you will find Cal Cities “Existing Policy” on local control, housing, and land use policies.

Fiscal Impact
The resolution itself would not have a significant direct fiscal impact. However, depending on what actions follow, the fiscal costs could be significant. 26 186
Existing Cal Cities Policy
Vision
To be recognized and respected as the leading advocate for the common interests of California's cities.

Mission Statement
To expand and protect local control for cities through education and advocacy to enhance the quality of life for all Californians.

We Believe
• Local self-governance is the cornerstone of democracy. • Our strength lies in the unity of our diverse communities of interest. • In the involvement of all stakeholders in establishing goals and in solving problems.
• In conducting the business of government with transparency, openness, respect, and civility.
• The spirit of honest public service is what builds communities. • Open decision-making that is of the highest ethical standards honors the public trust.
• Cities are vital to the strength of the California economy. • The vitality of cities is dependent upon their fiscal stability and local autonomy.
• The active participation of all city officials increases the League's effectiveness.
• Partnerships and collaborations are essential elements of focused advocacy and lobbying.
• Ethical and well-informed city officials are essential for responsive, visionary leadership and effective and efficient city operations.

Zoning
Cal Cities believes local zoning is a primary function of cities and is an essential component of home rule. The process of adoption, implementation and enforcement of zoning ordinances should be open and fair to the public and enhance the responsiveness of local decision-makers. State policy should leave local siting and use decisions to the city and not interfere with local prerogative beyond providing a constitutionally valid procedure for adopting local regulations. State agency siting of facilities, including campuses and office buildings, should be subject to local notice and hearing requirements in order to meet concerns of the local community. Cal Cities opposes legislation that seeks to limit local authority over parking requirements.

Housing Element
Housing issues should be addressed in the general plan as other planning issues are. The housing element should be prepared for the benefit of local 27 187
governments and should have equal status with the other elements of the general plan.

Encourage Full Community Participation
Foster an open and inclusive community dialogue and promote alliances and partnerships to meet community needs.

Well-Planned New Growth
Recognize and preserve open space, watersheds, environmental habitats, and agricultural lands, while accommodating new growth in compact forms, in a manner that:
• De-emphasizes automobile dependency;
• Integrates the new growth into existing communities;
• Creates a diversity of affordable housing near employment centers; • Provides job opportunities for people of all ages and income levels.

Support:

The following letters of concurrence were received:

City of Banning
City of Calimesa
City of Canyon Lake
City of Moreno Valley
City of Norco
City of Torrance
Crystal Ruiz, Mayor, City of San Jacinto
Jessica Alexander, Mayor, City of Temecula
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City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Michelle Nance, Assistant City Clerk
Department: City Clerk’s Office
Subject: 2026 Conflict of Interest Code Biennial Notice Pursuant to the Political Reform Act Recommendation

1. Receive and file the 2026 Local Agency Biennial Notice.

2. Direct staff to promulgate the necessary amendments and return to the City Council in December 2026 for adoption pursuant to the Political Reform Act.

Background
The Political Reform Act requires every local government agency to review its Conflict of Interest Code biennially to determine whether amendments are necessary.

On June 11, 2026, the City Council adopted Resolution No. 2026-026, directing staff to review the City’s Conflict of Interest Code and file the required 2026 Local Agency Biennial Notice.

The biennial review must be completed and the required notice filed with the City’s code reviewing body no later than October 1, 2026. As the code reviewing body for the City of Palm Desert, the City Council is requested to receive and file the 2026 Local Agency Biennial Notice and direct staff to prepare any necessary amendments to the City’s Conflict of Interest Code for consideration and adoption prior to December 31, 2026, in compliance with the Political Reform Act.

Financial Impact
There is no financial impact associated with this action.

Attachments

1. 2026 Local Agency Biennial Notice
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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☐ Yes
☒ No
If yes, identify the project site:

Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

This agency has reviewed its conflict of interest code and has determined that (check one BOX):
� An amendment is required. The following amendments are necessary:
(Check all that apply.)
0 Include new positions
0 Revise disclosure categories
0 Revise the titles of existing positions
0 Delete titles of positions that have been abolished and/or positions that no longer make or participate in making governmental decisions
D Other (describe) _______________________ _
D The code is currently under review by the code reviewing body.

D No amendment is required. (If your code is over five years old, amendments may be necessary.)
Verification (to be completed if no amendment is required) This agency's code accurately designates all positions that make or participate in the making of governmental decisions. The disclosure assigned to those positions accurately requires that all investments, business positions, interests in real property, and sources of income that may foreseeably be affected materially by the decisions made by those holding designated positions are reported. The code includes all other provisions required by Government ode Section 87302.
9/1/2026
Date
All agencies must complete and return this notice regardless of how recently your code was approved or amended. Please return this notice no later than October 1, 2026, or by the date specified by your agency, if earlier, to:
(PLACE RETURN ADDRESS OF CODE REVIEWING BODY HERE)
PLEASE DO NOT RETURN THIS FORM TO THE FPPC.
www.fppc.ca.qov
FPPC Advice: [email protected] (866.275.3772)

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City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Michelle Nance, Assistant City Clerk
Department: City Clerk’s Office
Subject: Approval of the Third Amended and Restated Joint Powers Agreement for Visit Greater Palm Springs
Recommendation
Approve the Third Amended and Restated Joint Powers Agreement for Visit Greater Palm Springs and authorize the Mayor and City Manager to execute the agreement.

Executive Summary
Visit Greater Palm Springs (VGPS) is asking each of its member agencies to approve a Third Amended and Restated Joint Powers Agreement. The amendments do two things: (1) expand VGPS's purpose to include regional economic diversification and destination-enhancing infrastructure such as sports complexes, entertainment venues, and meeting facilities; and (2) expand VGPS's authority to form assessment, benefit, or financing districts, including districts made up of only those members that choose to participate.

Background
Visit Greater Palm Springs (VGPS) is a joint powers authority (JPA) established under the Joint Exercise of Powers Act (Cal. Gov. Code § 6500 et seq.). The City of Palm Desert is a member of VGPS along with the cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Springs, Rancho Mirage, and the County of Riverside.

The current operative agreement is the Second Amended and Restated Joint Powers Agreement, approved in June 2024. On June 26, 2026, the VGPS Executive Committee approved Resolution No. JPA 2026-003, approving amendments to the purpose and powers of the JPA and authorizing the Third Amended and Restated Joint Powers Agreement to be presented to the JPA member agencies for consideration.

Analysis
Approval of the Third Amended and Restated Joint Powers Agreement does not establish a new district, impose an assessment, or approve a specific sports complex project. Rather, approval expands the purpose and powers of VGPS and provides a framework for VGPS and participating member agencies to consider these opportunities in the future.

The Third Amended and Restated Joint Powers Agreement expands VGPS's stated purpose beyond its existing tourism and hospitality functions to include initiatives that strengthen and diversify the regional economy and facilitate destination-enhancing improvements and 193

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infrastructure. The agreement specifically identifies sports complexes, entertainment venues, and meeting facilities as examples of such improvements.

The proposed agreement also expands VGPS's powers related to the formation, renewal, and modification of assessment, benefit, or financing districts. These powers may be exercised regionally or within defined subareas of the JPA's territorial boundaries, allowing a regional district to include only those JPA members participating in the district.

For a regional district that does not include all JPA members, the formation, rate, and management district plan would be subject to approval by the legislative bodies of the JPA members within that district, consistent with applicable law. The agreement further authorizes VGPS to plan, finance, develop, construct, acquire, operate, and maintain tourism-related infrastructure and facilities, either directly or in partnership with public or private entities.

Environmental Review
This action is not a project under the California Environmental Quality Act because it is an administrative, organizational, procedural, fiscal, or informational activity that will not result in a direct or reasonably foreseeable indirect physical change in the environment.

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

Financial Impact
There is no fiscal impact associated with this action.

Attachments

1. Third Amended and Restated Joint Powers Agreement

2. Redline of Third Amended and Restated Joint Powers Agreement

3. VGPS Resolution No. JPA 2026-003

4. VGPS Staff Report
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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☐ Yes
☒ No
If yes, identify the project site:

Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

JOINT POWERS AGREEMENT
(“Third Amended and Restated Agreement”)
A California Joint Powers Authority
Created Pursuant to California Government Code Section 6500 et seq. _________________, 2026
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TABLE OF CONTENTS
RECITALS........................................................................................................................... 1 AGREEMENT..................................................................................................................... 2 Section 1 Definitions ....................................................................................... 2 Section 2 Incorporation of Recitals ................................................................. 3 Section 3 Purpose ............................................................................................ 3 Section 4 Name................................................................................................ 3 Section 5 Second Amended and Restated Agreement Superseded ................ 4 Section 6 Termination...................................................................................... 4 Section 7 JPA Members.................................................................................. 4 Section 8 Additional Members........................................................................ 4 Section 9 Governing Body............................................................................... 5 Section 10 JPA Executive Committee – Powers and Duties............................. 5 Section 11 Territorial Boundaries...................................................................... 6 Section 12 Contributions ................................................................................... 6 Section 13 Withdrawal ...................................................................................... 7 Section 14 Expulsion......................................................................................... 8 Section 15 Separate Entity................................................................................. 8 Section 16 Powers of the JPA............................................................................ 8 Section 17 Power to Invest .............................................................................. 11 Section 18 Bonding ......................................................................................... 11 Section 19 Treasurer and Auditor – Designations........................................... 11 Section 20 Treasurer – Duties and Responsibilities......................................... 11 198
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Section 21 Independent Audit ......................................................................... 12 Section 22 Auditor’s Duties ............................................................................ 12 Section 23 Attorney’s Fees.............................................................................. 12 Section 24 Voting............................................................................................ 12 Section 25 Severability .................................................................................... 12 Section 26 Waiver ........................................................................................... 13 Section 27 Amendments.................................................................................. 13 Section 28 Ambiguities or Uncertainties......................................................... 13 Section 29 Applicable Law.............................................................................. 13 Section 30 Venue............................................................................................. 13 Section 31 Notices........................................................................................... 13 Section 32 Counterparts................................................................................... 14 Section 33 Privileges and Immunities ............................................................. 14

EXHIBIT A
Territorial Boundaries.......................................................................................................... 18 199

VISIT GREATER PALM SPRINGS
Joint Powers Agreement - Third Amended and Restated Agreement 1 This Third Amended and Restated Joint Powers Agreement (this “Agreement”) is entered into by and between the cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs and Rancho Mirage, each an independent municipal corporation located in the County of Riverside, State of California, and the County of Riverside, a political subdivision of the State of California, pursuant to the Joint Exercise of Powers Act, as set forth in section 6500 et seq. of the California Government Code. The Joint Powers Authority is known as “Visit Greater Palm Springs” (“VGPS”). The parties to this Agreement are individually referred to herein as “JPA Member” and collectively as “JPA Members.”

RECITALS
WHEREAS, pursuant to the Joint Exercise of Powers Act, if authorized by their legislative or other governing bodies, two or more public agencies which include, but are not limited to, a county or city, may jointly exercise any power common to the contracting parties via a Joint Powers Agreement creating a Joint Powers Authority (“JPA”); and WHEREAS, the JPA Members entered into the original joint powers agreement on February 8, 1989, to jointly encourage, promote, and to do such other things as might be necessary to enhance, to the greatest extent possible, all aspects of the hospitality, convention and tourism industry in the Coachella Valley and to attract visitors from a world wide market, all to the benefit of the member organizations and their citizens via the exercise of all the expressed and implied powers the JPA Members have in common; and WHEREAS, it is intended by the JPA Members that this Agreement shall be amendatory of the Second Amended and Restated Joint Powers Agreement, dated June 14, 2024, including any subsequent amendments (“Second Amended and Restated Agreement”), and shall restate, amend and supersede the Second Amended and Restated Agreement in its entirety as of the Effective Date; and
WHEREAS, on or about _____________, 2026, it was determined by the VGPS President and Chief Executive Officer and his staff that at least two thirds of the entire VGPS Executive Committee and all of the JPA Members voted to amend the purpose and powers of JPA as set forth below, among additional provisions as stated herein; and WHEREAS, on or about _____________, 2026, it was determined by the VGPS President and Chief Executive Officer and his staff that at least two thirds of the entire VGPS Executive Committee and all of the JPA Members voted to approve for adoption and execution this Third Amended and Restated Joint Powers Agreement.

NOW, THEREFORE, in consideration of the terms and conditions hereinafter set forth, and intending to be legally bound hereby, the JPA Members hereby covenant and agree as follows:
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Joint Powers Agreement - Third Amended and Restated Agreement 2 AGREEMENT
Section 1. Definitions
The following words, terms and phrases shall have the following meanings:
“Additional JPA Members” shall mean qualified municipalities that may be added as members of JPA as described in Section 8.
“Board of Directors” shall mean the Board of Directors of the Greater Palm Springs Business Alliance (“GPSBA”) comprised of persons associated with the local hospitality industry for the purposes described in Section 10.
“Convention Hotel” shall mean a hotel, motel or similar property with 50 rooms or greater.
“Joint Exercise of Powers Act” shall mean California Government Code sections 6500-6536.
“JPA” shall mean the Joint Powers Authority and may also be referred to herein as VGPS.
“JPA Executive Committee” shall mean the JPA’s governing body formed for the purposes and having the powers and duties set forth in Section 10. “JPA Member” shall mean a municipality that is party to this Agreement. “JPA Members” shall mean, collectively, the municipalities that have entered into this Agreement.
“JPA Member Contributions” shall mean the annual contribution amounts duly established pursuant to Section 12.
“Lodging Establishments” shall mean any structure, which is occupied or intended or designed for use or occupancy by transients, including but not limited to hotel, resort, motel, inn and individually owned structures; single family homes, duplexes, triplexes, mobile homes, public or private clubs, campgrounds, mobile homes or house trailers at fixed locations, or other like structure or portion thereof and dwelling utilized for short term rental and subject to local transient occupancy tax.
“Partner” shall mean a non-governmental entity whose business and activities are directly related to the convention or tourism industry and the purposes ofthis Agreement. “President and Chief Executive Officer” shall mean the individual employed by VGPS, who is responsible for professionally supervising, managing, and administering VGPS’s dayto day affairs as described in paragraph (e) of Section 10 and elsewhere in this Agreement. 201

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Joint Powers Agreement - Third Amended and Restated Agreement 3 “TBID” shall mean Tourism Business Improvement District assessment. “Technical Advisory Committee” or “TAC” shall mean the committee which may be appointed by a majority vote of VGPS’s JPA Executive Committee for the purposes described in paragraph (d) of Section 10.
“Treasurer” shall mean the individual appointed by VGPS’s JPA Executive Committee to serve the functions described at Section 19 and may be the same individual appointed as Auditor.
“VGPS Fiscal Year” shall mean the period commencing July 1 of every year and ending June 30 of the following calendar year.
“Visit Greater Palm Springs” or “VGPS” shall mean the Joint Powers Authority formed by the cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs and Rancho Mirage, and the County of Riverside.

Section 2. Incorporation of Recitals
The foregoing recitals are incorporated into this Agreement by this reference as though fully set forth herein.

Section 3. Purpose
The purpose of VGPS is to benefit all JPA Members and their constituents by jointly:
(a) Marketing, attracting, encouraging, promoting, and doing such other things as might be necessary to enhance, to the greatest extent possible all aspects of the hospitality, convention, and tourism industry in the Coachella Valley and to maximize visitations from national and international markets;
(b) Doing such other things to drive, advance and support initiatives to strengthen and diversify all aspects of the regional economy of the Coachella Valley; and (c) Developing, fostering and facilitating Coachella Valley destination-enhancing improvements and infrastructure including, but not limited to, sports complexes, entertainment venues, and meeting facilities, either directly and/or forging dynamic public-private partnerships.

Section 4. Name
The name of the JPA shall be “Visit Greater Palm Springs” (“VGPS”) or such other name that may be changed at any time by a resolution approved and adopted by a two-thirds vote of the entire JPA Executive Committee.
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Joint Powers Agreement - Third Amended and Restated Agreement 4 Section 5. Second Amended and Restated Agreement Superseded - Effective Date
It is intended by the JPA Members that this Agreement shall be amendatory of the Second Amended and Restated Agreement and shall restate, amend and supersede the Second Amended and Restated Agreement. Upon its Effective Date, this Agreement shall govern the relationship of the JPA Members. This Agreement shall become effective on the date this Agreement is approved by a two-thirds vote of the entire membership of the JPA Executive Committee and a two-thirds vote of the JPA Members’ legislative bodies (“Effective Date”).

Section 6. Termination
(a) This Agreement may be terminated by unanimous vote of all the JPA Members’ legislative bodies provided, however, the foregoing shall not be construed as limiting the rights of a JPA Member to withdraw its membership in the JPA, and thus terminate this Agreement with respect to such withdrawing JPA Member as described in Section 13; and (b) Pursuant to section 6512 of the Government Code, upon termination of this Agreement and dissolution of the JPA, any surplus money on hand with the JPA shall be returned to the JPA Members’ treasuries in proportion to the JPA Member Contributions made by the respective JPA Member to the JPA.
(c) Upon termination of this Agreement and dissolution of the JPA, all of the resources of the JPA shall be used in an effort to ensure that 100% of the pension liability is funded. Pursuant to Government Code section 6508.2, any remaining obligations of the JPA pension plan and other post-employment benefit liabilities shall be assumed by JPA Members.

The JPA will maintain a policy of funding its pension liability at a minimum of 85% and will promptly notify JPA Members at any time this threshold is not met.

Section 7. JPA Members
The members of the JPA shall consist of the parties to this Agreement which include the cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs and Rancho Mirage, and the County of Riverside.

Section 8. Additional Members
Additional JPA Members that qualify to join a joint powers authority under the Joint Exercise of Powers Act may be added as JPA Members at any time by a two-thirds vote of the of the entire JPA Executive Committee and a unanimous vote of the JPA Members’ legislative bodies in compliance with all applicable provisions of the Joint Exercise of Powers Act and all other applicable laws.
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Joint Powers Agreement - Third Amended and Restated Agreement 5 Section 9. Governing Body
(a) The governing body of the JPA shall be known as the JPA Executive Committee and it shall be comprised of: (i) a duly elected or appointed council member of each city JPA Member; and (ii) a member ofthe Riverside County Board of Supervisors. (b) Only those members of the JPA Executive Committee, whose agencies pay the JPA Member Contributions, as set forth in this Agreement, shall be entitled to vote.

Section 10. JPA Executive Committee - Powers and Duties The JPA Executive Committee, consistent with this Agreement and all applicable laws, shall exercise all the powers and perform all duties necessary to conduct the business ofthe JPA, either directly or by delegation of its authority, as the JPA Executive Committee deems appropriate, which shall include but not be limited to the following:
(a) Adopt bylaws or rules of procedure to provide for the organization and administration of the JPA, as the JPA Executive Committee deems appropriate by a majority vote of the JPA Executive Committee;
(b) Approve and adopt a budget for the JPA prior to the commencement of the JPA’s subsequent fiscal year, the term of which shall be set by a majority vote of the JPA Executive Committee;
(c) Delegate authority to manage destination activities and the daily operations of VGPS to GPSBA, including but not limited to strategic development, marketing, travel trade, public relations, human resources and group sales, and employ an individual who shall serve as the President and Chief Executive Officer of the JPA, who shall be responsible for professionally supervising, managing and administering the day-to-day affairs of the JPA, hire and fire JPA employees, retain consultants and independent contractors and perform such other functions as needed. Termination of the President & Chief Executive Officer will require a majority vote of the JPA Executive Committee and GPSBA Board of Directors. The Board of Directors of the GPSBA shall consist of any number of persons associated with the local hospitality industry, which may include, but not be limited to, those who own, manage, govern or serve in senior staff positions for Lodging Establishments or businesses, eateries, public and private regional sports facilities, public and private museums, public and private convention and conference facilities, commercial air transport facilities, commercial ground transportation businesses, plus any other persons from any other industry deemed appropriate. The GPSBA shall manage the destination operations of VGPS, and shall be governed by bylaws, as amended from time to time.

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Joint Powers Agreement - Third Amended and Restated Agreement 6 employed by each JPA Member as designated by the respective JPA Executive Committee member, for purposes of advising the JPA Executive Committee on any technical issues of the JPA that the JPA Executive Committee may need advice on; (e) Retain an individual licensed to practice law in the State of California who shall serve as General Legal Counsel for the JPA and who shall assist the JPA with any legal assistance as may be requested by the JPA Executive Committee or President/Chief Executive Officer or their authorized designees; and
(f) Create any committees, sub-committees, and advisory committees, as deemed necessary by a majority vote of the JPA Executive Committee, to advance and/or achieve the purposes set forth in this Agreement.
(g) Pursuant to Section 6509 of the Government Code, the powers set forth in this Agreementshall be subject to the restrictions upon the manner of exercising such similar powers as are imposed on the City ofRancho Mirage in the exercise ofsimilar powers.

Section 11. Territorial Boundaries
The JPA’s territorial boundaries include the lands situated within the unincorporated areas of the Coachella Valley situated in the County of Riverside and the lands situated within the jurisdictional boundaries of the cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Springs, Palm Desert and Rancho Mirage, as depicted in Exhibit A of this Agreement. The territorial boundaries of the VGPS may only be changed by a two-thirds vote of the JPA Executive Committee and a unanimous vote ofthe JPA Members’ legislative bodies.

Section 12. Contributions
(a) Initial Membership Fee. Each new JPA Member shall pay to the JPA a one-(1) time entry fee and operation fee calculated as follows:
(i) Entry Fee: The “Entry Fee” shall be calculated by multiplying the new JPA Member’s current fiscal year’s gross revenue estimate by .55%. (ii) Operation Fee: The “Operation Fee” shall be calculated by multiplying the Entry Fee by 15.62%.

The sum of the Entry Fee and the Operation Fee is due within thirty (30) days of a new JPA Member joining the JPA.
(b) Annual Contribution. Each JPA Member shall pay to the JPA (i) the greater of $35,000 each year, or (ii) the applicable contribution amounts as set forth in the formula below, which may only be modified by a two-thirds vote of the entire JPA Executive Committee and a unanimous vote ofthe JPA Members’ legislative bodies. JPA Members’ legislative bodies shall, at a minimum, make quarterly payments of the annual contribution to VGPS. 205

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Joint Powers Agreement - Third Amended and Restated Agreement 7 A contribution from each ofthe JPA Members is a funding mechanism equal to:
.0015 x Gross Room Rental Revenue for Lodging Establishments excluding Convention Hotels, and
.0035 x Gross Room Rental Revenue for Convention Hotels (c) The Gross Room Rental Revenue described herein shall not include any transient occupancy tax rebate incentives provided by the JPA Members.

Section 13. Withdrawal
Any Party may withdraw as a JPA Member and the obligations under this Agreement subject to the following conditions:
(a) The withdrawing JPA Member’s legislative body submits a duly adopted resolution to the JPA Executive Committee providing Notice ofWithdrawal. (b) The effective date of withdrawal shall always be the last day of the VGPS’s Fiscal Year.
(c) All JPA Member Contributions must be paid in full by the withdrawing JPA Member through the end of the current VGPS Fiscal Year of the year when the withdrawing JPA Member provides its Notice ofWithdrawal as well as the following VGPS Fiscal Year. (d) After giving notice of withdrawal, a withdrawing JPA Member shall not have voting privileges on the JPA Executive Committee except for operating budget items through the effective date of withdrawal.
(e) A withdrawing JPA Member may again become a party to this Agreement on condition that it pays to the treasury of the VGPS an amount equal to all JPA Member Contributions which the withdrawing JPA Member would have been required to pay if it had not withdrawn from participation.
(f) Partners within the territorial boundaries of the VGPS may remain active Partners as long as their respective government entity is a JPA Member and during the period of their JPA Member’s withdrawal from the Joint Powers Agreement. (g) In the event of withdrawal by a JPA Member, the JPA shall continue to be entitled to the full amount of the TBID unless and until the TBID expires without renewal or is disestablished pursuant to the Property and Business Improvement District Law of 1994, Streets & Highways Code §36600 et seq. The withdrawing JPA Member shall continue to be responsible for collecting the TBID on a monthly basis (including any delinquencies, penalties and interest) from each assessed business and forwarding the same to the JPA. 206

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Joint Powers Agreement - Third Amended and Restated Agreement 8 Section 14. Expulsion
A JPA Member may be expelled or suspended by a two-thirds (2/3) vote of the VGPS Executive Committee for an event of breach of this Agreement or the Bylaws, as amended from time to time, as determined by the remaining members of the JPA Executive Committee. The procedures for hearing and notice of expulsion and suspension shall be set forth in the bylaws of the JPA Executive Committee.

Section 15. Separate Entity
Except for termination as provided in Section 6 of this Agreement, pursuant to section 6507 of the Government Code, this JPA shall at all times be an independent public entity separate from the parties to this Agreement, and the debts, liabilities and obligations of the JPA shall be its sole responsibility and shall not become the debts, liabilities, or obligations of any one JPA Member except that any JPA Member may separately contract for, or assume responsibility for specific debts, liabilities, or obligations of the JPA.

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Joint Powers Agreement - Third Amended and Restated Agreement 9 (i) The power to incur debts, liabilities or obligations, including without limitation the power to borrow money, give security therefore, and purchase on contract; (j) The power to raise revenue for any public purpose consistent with the JPA’s purposes, as set forth in this Agreement, through any legal and appropriate means including assessments which may be established and levied pursuant to the Parking and Business Improvement Area Law of 1989, Streets & Highways Code §36500 et seq., the Property and Business Improvement District Law of 1994, Streets & Highways Code §36600 et seq., and any other applicable provisions of California law authorizing the formation of assessment, benefit, or financing districts as referenced in Section 16(l); (k) The power to form, renew, and modify improvement districts including all Lodging Establishments, as defined in Section 1, pursuant to the Parking and Business Improvement Area Law of 1989, Streets & Highways Code §36500 et seq., and the Property and Business Improvement District Law of 1994, Streets & Highways Code §36600 et seq., as well as any other applicable provisions of California law authorizing the formation of assessment, benefit, or financing districts, which authorizes joint powers agencies to establish, modify and renew parking and business improvement areas and property and business improvement districts for the purpose of tourism promotion, destination marketing, economic development, and the financing, development, operation, and maintenance of public and private improvements, facilities, and infrastructure, including sports, entertainment, meeting, cultural, and related uses. Approval of this Agreement by the JPA Members constitutes consent to:
(i) the formation of the Greater Palm Springs Convention & Visitors Bureau Tourism Marketing District adopted pursuant to Ordinance No. 2013-001, including all proceedings and actions previously taken by the VGPS in connection with formation of the said district (“2013 TMD”); and
(ii) the formation of the Greater Palm Springs Tourism Business Improvement District pursuant to Resolution No. 2016-004 and to levy an assessment of three percent (3%) on Convention Hotels;
(iii) the renewal of the Greater Palm Springs Tourism Business Improvement District pursuant to Ordinance No. 2020-005 (“2021 TBID”) and to levy an assessment of three percent (3%) on Convention Hotels and one percent (1%) on vacation rentals; (l) The power to form these districts, as discussed in the prior section, Section 16(l), and incorporated herein by this reference, shall extend to the ability to establish such districts on a regional basis or within defined subareas of the JPA’s territorial boundaries (“Regional Districts”) that include only those JPA Members in those Regional Districts. Those Regional Districts may, or may not, include all JPA Members depending on the makeup and reach of the Regional District. For any Regional District that does not include all JPA Members within its boundary, the formation, rate, and management district plan shall be subject to approval by the legislative bodies of only the JPA Members in those Regional Districts and may be approved by a majority vote of those JPA Members’ legislative bodies, within those Regional Districts, consistent with applicable law. Incidental to this power to form these Regional Districts will be the power to plan, finance, develop, construct, acquire, operate, and maintain tourism-related 208

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Joint Powers Agreement - Third Amended and Restated Agreement 10 infrastructure and facilities, including but not limited to sports complexes, entertainment venues, meeting facilities, and other visitor-serving improvements, either directly or in partnership with public or private entities;
(m) The power to adopt rules, regulations, resolutions and ordinances that may be necessary or proper to carry out the purposes and intent of the JPA; (n) The power to enforce rules, regulations, resolutions and ordinances for the administration, maintenance and operation of the JPA;
(o) The power to enter into joint powers agreements pursuant to the Joint Exercise of Powers Act, as set forth in section 6500 et seq. of the Government Code; (p) The power to provide insurance pursuant to section 989 of the Government Code et seq.;
(q) The power to sue and be sued in the name of the JPA; (r) The power to conduct certain activities of the JPA in any state or territory of the United States of America or in any foreign country, related to growing and diversifying the economy through promoting and marketing all aspects of the hospitality, convention and tourism industry in the Coachella Valley for the purpose of attracting visitors, groups, meetings, conventions and new businesses from national and international markets, as permitted pursuant to Government Code section 37110;
(s) The power to travel domestically and internationally that is necessary or proper in carrying out the purposes and intent of the JPA;
(t) The power to provide staff and resource support, financial assistance and subsidies to other public agencies, non-profit organizations and the private sector for purposes consistent with the purpose and intent of the JPA;
(u) The power to lobby on behalf of tourism and economic development; (v) The power to form a non-profit corporation or other affiliated non-profit entities for the purpose of promoting and enhancing all aspects of the tourism and economic development industry; and
(w) The power to take any and all actions necessary for, or incidental to, the powers expressed or implied by this Agreement and all applicable laws. 209

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Joint Powers Agreement - Third Amended and Restated Agreement 11 Section 17. Power to Invest
Pursuant to Government Code section 6509.5, the JPA shall have the power to invest any money in its treasury pursuant to the provisions set forth in Government Code section 6505.5 that is not required for the immediate necessities of the JPA, as the JPA may determine from time to time is advisable, in the same manner and upon the same conditions as local agencies pursuant to Government Code section 53601.

Section 19. Treasurer and Auditor - Designations
Pursuant to Government Code section 6505.6, the JPA Executive Committee shall designate by resolution an officer or employee of the JPA to fill the functions of Treasurer and Auditor of the JPA, and the JPA Executive Committee may appoint one qualified person to serve as both Treasurer and Auditor or two qualified persons to serve as each separately.

Section 20. Treasurer - Duties and Responsibilities
Pursuant to section 6505.5 Government Code, the Treasurer shall do all of the following:
(a) Receive and receipt (account) for all money of the JPA and place it in the treasury of the Treasurer so designated to the credit of the JPA; (b) Be responsible, upon his or her official bond, for the safekeeping and disbursement of all JPA money so held by the Treasurer; (c) Pay when due, out of the money of the JPA held by the Treasurer, all sums payable on outstanding bonds and coupons of the JPA;
(d) Pay any other sums due from the JPA from JPA money, or any portion thereof, only upon warrants of the public officer performing the functions of auditor or controller who has been designated by this Agreement; and
(e) Verify and report in writing no less than five (5) times per year to the President/Chief Executive Officer, the JPA Executive Committee and to all Parties financial statement of activities for the year.
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Joint Powers Agreement - Third Amended and Restated Agreement 12 Section 21. Independent Audit
Pursuant to section 6505.6 of the Government Code, the Treasurer shall cause an independent audit to be made by a certified public accountant or public accountant, in compliance with section 6505 of the Government Code.

Section 22. Auditor’s Duties
The Auditor shall perform the following duties:
(a) Review and recommend to the JPA Executive Committee accounting procedures and policies governing the JPA;
(b) Review and approve all demands listed on the Warrant Registers prior to submittal to the JPA Executive Committee;
(c) Review payroll registers at least monthly;
(d) Review all financial reports being submitted to the JPA Executive Committee and make the JPA Executive Committee aware of any discrepancies or potential problems in the reports;
(e) Review investments made by the President or Treasurer; (f) Review the audit report prepared by a Certified Public Accounting firm prior to finalization of the report and submittal to the JPA Executive Committee; and (g) Assist staff in the selection of the Certified Public Accounting firm.

Section 23. Attorney’s Fees
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to an award of its actual and reasonable attorney's fees, costs and expenses incurred in the proceeding.

Section 24. Voting
Each JPA Member shall have an equal vote. A motion considered by the JPA Executive Committee shall require a majority of votes cast (more than half) to pass such motion. In the event of a tie vote, such motion before the JPA Executive Committee shall be deemed defeated.

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Joint Powers Agreement - Third Amended and Restated Agreement 13 Agreement as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement.

Section 26. Waiver
All waivers must be in writing to be effective or binding upon the waiving Party, and no waiver shall be implied from any omission by a Party to take any action.

Section 27. Amendments
This Agreement may be amended from time to time by a two-thirds vote of the entire JPA Executive Committee and a unanimous vote of the JPA Members’ legislative bodies in compliance with all applicable provisions of the Joint Exercise of Powers Act and all other applicable laws.

Section 28. Ambiguities or Uncertainties
The JPA Members have mutually negotiated the terms and conditions of this Agreement and each JPA Member received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions contained herein.

As such, this Agreement is a product of the joint drafting efforts of all JPA Members and none of the JPA Members shall be deemed to have solely or independently prepared or framed this Agreement. Therefore, any ambiguities or uncertainties are not to be construed against or in favor of any JPA Member.

Section 29. Applicable Law
This Agreement shall be construed and enforced in accordance with the laws of the State of California.

Section 30. Venue
In the event that suit is brought by any party to this Agreement, the parties agree that venue shall be exclusively vested in the State courts of the County of Riverside, California or where appropriate, in the United States District Court, Southern District of California, Riverside, California.

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Joint Powers Agreement - Third Amended and Restated Agreement 14 City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Attention: City Manager
City of Coachella
53990 Enterprise Way
Coachella, CA 92236
Attention: City Manager
City of Desert Hot Springs
11999 Palm Drive
Desert Hot Springs, CA 92240
Attention: City Manager
City of Indian Wells
44950 Eldorado Drive
Indian Wells, CA 92210
Attention: City Manager
City of Indio
100 Civic Center Mall
Indio, CA 92201
Attention: City Manager
City of La Quinta
78495 Calle Tampico
La Quinta, CA 92253
Attention: City Manager
City of Palm Desert
73510 Fred Waring Drive
Palm Desert, CA 92260
Attention: City Manager
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
Attention: City Manager
City of Rancho Mirage
69825 Highway 111
Rancho Mirage, CA 92270
Attention: City Manager
County of Riverside
County Administration Center
4080 Lemon Street
Riverside, California 92501
Attention: County Clerk
Section 32. Counterparts
This Agreement may be executed in duplicate counterpart originals, each of which is deemed to be an original, and all of which when taken together shall constitute one and the same instrument.

Section 33. Privileges and Immunities
Pursuant to section 6513 of the Government Code, all of the privileges and immunities from liability, exemptions from laws, ordinances and rules, all pension, relief, disability, workmen’s compensation, and other benefits which apply to the activity of officers, agents or employees of any the Parties when performing their respective functions within the territorial limits of their respective public agencies, shall apply to them to the same degree and extent while engaged in the performance of any of their functions and duties performed extraterritorially under the provisions of this Agreement. [SIGNATURES APPEAR ON THE FOLLOWING PAGES]
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Joint Powers Agreement - Third Amended and Restated Agreement 15 IN WITNESS WHEREOF, the duly authorized representatives of the JPA Members have each executed this Agreement.

CITY OF CATHEDRAL CITY
_________________________________
Raymond Gregory, Mayor
Dated: ___________________________
_________________________________
Andrew “Andy” Firestine, City Manager
ATTEST:
_________________________________
Chrstina Burton, City Clerk
APPROVED AS TO FORM:
________________________________
Eric S. Vail, City Attorney

CITY OF COACHELLA
_________________________________
Dr. Frank Figueroa, Mayor
Dated: ___________________________
_________________________________
Gustavo Romo, City Manager
ATTEST:
_________________________________
Angela M. Zepeda, City Clerk
APPROVED AS TO FORM:
________________________________
Ryan Guiboa, City Attorney

CITY OF DESERT HOT SPRINGS
_________________________________
Scott Matas, Mayor
Dated: ___________________________
_________________________________
Doria Wilms, City Manager
ATTEST:
_________________________________
Jerryl Soriano, CMC, City Clerk
APPROVED AS TO FORM:
________________________________
Jennifer Mizrahi, City Attorney

CITY OF INDIAN WELLS
_________________________________
Dr. Toper Taylor, Mayor
Dated: ___________________________
_________________________________
Christopher Freeland, City Manager
ATTEST:
_________________________________
Angelica Avila, City Clerk
APPROVED AS TO FORM:
________________________________
Todd Leishman, City Attorney
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Joint Powers Agreement - Third Amended and Restated Agreement 16 CITY OF INDIO
_________________________________
Elaine Holmes, Mayor
Dated: ___________________________
_________________________________
Jonathan Nicks, City Manager
ATTEST:
_________________________________
Cynthia Hernandez, City Clerk
APPROVED AS TO FORM:
________________________________
Steven P. Graham, City Attorney

CITY OF LA QUINTA
_________________________________
Linda Evans, Mayor
Dated: ___________________________
_________________________________
Jon McMillen, City Manager
ATTEST:
_________________________________
Monika Redeva, City Clerk
APPROVED AS TO FORM:
________________________________
William H. Ihrke, City Attorney

CITY OF PALM DESERT
_________________________________
Evan Trubee, Mayor
Dated: ___________________________
_________________________________
Chris Escobedo, City Manager
ATTEST:
_________________________________
Anthony Mejia, City Clerk
APPROVED AS TO FORM:
________________________________
Isra Shah, City Attorney

CITY OF PALM SPRINGS
_________________________________
Naomi Soto, Mayor
Dated: ___________________________
_________________________________
Scott Stiles, City Manager
ATTEST:
_________________________________
Brenda Pree, City Clerk
APPROVED AS TO FORM:
________________________________
Jeffrey Ballinger, City Attorney
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Joint Powers Agreement - Third Amended and Restated Agreement 17 CITY OF RANCHO MIRAGE
_________________________________
Lynn Mallotto, Mayor
Dated: ___________________________
_________________________________
Isaiah Hagerman, City Manager
ATTEST:
_________________________________
Kristie Ramos, City Clerk
APPROVED AS TO FORM:
________________________________
Colin D. Kirkpatrick, City Attorney

COUNTY OF RIVERSIDE
____________________________________
Karen Spiegel, Chairman
____________________________________
Jeff Van Wagenen, County Executive
Manager
ATTEST:
____________________________________
Kimberly A. Rector, Clerk of the Board
APPROVED AS TO FORM:
____________________________________
Minh Tran, County Counsel
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TERRITORIAL BOUNDARIES
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JOINT POWERS AGREEMENT
(“Second Third Amended and Restated Agreement”)
A California Joint Powers Authority
Created Pursuant to California Government Code Section 6500 et seq. _________________, 20264
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TABLE OF CONTENTS
RECITALS........................................................................................................................... 1 AGREEMENT................................................................................................................... 21 Section 1 Definitions ..................................................................................... 12 Section 2 Incorporation of Recitals ................................................................. 3 Section 3 Purpose ............................................................................................ 3 Section 4 Name................................................................................................ 3 Section 5 First Second Amended and Restated Agreement Superseded – Eff.ective Date 34
Section 6 Termination.................................................................................... 43 Section 7 JPA Members.................................................................................. 4 Section 8 Additional Members........................................................................ 4 Section 9 Governing Body4Section 9
Governing Body............................................................................... 5 Section 10 JPA Executive Committee – Powers and Duties........................... 54 Section 11 Territorial Boundaries.................................................................... 65 Section 12 Contributions ................................................................................... 6 Section 13 Withdrawal .................................................................................... 76 Section 14 Expulsion/Withdrawal……………………………………………. 7
Section 1415 Separate Entity............................................................................... 67 Section 1516 Powers of the JPA.......................................................................... 78 Section 1617 Power to Invest .............................................................................910 Section 1718 Bonding ........................................................................................910 Formatted: Strikethrough
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Section 1819 Treasurer and Auditor – Designations..........................................910 Section 1920 Treasurer – Duties and Responsibilities........................................911 Section 2021 Independent Audit ..................................................................... 1011 Section 2122 Auditor’s Duties ........................................................................ 1011 Section 23 Attorney’s Fees……………………………………………………. 12
Section 24 Voting…………………………………………………………….. 12
Section 2225 Severability................................................................................ 1012 Section 2326 Waiver ....................................................................................... 1013 Section 2427 Amendments.............................................................................. 1013 Section 2528 Ambiguities or Uncertainties..................................................... 1113 Section 2629 Applicable Law.......................................................................... 1113 Section 2730 Venue..........................................................................................1113 Section 2831 Notices........................................................................................1113 Section 2932 Counterparts............................................................................... 1214 Section 3033 Privileges and Immunities ......................................................... 1214

EXHIBIT A
Territorial Boundaries16Territorial Boundaries
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This Second Third Amended and Restated Joint Powers Agreement (this “Agreement”) is entered into by and between the cities of Cathedral City,Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs and Rancho Mirage, each an independent municipal corporation located in the County of Riverside, State of California, and the County of Riverside, a political subdivision of the State of California, pursuant to the Joint Exercise of Powers Act, as set forth in section 6500 et seq. of the California Government Code. The Joint Powers Authority is known as “Visit Greater Palm Springs” (“VGPS”). The parties to this Agreement are individually referred to herein as “JPA Member” and collectively as “JPA Members.”

RECITALS
WHEREAS, pursuant to the Joint Exercise of Powers Act, if authorized by their legislative or other governing bodies, two or more public agencies which include, but are not limited to, a county or city, may jointly exercise any power common to the contracting parties via a Joint Powers Agreement creating a Joint Powers Authority (“Authority (“JPA”); and WHEREAS, the JPA Members entered into the original joint powers agreement on February 8, 1989, to jointly encourage, promote, and to do such other things as might be necessary to enhance, to the greatest extent possible, all aspects of the hospitality, convention and tourism industry in the Coachella Valley and to attract visitors from a world- wide market, all to the benefit of the member organizations and their citizens via the exercise of all the expressed and implied powers the JPA Members have in common; and WHEREAS, it is intended by the JPA Members that this Agreement shall be amendatory of the First Second Amended and Restated Joint Powers Agreement, dated January June 14, 202420, 2016, including any subsequent amendments (“First Second Amended and Restated Agreement”), and shall restate, amend and supersede the First Second Amended and Restated Agreement in its entirety as of the Effective Date; and WHEREAS, on or about _____________, 20264, it was determined by the VGPS President and Chief Executive Officer and his staff that at least two thirds of the entire VGPS Executive Committee and all of the JPA Members voted to (i) add the City of Coachella as a JPA Member, (ii) add the City of Coachella to the territorial boundaries of the JPA; and (iii) amend the purpose and purpose powers of JPA as set forth below, among additional provisions as stated herein; and
WHEREAS, on or about _____________, 20264, it was determined by the VGPS President and Chief Executive Officer and his staff that at least two thirds of the entire VGPS Executive Committee and all of the JPA Members voted to approve for adoption and execution this Second Third Amended and Restated Joint Powers Agreement.

NOW, THEREFORE, in consideration of the terms and conditions hereinafter set forth, and intending to be legally bound hereby, the JPA Members hereby covenant and agree as follows:

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AGREEMENT
Section 1. Definitions
The following words, terms and phrases shall have the following meanings:
“Additional JPA Members” shall mean qualified municipalities that may be added as members of JPA as described in Section 8.
“Board of Directors” shall mean the Board of Directors of the Greater Palm Springs Business Alliance (“GPSBA”) comprised of persons associated with the local hospitality industry for the purposes described in Section 10.
“Convention Hotel” shall mean a hotel, motel or similar property with 50 rooms or greater.
“Joint Exercise of Powers Act” shall mean California Government Code sections 6500-6536.
“JPA” shall mean the Joint Powers Authority and may also be referred to herein as VGPS.
“JPA Executive Committee” shall mean the JPA’s governing body formed for the purposes and having the powers and duties set forth in Section 10. “JPA Member” shall mean a municipality that is party to this Agreement. “JPA Members” shall mean, collectively, the municipalities that have entered into this Agreement.
“JPA Member Contributions” shall mean the annual contribution amounts duly established pursuant to Section 12.
“Lodging Establishments” shall mean any structure, which is occupied or intended or designed for use or occupancy by transients, including but not limited to hotel, resort, motel, inn and individually owned structures; single family homes, duplexes, triplexes, mobile homes, public or private clubs, campgrounds, mobile homes or house trailers at fixed locations, or other like structure or portion thereof and dwelling utilized for short term rental and subject to local transient occupancy tax.
“Partner” shall mean a non-governmental entity whose business and activities are directly related to the convention or tourism industry and the purposes of this Agreement. “President and Chief Executive Officer” shall mean the individual employed by VGPS, who is responsible for professionally supervising, managing, and administering VGPS’s dayto- day affairs as described in paragraph (e) of Section 10 and elsewhere in this Agreement. “TBID” shall mean Tourism Business Improvement District assessment. 223
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“Technical Advisory Committee” or “TAC” shall mean the committee which may be appointed by a majority vote of VGPS’s JPA Executive Committee for the purposes described in paragraph (d) of Section 10.
“Treasurer” shall mean the individual appointed by VGPS’s JPA Executive Committee to serve the functions described at Section 19 and may be the same individual appointed as Auditor.
“VGPS Fiscal Year” shall mean the period commencing July 1 of every year and ending June 30 of the following calendar year.
“Visit Greater Palm Springs” or “VGPS” shall mean the Joint Powers Authority formed by the cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs and Rancho Mirage, and the County of Riverside.

Section 2. Incorporation of Recitals
The foregoing recitals are incorporated into this Agreement by this reference as though fully set forth herein.

Section 3. Purpose
The purpose of VGPS is to benefit all JPA Members and their constituents by jointly:
(a) Marketing, attracting, encouraging, promoting, and doing such other things as might be necessary to enhance, to the greatest extent possible, all aspects of the hospitality, convention, and tourism industry in the Coachella Valley and to maximize attract visitationors from national and international markets; ; and
(a)
(b) Doing such other things to drive, advance and support promote and strengthen initiatives to strengthen and diversify all aspects of the regional economy related to the hospitality, convention and tourism industry, and the diversification of the entire economy of the Coachella Valley; and
(c)
(b) Developing, fostering and facilitating Coachella Valley destination-enhancing improvements and infrastructure including, but not limited to, .sports complexes and entertainment venues, either directly and/or forging dynamic public-private partnerships.

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Section 5. First Second Amended and Restated Agreement Superseded - Effective Date
It is intended by the JPA Members that this Agreement shall be amendatory of the First Second Amended and Restated Agreement and shall restate, amend and supersede the First Second Amended and Restated Agreement. Upon its Effective Date, this Agreement shall govern the relationship of the JPA Members. This Agreement shall become effective on the date this Agreement is approved by a two-thirds vote of the entire membership of the JPA Executive Committee and a two-thirds vote of the JPA Members’ legislative bodies (“Effective Date”).

The JPA will maintain a policy of funding its pension liability at a minimum of 85% and will promptly notify JPA Members at any time this threshold is not met.

Section 9. Governing Body
(a) The governing body of the JPA shall be known as the JPA Executive Committee 225
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and it shall be comprised of: (i) a duly elected or appointed council member of each city JPA Member; and (ii) a member ofthe Riverside County Board of Supervisors. (b) Only those members of the JPA Executive Committee, whose agencies pay the JPA Member Contributions, as set forth in this Agreement, shall be entitled to vote.

Activities other than tourism related activities, such as but not limited to economic diversification efforts, shall remain the responsibility of the JPA and shall be governed by the JPA Members and/or their assignee(s) as determined by the JPA Executive Committee. (d) Appoint from time to time, if deemed necessary by a majority vote of the JPA Executive Committee, a Technical Advisory Committee (TAC) consisting of a staff member employed by each JPA Member as designated by the respective JPA Executive Committee member, for purposes of advising the JPA Executive Committee on any technical issues of the JPA that the JPA Executive Committee may need advice on; 226
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(e) Retain an individual licensed to practice law in the State of California who shall serve as General Legal Counsel for the JPA and who shall assist the JPA with any legal assistance as may be requested by the JPA Executive Committee or President/Chief Executive Officer or their authorized designees; and
(f) Create any committees, sub-committees, and advisory committees, as deemed necessary by a majority vote of the JPA Executive Committee, to advance and/or achieve the purposes set forth in this Agreement.
(g) Pursuant to Section 6509 of the Government Code, the powers set forth in this Agreementshall be subject to the restrictions upon the manner of exercising such similar powers as are imposed on the City of Rancho Mirage in the exercise ofsimilar powers.

A contribution from each ofthe JPA Members is a funding mechanism equal to:
.0015 x Gross Room Rental Revenue for Lodging Establishments excluding Convention Hotels, and
.0035 x Gross Room Rental Revenue for Convention Hotels 227
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(c) The Gross Room Rental Revenue described herein shall not include any transient occupancy tax rebate incentives provided by the JPA Members.

Section 13. Withdrawal
Any Party may withdraw as a JPA Member and the obligations under this Agreement subject to the following conditions:
(a) The withdrawing JPA Member’s legislative body submits a duly adopted resolution to the JPA Executive Committee providing Notice of Withdrawal. (b) The effective date of withdrawal shall always be the last day of the VGPS’s Fiscal Year.
(c) All JPA Member Contributions must be paid in full by the withdrawing JPA Member through the end of the current VGPS Fiscal Year of the year when the withdrawing JPA Member provides its Notice of Withdrawal as well as the following VGPS Fiscal Year. (d) After giving notice of withdrawal, a withdrawing JPA Member shall not have voting privileges on the JPA Executive Committee except for operating budget items through the effective date of withdrawal.
(e) A withdrawing JPA Member may again become a party to this Agreement on condition that it pays to the treasury of the VGPS an amount equal to all JPA Member Contributions which the withdrawing JPA Member would have been required to pay if it had not withdrawn from participation.
(f) Partners within the territorial boundaries of the VGPS may remain active Partners as long as their respective government entity is a JPA Member and during the period of their JPA Member’s withdrawal from the Joint Powers Agreement. (g) In the event of withdrawal by a JPA Member, the JPA shall continue to be entitled to the full amount of the TBID unless and until the TBID expires without renewal or is disestablished pursuant to the Property and Business Improvement Area Law of 1994, Streets & Highways Code §36600 et seq. The withdrawing JPA Member shall continue to be responsible for collecting the TBID on a monthly basis (including any delinquencies, penalties and interest) from each assessed business and forwarding the same to the JPA.

Section 14. Expulsion/Withdrawal
A JPA Member may be expelled or suspended by a two-thirds (2/3) vote of the VGPS Executive Committee for an event of breach of this Agreement or the Bylaws, as amended from time to time, as determined by the remaining members of the JPA Executive Committee. The procedures for hearing and notice of expulsion and suspension shall be set forth in the bylaws of the JPA Executive Committee.

Section 15. Separate Entity
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Except for termination as provided in Section 6 of this Agreement, pursuant to section 6507 of the Government Code, this JPA shall at all times be an independent public entity separate from the parties to this Agreement, and the debts, liabilities and obligations of the JPA shall be its sole responsibility and shall not become the debts, liabilities, or obligations of any one JPA Member except that any JPA Member may separately contract for, or assume responsibility for specific debts, liabilities, or obligations of the JPA.

Section 16. Powers of the JPA
Pursuant to the Joint Exercise of Powers Act, as set forth in section 6500 et seq. of the California Government Code, this JPA shall have the authority to exercise any power common to the contracting parties, including without limitation any of the following:
(a) The power to make, enter into and perform all necessary contracts; (b) The power to engage necessary employees, to define their qualifications and duties and to provide a schedule of compensation for performance of their duties; (d) cThe power to retain agents, independent contractors and consultants, without limitation the power to engage legal counsel and other professional services; (d) The power to acquire, construct, manage, maintain or operate any building, works or improvements;
(e)
(f)(e) The power to acquire by purchase, grant, gift, lease or other lawful means any real property or any personal property that may be necessary or proper to carry out the purposes and intent of the JPA;
(g)(f) The power to hold any real property or any personal property that may be necessary or proper to carry out the purposes and intent of the JPA; (h)(g) The power to sell, lease or otherwise dispose of any real or personal property including exchanging equivalent properties if it is deemed to be in the best interests of the JPA; (i)(h) The power to donate any surplus real or personal property to any public agency or nonprofit organization;
(j)(i) The power to incur debts, liabilities or obligations, including without limitation the power to borrow money, give security therefore, and purchase on contract; (k)(j) The power to raise revenue for any public purpose consistent with the JPA’s purposes, as set forth in this Agreement, through any legal and appropriate means other than levying a tax or assessment beyond the scope of those assessments which may be established and levied pursuant to the Parking and Business Improvement Area Law of 1989, Streets & Highways Code §36500 et seq., and the Property and Business Improvement District Law of 1994, Streets & Highways Code §36600 et seq; (l)(k) The power to form, renew, and modify improvement districts including all 229
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Lodging Establishments, as defined in Section 1, pursuant to the Parking and Business Improvement Area Law of 1989, Streets & Highways Code §36500 et seq., and the Property and Business Improvement District Law of 1994, Streets & Highways Code §36600 et seq., as well as any other applicable provisions of California law authorizing the formation of assessment, benefit, or financing districts, which authorizes joint powers agencies to establish, modify and renew parking and business improvement areas and property and business improvement districts for the purpose of tourism promotion, destination marketing, economic development, and the financing, development, operation, and maintenance of public and private improvements, facilities, and infrastructure, including sports, entertainment, cultural, and related uses.. Approval of this Agreement by the JPA Members constitutes consent to:
(i) the formation of the Greater Palm Springs Convention & Visitors Bureau Tourism Marketing District adopted pursuant to Ordinance No. 2013-001, including all proceedings and actions previously taken by the VGPS in connection with formation of the said district (“2013 TMD”); and
(ii) the formation of the Greater Palm Springs Tourism Business Improvement District pursuant to Resolution No. 2016-004 and to levy an assessment of three percent (3%) on Convention Hotels;
(iii) t h e renewal of the Greater Palm Springs Tourism Business Improvement District pursuant to Ordinance No. 2020-005 (“2021 TBID”) and to levy an assessment of three percent (3%) on Convention Hotels and one percent (1%) on vacation rentals; (l) The power to form these districts, as discussed in the prior section, Section 16(kl), and incorporated herein by this reference, shall extend to the ability to establish such districts on a regional basis or within defined subareas of the JPA’s territorial boundaries (“Regional Districts”) that include only those JPA Members in those Regional Districts. Those Regional Districts may, or may not, include some or all JPA Members depending on the makeup and reach of the Regional District. For any Regional District that does not include all JPA Members within its boundary, the formation, rate, and management district plan shall be subject to approval by the legislative bodies of only the JPA Members in those Regional Districts and may be approved by a majority vote of those JPA Members’ legislative bodies, within those Regional Districts, consistent with applicable law. Incidental to this power to form these Regional Districts will be the power to plan, finance, develop, construct, acquire, operate, and maintain tourism-related infrastructure and facilities, including but not limited to sports complexes, entertainment venues, and other visitor-serving improvements, either directly or in partnership with public or private entities;
(m) The power to adopt rules, regulations, resolutions and ordinances that may be necessary or proper to carry out the purposes and intent of the JPA; (n) The power to enforce rules, regulations, resolutions and ordinances for the administration, maintenance and operation of the JPA;
(o) The power to enter into joint powers agreements pursuant to the Joint Exercise of Powers Act, as set forth in section 6500 et seq. of the Government Code; 230
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(p) The power to provide insurance pursuant to section 989 of the Government Code et seq.;
(q) The power to sue and be sued in the name of the JPA; (r) The power to conduct certain activities of the JPA in any state or territory of the United States of America or in any foreign country, related to growing and diversifying the economy through promoting and marketing all aspects of the hospitality, convention and tourism industry in the Coachella Valley for the purpose of attracting visitors, groups, meetings, conventions and new businesses from national and international markets, as permitted pursuant to Government Code section 37110;
(s) The power to travel domestically and internationally that is necessary or proper to carrying out the purposes and intent of the JPA;
(t) The power to provide staff and resource support, financial assistance and subsidies to other public agencies, non-profit organizations and the private sector for purposes consistent with the purpose and intent of the JPA;
(u) The power to lobby on behalf of tourism and economic development; (v) The power to form a non-profit corporation or other affiliated non-profit entities for the purpose of promoting and enhancing all aspects of the tourism and economic development industry; and
(w) The power to take any and all actions necessary for, or incidental to, the powers expressed or implied by this Agreement and all applicable laws.

Section 17. Power to Invest
Pursuant to Government Code section 6509.5, the JPA shall have the power to invest any money in its treasury pursuant to the provisions set forth in Government Code section 6505.5 that is not required for the immediate necessities of the JPA, as the JPA may determine from time to time is advisable, in the same manner and upon the same conditions as local agencies pursuant to Government Code section 53601.

Section 18. Bonding
Pursuant to Government Code section 6505.1, individuals occupying the following positions shall file an official bond in an amount deemed sufficient by the JPA Executive Committee:
(a) President/Chief Executive Officer;
(b) Director of Finance; and
(c) Treasurer.
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Section 19. Treasurer and Auditor - Designations
Pursuant to Government Code section 6505.6, the JPA Executive Committee shall designate by resolution an officer or employee of the JPA to fill the functions of Treasurer and Auditor of the JPA, and the JPA Executive Committee may appoint one qualified person to serve as both Treasurer and Auditor or two qualified persons to serve as each separately.

Section 21. Independent Audit
Pursuant to section 6505.6 of the Government Code, the Treasurer shall cause an independent audit to be made by a certified public accountant or public accountant, in compliance with section 6505 of the Government Code.

Section 22. Auditor’s Duties
The Auditor shall perform the following duties:
(a) Review and recommend to the JPA Executive Committee accounting procedures and policies governing the JPA;
(b) Review and approve all demands listed on the Warrant Registers prior to submittal to the JPA Executive Committee;
(c) Review payroll registers at least monthly;
(d) Review all financial reports being submitted to the JPA Executive Committee and make the JPA Executive Committee aware of any discrepancies or potential problems in 232
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the reports;
(e) Review investments made by the President or Treasurer; (f) Review the audit report prepared by a Certified Public Accounting firm prior to finalization of the report and submittal to the JPA Executive Committee; and (g) Assist staff in the selection of the Certified Public Accounting firm.

Section 25. Severability
If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions, if any, of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement. 233
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Section 26. Waiver
All waivers must be in writing to be effective or binding upon the waiving Party, and no waiver shall be implied from any omission by a Party to take any action.

Section 29. Applicable Law
This Agreement shall be construed and enforced in accordance with the laws of the State of California.

Section 31. Notices
Any notice or communication required hereunder between the JPA and the JPA Members shall be in writing and may be given either personally or by registered mail, returnreceipt requested. Notice, whether given by registered mail or personal delivery, shall be deemed to have been given and received on the actual receipt by any of the addresses designated below as the party to whom notices are to be sent. Any party hereto may at any time, upon written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below:
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City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Attention: City Manager
City of Coachella
53990 Enterprise Way
Coachella, CA 92236
Attention: City Manager
City of Desert Hot Springs
11999 Palm Drive
Desert Hot Springs, CA 92240
Attention: City Manager
City of Indian Wells
44950 Eldorado Drive
Indian Wells, CA 92210
Attention: City Manager
City of Indio
100 Civic Center Mall
Indio, CA 92201
Attention: City Manager
City of La Quinta
78495 Calle Tampico
La Quinta, CA 92253
Attention: City Manager
City of Palm Desert
73510 Fred Waring Drive
Palm Desert, CA 92260
Attention: City Manager
City of Palm Springs
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
Attention: City Manager
City of Rancho Mirage
69825 Highway 111
Rancho Mirage, CA 92270
Attention: City Manager
County of Riverside
County Administration Center
4080 Lemon Street
Riverside, California 92501
Attention: County Clerk
Section 32. Counterparts
This Agreement may be executed in duplicate counterpart originals, each of which is deemed to be an original, and all of which when taken together shall constitute one and the same instrument.

CITY OF CATHEDRAL CITY
_________________________________
Mark CarnevaleRaymond Gregory, Mayor
Dated: ___________________________
_________________________________
Charlie McClendonAndrew Firestine, City
Manager
ATTEST:
_________________________________
Tracey R. HermosilloChristina Burton, City
Clerk
APPROVED AS TO FORM:
________________________________
Eric S. Vail, City Attorney

CITY OF COACHELLA
_________________________________
Steven HernandezDr. Frank Figueroa, Mayor
Dated: ___________________________
_________________________________
Gabriel MartinGustavo Romo, City Manager
ATTEST:
_________________________________
Angela M. Zepeda, City Clerk
APPROVED AS TO FORM:
________________________________
Carlos CamposRyan Guiboa, City Attorney

CITY OF DESERT HOT SPRINGS
_________________________________
Scott Matas, Mayor
Dated: ___________________________
_________________________________
Frank LuckinoDoria Wilms, City Manager
ATTEST:
_________________________________
Jerryl Soriano, CMC, City Clerk
APPROVED AS TO FORM:
________________________________
Jennifer Mizrahi, City Attorney

CITY OF INDIAN WELLS
_________________________________
Greg SandersDr. Toper Taylor, Mayor
Dated: ___________________________
_________________________________
Christopher Freeland, City Manager
ATTEST:
_________________________________
Angelica Avila, City Clerk
APPROVED AS TO FORM:
________________________________
Todd Leishman, City Attorney
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CITY OF INDIO
_________________________________
Guadalupe Ramos AmithElaine Holmes,
Mayor
Dated: ___________________________
_________________________________
Bryan MontgomeryJonathan Nicks, City
Manager
ATTEST:
_________________________________
Cynthia Hernandez, City Clerk
APPROVED AS TO FORM:
________________________________
Steven P. Graham, City Attorney

CITY OF PALM DESERT
_________________________________
Karina QuintanillaEvan Trubee, Mayor
Dated: ___________________________
_________________________________
Todd HilemanChris Escobedo, City Manager
ATTEST:
_________________________________
Anthony Mejia, City Clerk
APPROVED AS TO FORM:
________________________________
Isra Shah, City Attorney

CITY OF PALM SPRINGS
_________________________________
Jeffrey BernsteinNaomi Soto, Mayor
Dated: ___________________________
_________________________________
Scott Stiles, City Manager
ATTEST:
_________________________________
Brenda Pree, City Clerk
APPROVED AS TO FORM:
________________________________
Jeffrey Ballinger, City Attorney
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CITY OF RANCHO MIRAGE
_________________________________
Steve DownsLynn Mallotto, Mayor
Dated: ___________________________
_________________________________
Isaiah Hagerman, City Manager
ATTEST:
_________________________________
Kristie Ramos, City Clerk
APPROVED AS TO FORM:
________________________________
Steven B, QuintanillaColin Kirkpatrick, City
Attorney

COUNTY OF RIVERSIDE
____________________________________
Chuck WashingtonKaren Spiegel, Chairman
____________________________________
Jeff Van Wagenen, County Executive
ManagerOfficer
ATTEST:
____________________________________
Kimberly A. Rector, Clerk of the Board
APPROVED AS TO FORM:
____________________________________
Minh Tran, County Counsel
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Formatted: Not Highlight
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18 VISIT GREATER PALM SPRINGS
Joint Powers Agreement - Third Amended and Restated Agreement Formatted: Right: 0.01"

EXHIBIT A

TERRITORIAL BOUNDARIES
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1 VISIT GREATER PALM SPRINGS

TABLE OF CONTENTS
RECITALS........................................................................................................................... 1 AGREEMENT..................................................................................................................... 2 Section 1 Definitions ....................................................................................... 2 Section 2 Incorporation of Recitals ................................................................. 3 Section 3 Purpose ............................................................................................ 3 Section 4 Name................................................................................................ 3 Section 5 Second Amended and Restated Agreement Superseded ................ 4 Section 6 Termination...................................................................................... 4 Section 7 JPA Members.................................................................................. 4 Section 8 Additional Members........................................................................ 4 Section 9 Governing Body............................................................................... 5 Section 10 JPA Executive Committee – Powers and Duties............................. 5 Section 11 Territorial Boundaries...................................................................... 6 Section 12 Contributions ................................................................................... 6 Section 13 Withdrawal ...................................................................................... 7 Section 14 Expulsion......................................................................................... 8 Section 15 Separate Entity................................................................................. 8 Section 16 Powers of the JPA............................................................................ 8 Section 17 Power to Invest .............................................................................. 11 Section 18 Bonding ......................................................................................... 11 Section 19 Treasurer and Auditor – Designations........................................... 11 Section 20 Treasurer – Duties and Responsibilities......................................... 11 250
ii
Section 21 Independent Audit ......................................................................... 12 Section 22 Auditor’s Duties ............................................................................ 12 Section 23 Attorney’s Fees.............................................................................. 12 Section 24 Voting............................................................................................ 12 Section 25 Severability .................................................................................... 12 Section 26 Waiver ........................................................................................... 13 Section 27 Amendments.................................................................................. 13 Section 28 Ambiguities or Uncertainties......................................................... 13 Section 29 Applicable Law.............................................................................. 13 Section 30 Venue............................................................................................. 13 Section 31 Notices........................................................................................... 13 Section 32 Counterparts................................................................................... 14 Section 33 Privileges and Immunities ............................................................. 14

EXHIBIT A
Territorial Boundaries.......................................................................................................... 18 251

NOW, THEREFORE, in consideration of the terms and conditions hereinafter set forth, and intending to be legally bound hereby, the JPA Members hereby covenant and agree as follows:
252

Section 2. Incorporation of Recitals
The foregoing recitals are incorporated into this Agreement by this reference as though fully set forth herein.

The JPA will maintain a policy of funding its pension liability at a minimum of 85% and will promptly notify JPA Members at any time this threshold is not met.

Section 26. Waiver
All waivers must be in writing to be effective or binding upon the waiving Party, and no waiver shall be implied from any omission by a Party to take any action.

Section 29. Applicable Law
This Agreement shall be construed and enforced in accordance with the laws of the State of California.

VISIT GREATER PALM SPRINGS
Joint Powers Agreement - Third Amended and Restated Agreement 18 EXHIBIT A

TERRITORIAL BOUNDARIES
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STAFF REPORT
TO: JPA Member Cities and Riverside County
FROM: Scott White, President & CEO
DATE: August 3, 2026
SUBJECT: APPROVAL AND ADOPTION OF THE THIRD AMENDED AND RESTATED JOINT POWERS

AGREEMENT THAT AMENDS THE PURPOSE AND POWERS OF THE JOINT POWERS AUTHORITY RECOMMENDATION:

The JPA Executive Committee of VGPS recommends approval of amendments to the purpose and powers of its existing JPA Agreement, in the form of the Third Amended and Restated Joint Powers Agreement. These amendments would allow VGPS’ members the option to develop a Tourism Improvement District or Infrastructure District, in collaboration with VGPS, to further the goal of construction of a sports complex in the Coachella Valley.

BACKGROUND:

A. Visit Greater Palm Springs and the Operative JPA Agreement.

Visit Greater Palm Springs (“VGPS”) is a Joint Powers Authority operating under the Joint Exercise of Powers Act (California Government Code §§6500 et seq.) The JPA Executive Committee serves as the governing body of VGPS. The JPA Executive Committee adopted the Joint Powers Agreement (“Amended and Restated Agreement”) on January 20, 2016 (“JPA Agreement”). The current operative JPA Agreement for VGPS is the Second Amended and Restated Joint Powers Agreement (the “Second Amended JPA Agreement”), that was approved on June 14, 2024. The members of VGPS are as follows: Desert Hot Springs, Palm Springs, Cathedral City, Rancho Mirage, Palm Desert, Indian Wells, La Quinta, Indio and Coachella (“Member Cities”), and the County of Riverside.

B. Vision of a Sport Complex in the Coachella Valley.

VGPS previously commissioned a series of feasibility studies for a potential regional amateur sports complex in the Coachella Valley. The results of the studies made it clear that a thoughtfully designed indoor facility could fill a critical gap in both our tourism economy and our community recreation infrastructure. Beyond the numbers, this project offers a major step forward in regional quality of life, keeping local athletes closer to home, creating new opportunities for youth development, and supporting wellness, recreation, and community pride. A regional amateur sports complex can generate meaningful economic impact, help retain local talent, and support a more resilient and diversified, year-round economy. By taking the lead, the region can establish itself as a premier destination for sports and tourism, while fueling development across retail, hospitality, and entertainment.

C. Approval of Amendments to the JPA in the Form of Third Amended and Restated Joint Powers Agreement.
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In order to further the vision of such a sports complex in the Coachella Valley, it was determined that the the existing Second Amended JPA Agreement had to be amended to broaden its purpose and powers to enable such. Therefore, Resolution No. JPA 2026-003, was proposed and approved at the June 26, 2026, joint JPA Executive Committee and VGPS Board of Directors meeting. That Resolution included amendments to the Second Amended JPA Agreement, in the form of the Third Amended and Restated Joint Powers Agreement. Those amendments would allow member cities the option to develop a Tourism Improvement District or Infrastructure District, in collaboration with VGPS, to develop such a sports complex.

In particular, the proposed amendments include revisions to the “Purpose” of the Second Amended and Restated JPA (see, Section 3, p. 3), and the “Powers” of that agreement (see, Section 16, p. 8), as indicated below:

Section 3. Purpose
The purpose of VGPS is to benefit all JPA Members and their constituents by jointly:
(a) Marketing, attracting, encouraging, promoting, and doing such other things as might be necessary to enhance, to the greatest extent possible all aspects of the hospitality, convention, and tourism industry in the Coachella Valley and to maximize visitations from national and international markets;
(b) Doing such other things to drive, advance and support initiatives to strengthen and diversify all aspects of the regional economy of the Coachella Valley; and (c)
Developing, fostering and facilitating Coachella Valley destination-enhancing improvements and infrastructure including, but not limited to, sports complexes, entertainment venues, and meeting facilities, either directly and/or forging dynamic public-private partnerships.

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(e) The power to acquire by purchase, grant, gift, lease or other lawful means any real property or any personal property that may be necessary or proper to carry out the purposes and intent of the JPA;
(f) The power to hold any real property or any personal property that may be necessary or proper to carry out the purposes and intent of the JPA;
(g) The power to sell, lease or otherwise dispose of any real or personal property including exchanging equivalent properties if it is deemed to be in the best interests of the JPA; (h) The power to donate any surplus real or personal property to any public agency or nonprofit organization;
(i) The power to incur debts, liabilities or obligations, including without limitation the power to borrow money, give security therefore, and purchase on contract; (j) The power to raise revenue for any public purpose consistent with the JPA’s purposes, as set forth in this Agreement, through any legal and appropriate means including assessments which may be established and levied pursuant to the Parking and Business Improvement Area Law of 1989, Streets & Highways Code §36500 et seq., the Property and Business Improvement District Law of 1994, Streets & Highways Code §36600 et seq., and any other applicable provisions of California law authorizing the formation of assessment, benefit, or financing districts as referenced in Section 16(l);
(k) The power to form, renew, and modify improvement districts including all Lodging Establishments, as defined in Section 1, pursuant to the Parking and Business Improvement Area Law of 1989, Streets & Highways Code §36500 et seq., and the Property and Business Improvement District Law of 1994, Streets & Highways Code §36600 et seq., as well as any other applicable provisions of California law authorizing the formation of assessment, benefit, or financing districts, which authorizes joint powers agencies to establish, modify and renew parking and business improvement areas and property and business improvement districts for the purpose of tourism promotion, destination marketing, economic development, and the financing, development, operation, and maintenance of public and private improvements, facilities, and infrastructure, including sports, entertainment, meeting, cultural, and related uses. Approval of this Agreement by the JPA Members constitutes consent to:
(i) the formation of the Greater Palm Springs Convention & Visitors Bureau Tourism Marketing District adopted pursuant to Ordinance No. 2013-001, including all proceedings and actions previously taken by the VGPS in connection with formation of the said district (“2013 TMD”); and
(ii) the formation of the Greater Palm Springs Tourism Business Improvement District pursuant to Resolution No. 2016-004 and to levy an assessment of three percent (3%) on Convention Hotels;
(iii) the renewal of the Greater Palm Springs Tourism Business Improvement District pursuant to Ordinance No. 2020-005 (“2021 TBID”) and to levy an assessment of three percent (3%) on Convention Hotels and one percent (1%) on vacation rentals; 273

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(l) The power to form these districts, as discussed in the prior section, Section 16(l), and incorporated herein by this reference, shall extend to the ability to establish such districts on a regional basis or within defined subareas of the JPA’s territorial boundaries (“Regional Districts”) that include only those JPA Members in those Regional Districts. Those Regional Districts may, or may not, include all JPA Members depending on the makeup and reach of the Regional District. For any Regional District that does not include all JPA Members within its boundary, the formation, rate, and management district plan shall be subject to approval by the legislative bodies of only the JPA Members in those Regional Districts and may be approved by a majority vote of those JPA Members’ legislative bodies, within those Regional Districts, consistent with applicable law. Incidental to this power to form these Regional Districts will be the power to plan, finance, develop, construct, acquire, operate, and maintain tourism-related infrastructure and facilities, including but not limited to sports complexes, entertainment venues, meeting facilities, and other visitor-serving improvements, either directly or in partnership with public or private entities; (m) The power to adopt rules, regulations, resolutions and ordinances that may be necessary or proper to carry out the purposes and intent of the JPA; (n) The power to enforce rules, regulations, resolutions and ordinances for the administration, maintenance and operation of the JPA;
(o) The power to enter into joint powers agreements pursuant to the Joint Exercise of Powers Act, as set forth in section 6500 et seq. of the Government Code; (p) The power to provide insurance pursuant to section 989 of the Government Code et seq.; (q) The power to sue and be sued in the name of the JPA; (r) The power to conduct certain activities of the JPA in any state or territory of the United States of America or in any foreign country, related to growing and diversifying the economy through promoting and marketing all aspects of the hospitality, convention and tourism industry in the Coachella Valley for the purpose of attracting visitors, groups, meetings, conventions and new businesses from national and international markets, as permitted pursuant to Government Code section 37110;
(s) The power to travel domestically and internationally that is necessary or proper to carrying out the purposes and intent of the JPA;
(t) The power to provide staff and resource support, financial assistance and subsidies to other public agencies, non-profit organizations and the private sector for purposes consistent with the purpose and intent of the JPA;
(u) The power to lobby on behalf of tourism and economic development; (v) The power to form a non-profit corporation or other affiliated non-profit entities for the purpose of promoting and enhancing all aspects of the tourism and economic development industry; and
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(w) The power to take any and all actions necessary for, or incidental to, the powers expressed or implied by this Agreement and all applicable laws.

CONCLUSION
Based on the above, then, the JPA Executive Committee recommends that the JPA Member Cities, and Riverside County, adopt and approve the Third Amended and Restated Joint Powers Agreement, as outlined above.
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City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Ryland Penta, Community Relations Supervisor Department: City Manager’s Office
Subject: Proposed Palm Desert 2027 Social Media Commemorations Recommendation
Approve the proposed social media commemorations schedule for the 2027 calendar year, as reviewed by the Mayor and Mayor Pro Tem.

Background
The City uses its official social media channels to share information about programs, services, meetings, events, and other matters of community interest. The City also periodically recognizes selected holidays, observances, awareness campaigns, and commemorative dates.

The annual commemorations schedule provides a consistent framework for planning this content. It may include federal and State holidays; cultural and religious observances; national and international awareness days, weeks, and months; environmental and community-focused observances; and other widely recognized commemorative dates.

Analysis
The proposed 2027 social media commemorations schedule was developed using the approved 2026 schedule as a starting point. The 2027 schedule retains all observances included in the approved 2026 schedule and adds two new recognitions:
 Recognition of Palm Desert’s mid-century modern architecture in conjunction with Modernism Week, February 11–21, 2027.
 Recognition of “Paul Voth Day” to acknowledge Mr. Voth’s efforts to remove litter from the community and encourage similar acts of community stewardship, in conjunction with National CleanUp Day on Saturday, September 18, 2027.

Staff plans to hold the first Paul Voth Day on Saturday, October 17, 2026, from 9:00 a.m. to 11:00 a.m. at the Bump & Grind trailhead. Staff intends to coordinate with local environmental organizations and school groups to encourage participation at this cleanup event.

Following the event, staff plans to return to the City Council with an update and seek direction regarding future Paul Voth Day activities and the potential development of a broader process for recognizing residents whose service benefits the community.

The 2027 social media commemorations schedule is intended as a planning and coordination tool rather than a comprehensive list of social media content. Approval will provide staff with 277

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direction for commemorative content while preserving flexibility to address timely City and community communications throughout the year.

Mayor and Mayor Pro Tem Review
Consistent with the process used for the 2026 schedule, the proposed 2027 schedule was provided to the Mayor and Mayor Pro Tem for review prior to presentation to the City Council.

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

Financial Impact
There is no fiscal impact associated with this action.

Attachments

1. Proposed 2027 Social Media Commemorations Schedule
278

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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☐ Yes
☒ No
If yes, identify the project site:

Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

Councilmembers should review campaign contributions received within the prior 12 months from parties or participants to the proceeding and must not accept contributions over $500 from those parties for 12 months following the final decision. (Gov. Code § 84308). 279
280
City of Palm Desert
Proposed 2027 Social Media Commemorations Calendar
January
• New Year’s Day — Friday, January 1, 2027
• Law Enforcement Appreciation Day — Saturday, January 9, 2027 • Martin Luther King Jr. Day — Monday, January 18, 2027 • International Holocaust Remembrance Day — Wednesday, January 27, 2027 February
• Black History Month
• Groundhog Day — Tuesday, February 2, 2027
• Lunar New Year — Saturday, February 6, 2027
• Modernism Week – Friday, February 12-15
• Ramadan — Monday, February 8, 2027
March
• International Women’s Day — Monday, March 8, 2027
• Epilepsy Awareness Day — Friday, March 26, 2027
• St. Patrick’s Day — Wednesday, March 17, 2027
• First Day of Spring — Saturday, March 20, 2027
• Eid al-Fitr — Wednesday, March 10, 2027
• Farmworkers Day — Wednesday, March 31, 2027
April
• National Arab American Heritage Month
• Earthquake Preparedness Month
• Autism Acceptance Week — Monday, March 29 through Sunday, April 4, 2027 • Passover — Begins Wednesday, April 21, 2027
• Administrative Professionals Day — Wednesday, April 21, 2027 • Earth Day — Thursday, April 22, 2027
• Arbor Day — Friday, April 30, 2027
May
• National Bike Month
• Asian American and Pacific Islander Heritage Month
• Mental Health Awareness Month
• Yom HaShoah — Begins Monday, May 3, 2027
• Cinco de Mayo — Wednesday, May 5, 2027
• Mother’s Day — Sunday, May 9, 2027
• Armed Forces Day — Saturday, May 15, 2027
• Eid al-Adha — Begins Sunday, May 16, 2027
• National Tortoise Day — Sunday, May 23, 2027
• Memorial Day — Monday, May 31, 2027
281
June
• Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ+) Pride Month • National Trails Day — Saturday, June 5, 2027
• Flag Day — Monday, June 14, 2027
• Father’s Day — Sunday, June 20, 2027
• Juneteenth — Saturday, June 19, 2027
• First Day of Summer — Monday, June 21, 2027
• Pollinator Week — Monday, June 21-27, 2027
July
• Canada Day — Thursday, July 1, 2027
• Independence Day — Sunday, July 4, 2027
• National Disability Independence Day — Monday, July 26, 2027 • Outdoor Worker Appreciation Week — Date to confirm
September
• National Hispanic Heritage Month
• National Emergency Preparedness Month
• Hunger Action Month
• Labor Day — Monday, September 6, 2027
• Patriot Day — Saturday, September 11, 2027
• Mexican Independence Day — Thursday, September 16, 2027 • National CleanUp Day – Saturday, September 18, 2027
• First Day of Fall — Wednesday, September 22, 2027
• World Tourism Day — Monday, September 27, 2027
October
• Columbus Day / Indigenous Peoples Day — Monday, October 11, 2027 • Great California ShakeOut Day — Thursday, October 21, 2027 • Halloween — Sunday, October 31, 2027
November
• National Native American Heritage Month
• Greater Palm Springs Pride — Date to confirm
• Veterans Day — Thursday, November 11, 2027
• America Recycles Day — Monday, November 15, 2027
• Thanksgiving — Thursday, November 25, 2027
• Celebrate Palm Desert Day — Friday, November 26, 2027 December
282
• World AIDS Day — Wednesday, December 1, 2027
• Human Rights Day — Friday, December 10, 2027
• First Day of Winter — Tuesday, December 21, 2027
• Hanukkah — Begins Friday, December 24, 2027
• Christmas — Saturday, December 25, 2027
• Kwanzaa — Sunday, December 26, 2027
• New Year’s Eve — Friday, December 31, 2027
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City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Shelby Goodwin, Special Events Coordinator Department: Economic Development
Subject: Informational Report regarding Temporary Road Closures on El Paseo Associated with Fiscal Year 2026/27 Recurring Special Events Recommendation
Receive and file an informational report regarding temporary road closures on El Paseo associated with FY 2026/27 recurring special events.

Background
Each year, several recurring community special events on El Paseo require temporary road closures to safely accommodate participants and spectators.

The following events are anticipated to require temporary road closures during FY 2026-27:
 Desert Cancer Foundation’s Paint El Paseo Pink – Saturday, October 10, 2026  Palm Desert Area Chamber of Commerce Golf Cart Parade – Sunday, October 25, 2026
 Martha’s Village and Kitchen Thanksgiving 5K – Thursday, November 26, 2026 Discussion
City staff will coordinate with each event organizer and applicable public safety and traffic control personnel to implement appropriate traffic management measures. These measures will include hard closures at major intersections, traffic control equipment, and law enforcement personnel at designated locations along the event route. Advance notification of planned road closures will also be provided to El Paseo businesses and affected residents.

Legal Review
This report has been reviewed by the City Attorney’s Office. 285

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Financial Impact
The City Council approved community event sponsorship funding for Paint El Paseo Pink, the Golf Cart Parade, and the Thanksgiving 5K as part of the FY 2026-27 budget. There is no additional financial impact associated with this report.

Attachments
None.
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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☐ Yes
☒ No
If yes, identify the project site:

Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

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City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Shawn Muir, Community Services Manager
Department: Public Works
Subject: Parks and Recreation Committee Fiscal Year 2026-27 Work Plan Recommendation
Approve the Parks and Recreation Committee Fiscal Year 2026-27 Work Plan Background
This is the first annual work plan developed for the Parks and Recreation Committee (Committee). The Work Plan establishes the Committee’s priority areas for Fiscal Year (FY) 2026-27 and provides a framework to focus its efforts and develop recommendations for City Council consideration. It will guide the Committee’s discussions and recommendations related to parks and recreation programs, facilities, and projects.

On July 6, 2026, staff distributed an online survey to Committee members to identify priority areas for the FY 2026-27 Work Plan. The survey included six potential initiatives based on topics previously discussed by the Committee. Members were asked to identify their top three priorities from the following initiatives:

Initiative Description
Trail Connectivity
Enhancement
Assess connections between neighborhoods, civic facilities, recreational destinations, and existing trails.

Playground Assessment
and Improvements
Promote inclusive play features and provide input on park maintenance and equipment upgrade needs.

Shade and Resilience
Initiative
Identify opportunities to increase shade, cooling, and desertappropriate amenities and promote heat-mitigation strategies in parks and public spaces.

Skate Park Monitor the recent unsupervised pilot program, assess community feedback, and identify minor maintenance needs.

Sign Program Provide input on the repair, replacement, update, and standardization of signs at City parks and trails.

Community Engagement
and Event Planning
Collaborate with staff on the Monarch Pledge, pollinator initiatives, Arbor Day, and related educational opportunities with community partners.

The Committee serves in an advisory capacity to the City Council on matters relating to parks and recreation, including policy and long-range planning (Palm Desert Municipal Code 289

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2.58.40). On August 4, 2026, the Committee reviewed the survey results and considered the six proposed initiatives. Following discussion, the Committee identified the following three priority initiatives for inclusion in its FY 2026-27 Work Plan:

1. Trail Connectivity Enhancement

2. Playground Assessment and Improvements

3. Shade and Resilience Initiative
If approved by the City Council, the Work Plan will guide the Committee’s focus areas and recommendations during FY 2026-27. Approval of the Work Plan does not authorize any projects, expenditures, or additional funding. Any future projects or actions resulting from the Work Plan will be brought forward separately for City Council consideration, as necessary.

Appointed Body Recommendation
On August 4, 2026, the Committee voted unanimously to recommend approval of the FY 2026- 27 Work Plan, including the three priority initiatives identified above.

Financial Impact
There is no fiscal impact associated with approval of the FY 2026-27 Work Plan, and no funding is requested as part of this action. Any future expenditures associated with implementing individual initiatives would require separate consideration and approval through the appropriate budget or project approval process.

Attachments

1. Staff Report – Parks and Recreation Committee (August 4, 2026)

2. Presentation – Parks and Recreation Committee (August 4, 2026) 290

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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☐ Yes
☒ No
If yes, identify the project site:

Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

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City of Palm Desert Staff Report
Meeting Date: August 4, 2026
Prepared By: Marie de Vera, Management Analyst
Department: Public Works
Subject: Approve the Parks and Recreation Committee Annual Work Plan Recommendation
Approve the Parks and Recreation Committee Annual Work Plan and confirm the proposed Work Plan categories as presented.

Background
Annual work plans help ensure that committees focus on the City Council's priorities and use their time effectively. The Parks and Recreation Committee Work Plan outlines the committee's goals, priorities, and key projects, providing a roadmap for discussions, staff reports, and recommendations to the City Council. It helps keep meetings focused, addresses important community needs, tracks progress, identifies gaps, and guides future recommendations based on available funding and regional partnerships.

On Monday, July 6, 2026, staff distributed an online survey to Parks & Recreation Committee members based on frequently discussed topics to identify the Committee’s priority areas of focus. Members were asked to rank six service categories and identify their top three initiatives.

The survey also gathered input on the importance of each category, allowing staff to align service priorities with the Committee’s interests and recommendations. The six service categories and associated services were ranked by the Parks & Recreation Committee as follows:

Category Services
1 Trail Connectivity
Enhancement
Assess connections between neighborhoods, civic facilities, recreational destinations, and existing trails
2 Playground Assessment
and Improvements
Promote inclusive play features, provide input on parks to catch maintenance or equipment upgrades early
3 Shade and Resilience
Initiative
Identify opportunities to increase shade, cooling, and
desert-appropriate amenities; promote heat-mitigation
strategies in parks and public spaces (e.g. cool pavement, paint, or coatings at bus stops)
4 Skate Park Monitor recent unsupervised pilot shift, assess community feedback regarding the change, conduct inspections of the park for minor wear and tear
5 Sign Program Provide input on the repair, replacement, update, and standardization of signs at City parks and trails
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6 Community Engagement
and Event Planning
Collaborate with staff in preparation of Monarch Pledge, Pollinator Initiatives, and Arbor Day (e.g. educational opportunities connecting youth/school groups with local partner agencies)
Upon approval by the Parks & Recreation Committee, the proposed Work Plan identifying the top three initiatives will be forwarded to the City Council for consideration at its next regular meeting. If adopted by the City Council, the Work Plan will take effect and serve as the Committee’s roadmap for prioritizing parks and recreation projects, guiding discussions, and making recommendations throughout the year.

Financial Impact
No fiscal impact associated with the presentation.

Attachments

1. Presentation – PRC 2026-2027 Work Plan
294

PARKS & RECREATION COMMITTEE MEETING

BUSINESS ITEMS
August 4, 2026
295
Annual Work Plan

RECOMMENDED INITIATIVES
• Skate Park
• Playground Assessment and Improvements
• Trail Connectivity Enhancement
• Sign Program
• Community Engagement and Event Planning
• Shade and Resilience Initiative
296

TOP PRIORITIES
2026/2027 Parks & Rec Annual Work Plan
Priorities O'Donnell Langford Murphy Skogen Guyer Votes Skate Park X X 2
Playground Assessment and Improvements X X X 3
Trail Connectivity Enhancement X X X X 4
Sign Program X X 2
Community Engagement and Event Planning X 1
Shade and Resilience Initiative X X X 3
297

TRAIL CONNECTIVITY ENHANCEMENT
Assess connections between neighborhoods,
civic facilities, recreational destinations, and
existing trails

PLAYGROUND ASSESSMENT AND

IMPROVEMENTS

SHADE AND RESILIENCE INITIATIVE
Identify opportunities to increase shade,
cooling, and desert-appropriate amenities
Promote heat-mitigation strategies in parks
and public spaces

FOCUS/GOALS
298

PLEASE VOTE
• Trail Connectivity Enhancement
• Playground Assessment and
Improvements
• Shade and Resilience Initiative
299
300

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City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Clayton von Helf, Information Systems Manager Jenavieve Alvarez, Enterprise Systems Administrator
Department: Finance
Subject: Three-Year Microsoft 365 Renewal through Insight Public Sector, Inc.

Recommendation

1. Approve a three-year Microsoft 365 subscription renewal with Insight Public Sector, Inc., in an amount not to exceed $450,000, plus a 25 percent contingency of $112,500 for additional licenses and upgrades, for a total authorization not to exceed $562,500.

2. Authorize the City Manager to finalize and execute the agreement and any related purchase orders, annual renewal documents, amendments, change orders, and other documents necessary to effectuate this action, including the use of contingency funds and non-monetary modifications, provided the expenditure does not exceed $562,500.

Executive Summary
The City relies on Microsoft 365 for email, document preparation, collaboration, file storage, and other essential operations. Approval of the proposed three-year renewal will maintain uninterrupted access to these services.

The requested 25 percent contingency will allow the City to adjust license quantities, address potential changes in licensing costs, and upgrade the current Microsoft 365 licensing plan if further evaluation demonstrates that its communication and security capabilities would benefit City operations. Funding for the first year is included in the FY 2026-27 budget. Costs for the remaining years will be included in future annual Information Technology budgets.

Analysis
Microsoft 365 provides the applications and services used throughout the organization for email, calendaring, document preparation, meetings, collaboration, and information management. These services include Outlook, Microsoft Teams, Word, Excel, PowerPoint, OneDrive, and SharePoint. Renewing the City’s subscription will ensure continued access to these services for the next three years.

The requested subscription purchase authorization is through Insight Public Sector, Inc., an authorized Microsoft Licensing Solution Provider, utilizing the County of Riverside’s Microsoft Enterprise Cooperative Agreement (per MC Section 3.30.160(E)).

The requested contingency will accommodate changes in the number or type of licenses required during the agreement term, potential licensing cost adjustments, and a possible upgrade of the Microsoft 365 license plan. Staff is evaluating whether the licensing upgrade 301

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would provide beneficial integration with the City’s planned phone system upgrade and additional communication and security capabilities. The contingency would allow the City Manager to proceed with an upgrade following that evaluation without exceeding the total amount authorized by the City Council.

Approval of the proposed renewal and contingency will maintain continuity of the City’s Microsoft services while providing flexibility to respond to changing operational and technology needs during the three-year term.

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

Financial Impact
The three-year Microsoft 365 renewal is estimated at $450,000. The requested 25 percent contingency of $112,500 would result in a total authorization not to exceed $562,500 over the three-year term.

Below are renewal costs for the contract period under the current licensing structure:

FY 2026-27 FY 2027-28 FY 2028-29 Contract
Total
Microsoft 365: 150,000 150,000 150,000 450,000
Funding for the first year is included in the FY 2026-27 budget under Account No. 1104190- 4362001, therefore there is no impact to the general fund budget. Funding for the remaining years will be included in future annual Information Technology budgets, subject to City Council appropriation. Use of the contingency would occur only as necessary for additional licenses, licensing cost adjustments, or license upgrades.

Attachments
None.
302

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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☐ Yes
☒ No
If yes, identify the project site:

Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

2. SB 1439 / Gov. Code § 84308 Applicability (Campaign Contributions) Does this item involve a license, permit, other entitlement for use, or a contract or franchise agreement that is not competitively bid, a labor agreement, or a personal employment contract?
☒ Yes
☐ No
If yes, identify the party: Public Sector Insights, Inc.

Page 1 ends

Palm Desert Housing Authority Staff Report
Meeting Date: September 10, 2026
Prepared By: Alex Vasquez, Project Manager
Department: Capital Projects
Subject: Housing Authority - Approve Change Order No. 1 to Contract HA50390 with Van Engineering, Inc., for Taos Palms Apartments Site Improvement Project (Project No.

CHA00004)
Recommendation

1. Approve Change Order No. 1 to Contract HA50390 with Van Engineering, Inc., of Wildomar, California, in the amount of $29,662.53 and appropriate an additional $6,281.42 to cover the portion of the change order that exceeds the project’s contingency, for Taos Palms Site Improvement Project (Project No. CHA00004).

2. Authorize the Director of Finance to appropriate funds from Housing Authority Fund Balance Reserves to Housing Authority Replacement Expenditure Account No. 8714195-4331100, in the amount of $6,281.42.

Analysis
The Palm Desert Housing Authority (Authority) owns and manages the 16-unit Taos Palms Apartments, located at 44830 Las Palmas Avenue. Due to recurring flooding during rain events that has directly impacted residents, Taos Palms was identified as a high-priority rehabilitation site. The project included exterior improvements to the courtyards and parking areas, such as grading and asphalt-concrete paving, as well as drainage improvements within the development to address flooding.

On January 22, 2026, the City Council awarded a construction contract to Van Engineering, Inc., in the amount of $216,163, with a contingency of $21,616. Construction began on May 1, 2026, and was successfully completed on July 24, 2026.

During construction, several bid item quantities exceeded the original estimates, including grading, irrigation repairs, and ADA detectable warning surfaces, resulting in additional project costs. Change Order No. 1 totals $39,662.53, less $10,000 in Contractor Credit for a total Change Order amount of $29,662.53.

The project has $21,616 available contingency funds. After applying the contingency funds to Change Order No. 1, a funding shortfall of $8,046.53 remains. An additional $1,765.11 has been appropriated from other sources, reducing the remaining funding shortfall to $6,281.42.

Therefore, staff is requesting an additional appropriation of $6,281.42 to fully fund Change Order No. 1 and close out the project.

Legal Review
This report has been reviewed by the City Attorney’s Office. 305

Page 2 ends

Appointed Body Recommendation
The Housing Commission has reviewed and approved this recommendation at its regular meeting on August 12, 2026.

Financial Impact
Funding for the total project cost is included in the approved Fiscal Year 2025-26 Financial Plan and Five-Year Capital Improvement Program (CIP) under Housing Authority Replacement Expenditure Account No. 8714195-4331100.

Of the $245,825.53 in total construction cost, $239,544.11 is eligible for reimbursement through Community Development Block Grant (CDBG) funds.

To fund the remaining balance of Change Order No. 1, staff is requesting an appropriation of $6,281.42 from Housing Authority Fund Balance Reserves. This amount is not eligible for CDBG reimbursement; however, because funding for the total project was included in the approved Fiscal Year 2025-26 Financial Plan, there is no additional fiscal impact to the Housing Authority or General Fund.

The table below summarizes the current project budget and associated costs.

Taos Palms Parking Lot Improvements:

Authorized Budgets
Date
Authorized Fund 871
Original Budget FY 25/26 7/1/2025 100,100.00
Additional Appropriation FY 25/26 (CDBG) 5/1/2026 239,544.11 Total Authorized Budget to Date 339,644.11
Less: Authorized Expenditures
Date
Authorized Fund 871
TKE Engineering (C47460) 4/25/2024 100,100.00
Van Engineering, Inc. (HA50390) 5/1/2026 206,163.00
Contingency 5/1/2026 21,616.00
Total Authorized Expenditures to Date 327,879.00
*Van Engineering, Inc., Change Order #1 9/10/2026 39,662.53 Less Contingency 21,616.00
Current Appropriation Request 6,281.42
Remaining Project Budget Available 0.00
Attachments

1. Change Order No. 1 and Contractor’s Change Order Request

2. Housing Commission Staff report – Approve Change Order No. 1 to Contract HA50390

3. Housing Authority Staff report - Award of Contract HA50390

4. Vicinity Map
306

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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☒ Yes
☐ No
If yes, identify the project site: 44830 Las Palmas Avenue Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

CITY OF PALM DESERT

CONTRACT CHANGE ORDER
Justification:

YES NO
Description of Changes Decrease
In Contract Price
Increase
In Contract Price
Totals:

Net Change in Contract Price:

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

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

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

Contract Purpose:

Contractor Name:

Contract No / P.O. #:

Change Order No.:

Contingency:

Account No.:

Project No.:

Vendor No.:

YES NO
Project Manager:

This Change Order is hereby entered into on:

HA50390 25262470 1
✔
8714195-4331100 CHA00004 V0016738 Taos Palms Site Improvements Project Van Engineering Inc. Alex Vasquez New dirt grading $ 39,662.53 Irrigation repairs Installation of additional ADA detectable warning surfaces Permit and fees Contract deduction ($ 10,000.00) ($ 10,000.00) $ 39,662.53 $ 29,662.53 $ 29,662.53 $ 29,662.53 During construction, additional work was identified as necessary to address field conditions and complete the project in accordance with project requirements. Several bid item quantities exceeded the original estimates, including grading, irrigation repairs, and ADA-compliant detectable warning surfaces, resulting in additional project costs.

Change Order No. 1 totals $39,662.53. Available project contingency funds are insufficient to cover the full cost, resulting in a funding shortfall of $8,046.53. Of this amount, $1,765.11 is currently appropriated. Therefore, staff is requesting an additional appropriation of $6,281.42 from Account No. 8714195-4331100 to fully fund Change Order No.

1. $ 216,163.00 $ 21,616.00 $ 237,779.00 $ 21,616.00 $ 216,163.00 -$ 8,046.53 -$ 8,046.53 The amount of the contract will be increased by the sum of: Twenty-nine thousand six hundred sixty-two 53 $ 29,662.53 $ 245,825.53 Rev 04-26
309
Continued from Front
Contract No. _________ Contract Change Order No. ___
Contract Time Extension: __________________________
Contractor accepts the terms and conditions stated above as full and final settlement of any and all claims arising out of or related to the subject of this Change Order and acknowledges that the compensation (time and cost) set forth herein comprises the total compensation due for the work or change defined in the Change Order, including all impact on any unchanged work. Execution of this Change Order by the Contractor constitutes a binding accord and satisfaction that fully satisfies, waives, and releases the City from all claims, demands, costs, and liabilities, in contract, law or equity, arising out of or related to the subject of the Change Order, whether known or unknown, including but not limited to direct and indirect costs and/or damages for delay, disruption, acceleration, loss of productivity, and stacking of trades, as well as any and all consequential damages. The adjustments to the Contract Price and Contract Time in this Change Order constitute the entire compensation and/or adjustment thereto due to Contractor, including but not limited to all direct, indirect, consequential, profit, labor, equipment, tools, idle time, incidentals, and overhead (field and home office) costs, due to Contractor arising out of or related to the change in the work covered by this Change Order. The Contractor hereby releases and agrees to waive all rights, without exception or reservation of any kind whatsoever, to file any further claim or request for equitable adjustment of any type, for any reasonably foreseeable cause that shall arise out of, or as a result of, this Change Order and/or its impact on the remainder of the work under the Contract. This Change Order will become a supplement to the Contract and all provisions will apply hereto.

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

3. CERTIFIED FUNDS

AVAILABLE
______________________
Deputy Finance Director 4. APPROVED BY: ______________________ City Manager
NOTE: No payments will be made prior
to City Manager or Council approval
QC: _____
HA50390 1
Rev 04-26
310

VAN ENGINEERING INC
Phone #949-558-6186 24046 Clinton Keith Rd Ste 101-179
Wildomar CA 92595 License #1102034
Class A

CHANGE ORDER
Palm Desert Housing Authority COO 1
Taos Palms Apartments Site Improvements Date 7-10-2026
Project No. CHA00004
Contract No. HA50390
Item # Description Qty Unit Unit price Total price
$0.00
1 Additional Landscaping added per plans provided by the City 1 LS $30,017.93 $30,017.93 2 PERMIT FEES $0.00
OTH-26-0033 1 LS $97.00 $97.00
OTH-26-0033 1 LS $177.00 $177.00
SITE-26-0003 1 LS $115.70 $115.70
SITE-26-0003 1 LS $254.90 $254.90
3 Additional Domes 2 EA $4,500.00 $9,000.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Exclusions: Bonds,Dewatering, SWPP, Traffic Control, Water meter, CMS, Landscape Total Cost Amount $39,662.53 All work to be as specified and performed in accordance with plans and specification submitted by owner and completed in a workmanlike manner. Any alteration or deviation from plans and specifications involving extra cost will be execuited only upon written change orders and will become an extra charge over and above the esitmate. All agreements contingent upon strikes,accidents or delays beyond our control.

Date: Date:

Signature: Signature:
311
312

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Palm Desert Housing Commission Staff Report
Meeting Date: August 12, 2026
Prepared By: Alex Vasquez, Project Manager
Department: Capital Projects
Subject: Consider Change Order No. 1 to Contract HA50390 with Van Engineering Inc., for Taos Palms Apartments Site Improvement Project (Project No. CHA00014) Recommendation
Recommend that the Palm Desert Housing Authority take the following actions:

1. Approve Change Order No. 1 to Contract HA50390 with Van Engineering Inc., of Wildomar, California, in the amount of $6,281.42 for Taos Palms Site Improvement Project (Project No.

CHA00014).

Executive Summary
Staff recommends approval of Change Order No. 1 to Contract HA50390 with Van Engineering Inc., of Wildomar, California, in the amount of $6,281.42 for the Taos Palms Apartments Site Improvement Project (Project No. CHA00004). During construction, additional work was identified that is necessary to address field conditions and complete the project in accordance with project requirements.

The requested action also authorizes the Director of Finance to appropriate $6,281.42 from the Housing Authority Fund Balance Reserves to Housing Authority Replacement Expenditure Account No. 8714195-4331100 to fund the change order.

Background
The Palm Desert Housing Authority (Authority) owns and manages the Taos Palms Apartments (Taos), located at 44830 Las Palmas Avenue, which includes sixteen (16) affordable housing units.

Taos has experienced ongoing flooding during rain events, which has directly impacted residents; therefore, the property has been identified as a high-priority site for rehabilitation. To address the ongoing flooding, exterior improvements are needed throughout the courtyards and parking areas, including asphalt concrete, landscaping, and drainage.

On January 22, 2026, the City Council awarded a contract to Van Engineering Inc., in the amount of $216,163, with a 10% contingency of $21,616. The project commenced on May 1, 2026, and was successfully completed on July 24, 2026.
313

Page 2 ends

Analysis
During the project's construction, several bid items experienced overruns. Notably, the construction of new dirt grading, irrigation repair, and the actual quantities for ADA detectable warning surfaces exceeded the initial estimates, resulting in higher-than-expected cost.

Financial Impact
The Taos Palms Apartments Site Improvement Project was approved as part of the Fiscal Year 2025-26 Capital Improvement Project (CIP) List, identified as a Community Development Block Grant (CDBG)-funded project and is eligible for reimbursement in the amount of $239,544.11 through CDBG funds. To accommodate the additional work and associated costs, staff is requesting an appropriation of $6,281.42 to fund Change Order No. 1. This action will have no impact on the General Fund.

The table below outlines the current project budget and associated costs.

Description Budget Expenditures
Approved Budget
Housing Authority
Replacement Exp
$216,163.00
10% Contract Contingency $21,616.30
CDBG Allocation $1,764.81
Total Project Budget $239,544.11
Approved Expenditures
Van Engineering Contract ($216,163.00)
Pending Request
Van Engineering CO1 ($39,662.53)
Pending Contract Total ($255,825.53)
Total Project Budget Less
Pending Contract Total
($16,281.42)
Vendor Credit $10,000
Requested Appropriation ($6,281.42)*
* Requested appropriation reflects vendor credit reduction.

Attachments

1. Change Order No. 1 to Contract HA50390

2. Vicinity Map

3. Staff Report for Award of Contract CHA00004
314
315
316
317
318
319
320
321
322

Page 1 ends

City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Cesar Lopez, Senior Engineer
Department: Development Services
Subject: Release the Cash Maintenance Bond for West Coast Self Storage located on the Northwest Corner of Dinah Shore and Dick Kelly Drive
Recommendation
Release the cash Maintenance Bond for West Coast Self Storage in the amount of $4,869.65 for public improvements.

Background
On December 6, 2022, the Planning Commission approved Resolution No. 2825, granting a Precise Plan (PP22-0005) for a 52,528-square-foot self-storage facility on a 1.87-acre property at the northwest corner of Dinah Shore Drive and Dick Kelly Drive, developed by West Coast Self-Storage Group. Per the resolution, bonds for public improvements were required prior to the issuance of the grading permit (PG23-0025). The following bonds were submitted at the time of grading approval:
 Public Improvements:
o $48,696.50 for Faithful Performance
o $24,348.25 for Labor & Materials
 Grading:
o $11,415.25
On January 9, 2025, the Public Works Department confirmed the completion of all public improvements. The Engineer of Record also provided a Letter of Certification verifying compliance. Project requirements are documented in the approved grading plan (PG23-0025) and the Engineer’s Estimate. A Record Drawing of the improvements is on file with the Development Services Department.

On February 13, 2025, the Public Improvement Bonds and the Grading Bond were released.

At that time, the City accepted a cash Maintenance Bond equal to 10 percent of the public improvement bond amount, pursuant to Palm Desert Municipal Code Section 26.28.140, in the amount of $4,869.65.

On July 8, 2026, Public Works completed the final inspection and verified all public improvements were in accordance with City standards. Based on the completed inspection and verification, the maintenance period requirements have been satisfied, and there are no outstanding public improvement deficiencies requiring the continued retention of the cash Maintenance Bond.

Accordingly, staff recommends releasing the $4,869.65 cash Maintenance Bond. 323

Page 2 ends

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

Financial Impact
There is no fiscal impact with this action.

Attachments

1. Maintenance Bond (Cash Receipt)

2. Vicinity Map

3. Bond Release Form
324

Page 3 ends

1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☒ Yes
☐ No
If yes, identify the project site: Northwest Corner of Dinah Shore and Dick Kelly Drive Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

DESCRIPTION ACCOUNT QTY PAID
PermitTRAK $4,869.65
PG23-0025 Address: 73761 SPYDER CIR APN: 694240009 $4,869.65 CASH IN LIEU - FEE GL-6100000-2280100 0 $4,869.65
TOTAL FEES PAID BY RECEIPT: R58149 $4,869.65
Printed: Tuesday, February 4, 2025 3:57 PM
Date Paid: Tuesday, February 04, 2025
Paid By: WEST COAST SELF STORAGE GROUP
Pay Method: ACH 991891
1 of 1
Cashier: AM
Cash Register Receipt
City of Palm Desert
Receipt Number
R58149
327
328
Spyder
Circle
Dinah Shore Drive
ck Kelly Drive
Warhol Ln
Perugino Ter Perugino Ter
Spyder Circle
Dinah Shore Drive
Pasini Ter
Dick Kelly Drive
Spyder Circle Durer Pl
Dinah
Sh
ore
Drive
asini Ter
Raphael Dr
Union Pacifi c RR
10 Union Pacifi c RR
Dinah Shore
Drive
Raphael
Dr
Dinah Shore Drive
Vicinity Map
0 0.02 0.04 0.08 mi
0 0.03 0.07 0.13 km
1:2,257
N

1.85Acres
329
330

CITY OF PALM DESERT
Land Development and Public Works Department

BOND RELEASE AUTHORIZATION FORM
Project Name:

Project Address:

Tract/Parcel Map No.:

Developer:

Bond Type:

Bond Number:

Bond Amount:

All required improvements associated with the above-referenced project have been completed in accordance with approved plans and applicable City standards. All departments have provided clearance for bond release. It is recommended that the bond be released.

Public Works Director Director of Development Services City Engineer Signature: ____________________ Signature: ____________________ Signature: ____________________ Name: ____________________ Name: ____________________ Name: ____________________ Date: ____________________ Date: ____________________ Date: ____________________ Casey Arndt
08/24/2026
Timothy R Jonasson, PE
8/31/26
Rosie Lua
09/2/2026
West Coast Self Storage 73761 Spyder Circle PM 24255 West Coast Self-Storage Group Maintenance Bond Cash Deposit $4,869.65 331
332

Page 1 ends

City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Melanie Slater, Management Analyst
Department: Public Works
Subject: Approve Amendments to Maintenance Service Agreements for Landscape Maintenance Areas 2, 16, and 17
Recommendation

1. Approve Amendment No. 2 to Contract No. C49170 with Mariposa Landscapes, Inc., of Irwindale, CA, to increase services and the annual contract amount to $308,490.24, subject to consumer price index (CPI) increases, and subject to the not to exceed Extra Work amount of $105,000.

2. Approve Amendment No. 2 to Contract No. C49270 with Vintage Associates, Inc., of Bermuda Dunes, CA, to increase services and the annual contract amount to $525,660, subject to CPI increases, and subject to the not to exceed Extra Work amount of $100,920.

3. Approve Amendment No. 2 to Contract No. C43140 with Vintage Associates, Inc., of Bermuda Dunes, CA, to increase services and the annual contract amount to $362,460, subject to CPI increases, and subject to the not to exceed Extra Work amount of $70,000.

4. Authorize the City Attorney to make necessary non-monetary changes to the amendments.

5. Authorize the City Manager to execute these amendments, the optional contract extensions, including CPI increase requests, and execute any other documents necessary to effectuate the actions taken herewith.

Executive Summary
On May 22, 2025, the City Council awarded three-year Maintenance Services Agreements to Mariposa Landscapes, Inc. (Mariposa) for Landscape Maintenance Area (LMA 2) and to Vintage Associates, Inc. (Vintage) for LMA 16. Both agreements expire June 30, 2028.

On May 26, 2022, a three-year Maintenance Services Agreement was awarded to Vintage for Landscape Maintenance Area 17 (LMA 17), which expires on June 30, 2027. Each agreement includes two optional one-year extensions.

The contractors have requested an annual CPI adjustment beginning July 1, 2026, in accordance with the terms of their agreements. The dollar amount for extra work remains unchanged from the previously approved amounts. Staff requests City Council approval of Amendments to the Landscape Maintenance Area service agreements to incorporate the requested CPI adjustments, retroactive to July 1, 2026, and to include maintenance to additional areas. Staff also requests amending the agreements to authorize the City Manager to approve future annual CPI adjustments, eliminating the need for future City Council action on routine CPI increases.
333

Page 2 ends

Background
The City of Palm Desert (City) contracts with private landscape maintenance contractors to provide routine services for its Landscape Maintenance Areas (LMAs), including landscaped medians, parkways, rights-of-way, parks, and other public areas. Many LMA agreements provide for annual compensation adjustments based on the Consumer Price Index for All Urban Consumers (CPI-U) for the Riverside-San Bernardino-Ontario, CA Region (All Items), as published by the U.S. Bureau of Labor Statistics. The CPI-U for the 12-month period ending March 2026 is 3.1%. Additional areas are added for regular maintenance services following improvements.

Contract No. C49170 – Mariposa Landscapes, Inc. (LMA 2):

Landscape Maintenance Area No. 2 (LMA 2) encompasses the northern medians of Palm Desert and plays a key role in enhancing the city's visual appeal. By keeping these public spaces well maintained, LMA 2 contributes to a welcoming and attractive environment for both residents and visitors.

On May 22, 2025, Contract No. C49170 for LMA 2 was awarded to Mariposa Landscapes, Inc. for a three-year term with two one-year extensions at an annual amount of $288,588. This agreement expires on June 30, 2028, and authorizes City Manager to approve annual CPI increases. Therefore, on June 25, 2026, the City Manager approved a CPI increase, bringing the annual amount to $297,534.24.

In March 2026, staff were notified that with the construction of Fire Station 102, additional landscape maintenance is required at Gerald Ford Drive west of Paseo Del Corazon. In July, the 90-day establishment period was completed, and the contractor agreed to commence monthly maintenance. The additional services bring the annual amount to $308,490.24, requiring City Council approval.

A summary of the adjustments to the LMA 2 contract is provided in the table below:

Item Monthly Cost Annual Cost
Original Contract $24,049.00 $288,588.00
Amendment No. 1 (CPI 3.1%) $745.52 $8,946.24
Yr 2 - Revised Contract Amount $24,794.52 $297,534.24
*Amendment No. 2 (New Area) $913 $10,956
Proposed Revised Contract Amount $25,707.52 $308,490.24 Contract No. C49270 – Vintage Associates, Inc. (LMA 16):

Landscape Maintenance Area No. 16 (LMA 16) includes the monthly landscape maintenance of Cahuilla Hills Park, Homme Adams Park, Freedom Park and Community Gardens, Joe Mann Park, Hovley Soccer Park, Palma Village Park, Ironwood Park, North Palm Desert University Parks, Washington Charter Park, Haystack Drainage Channel, Smoke Tree Natural Area, and the Robert A. Spiegel, University, and Freedom Community Gardens.

On May 22, 2025, Contract No. C49270 for LMA 16 was awarded to Vintage Associates, Inc. for a three-year term with two one-year extensions at the annual amount of $504,600. This agreement expires on June 30, 2028, and authorizes the City Manager to approve annual CPI 334

Page 3 ends

increases. Therefore, on June 25, 2026, the City Manager approved a CPI increase, bringing the annual amount to $519,720.

In July 2026, staff were notified that, with improvements at Cahuilla Hills Park, additional landscape maintenance would be required. This increase in services brings the annual amount to $525,660.

A summary of the adjustments to the LMA 16 contract is provided in the table below:

Item Monthly Cost Annual Cost
Original Contract $42,050 $504,600
Amendment No. 1 (CPI 3%) $1,260 $15,120
Yr 2 - Revised Contract Amount $43,310 $519,720
*Amendment No. 2 (New Area) $495 $5,940
Proposed Revised Contract Amount $43,805 $525,660
Contract No. C43140 – Vintage Associates, Inc. (LMA 17):

Landscape Maintenance Area 17 (LMA 17) is one of three highly visited destinations in the City of Palm Desert and consists of Civic Center Park, Tri-Cities Sports Fields, and Magnesia Falls Park. Each park hosts a wide range of special events, sports, and activities that enhance the quality of life for residents and visitors. Therefore, frequent operations and maintenance are required to preserve each park.

Contract No. C43140 in the annual amount of $340,800 for LMA 17 was awarded to Vintage Associates, Inc. on May 26, 2022, for a five-year term with three one-year extensions at the annual amount of $340,800. On September 25, 2025, the City Council approved a CPI increase, bringing the annual amount to $351,000.

Vintage submitted a request for the 3% CPI increase; however, with the removal of landscape maintenance services at the Parkview Building, the agreement remained under the approved amount. In July 2026, staff were notified that, due to playground improvements at Civic Center Park, additional landscape maintenance is required. This increase in services, along with the CPI increase, adds $21,660 to the original contract amount, bringing the annual contract amount to $362,460.

A summary of the adjustments to the LMA 17 contract is provided in the table below:

Item Monthly Cost Annual Cost
Original Contract $28,400 $340,800
Amendment No. 1 – CPI (3%) $850 $10,200
Yr 4 Contract Amount $29,250 $351,000
*Reduction - Parkview Bldg. -$2,060 -$24,720
Yr 5 Contract Amount $27,190 $326,280
*Amend 2 - CPI (3%) $815 $9,780
*Amend 2 – CC Playground $2,200 $26,400
Proposed Revised Contract Amount $30,205 $362,460
335

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Analysis
Staff reviewed the CPI adjustment requests and determined that the proposed increases are consistent with the adjustment provisions of the respective agreements. Because the agreements do not establish a standardized submission schedule, the requests were submitted at different times using the most recently published Riverside County All-Items Consumer Price Index, resulting in varying adjustment percentages.

Staff also reviewed the proposed additional landscape maintenance services at Cahuilla Hills Park and Civic Center Park and determined that they are necessary to maintain the improved areas. The associated costs are reflected in the proposed amendments.

The agreements also include previously approved allowances for extra work performed outside the base maintenance scope. These amounts remain unchanged and are used only when additional work is authorized by the City. The following table summarizes how each allowance was established and the types of work it may cover:

Contract
Extra
Work
Amount
How Amount Was Determined General Nature of Extra
Work
LMA 2 $105,000 Based on anticipated needs,
$75,000 for landscape-related
work and $30,000 for maintenance
of rights-of-way and other public
spaces.

Irrigation and lighting repairs;
emergency tree work; plant
replacement; pest control;
accident or vandalism repairs;
sign and site-furnishing
repairs; water-conservation
improvements; weed
abatement; litter removal; and
sidewalk cleaning.

LMA 16 $100,920 Established as an annual
allowance for unforeseen
landscape and street-maintenance
needs that are outside the base
scope. The allowance provides
sufficient contract capacity without
guaranteeing that the full amount
will be spent.

Irrigation and lighting repairs;
tree and shrub replacement;
pest control; accident or
vandalism repairs; sign
replacement; and minor
enhancement projects.

LMA 17 $70,000 Established as an allowance for
unforeseen repairs and
replacement work outside the base
maintenance scope. The amount
is used only when additional work
is authorized by the City.

Hardscape, irrigation, and
lighting repairs; emergency
tree work; tree and shrub
replacement; pest control;
accident or vandalism repairs;
and other unforeseen work.

To improve consistency and administrative efficiency, staff recommend amending the agreements to authorize the City Manager to approve future annual CPI adjustments in accordance with the contract provisions. This process will provide a consistent basis for future adjustments while eliminating the need for routine City Council action. 336

Page 5 ends

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

Financial Impact
Sufficient funding is included in the approved FY 2026-27 Financial Plan in the various Public Works Department operations budgets to cover the requested adjustments; therefore, there is no additional financial impact to the General Fund with this action.

The table below outlines the budgets and adjusted contract amount for each area:

Accounts / Description FY 2026/27 Budget Adjusted Contract Amount
Balance
Available
1104610-4332001 $300,000
1104610-4337100 $65,000
1104611-4332001 $550,000
1104614-4337001 $350,000
C49170 LMA 2 - Mariposa $308,491
C49270 LMA 16 - Vintage $525,660
C43140 LMA 17 - Vintage $362,460
Total $1,265,000 $1,196,611 $68,389
Future year extensions and CPI requests will be contingent upon approval of the associated Annual Budget.

Attachments

1. C49170 Am 2 Mariposa Landscapes - LMA 2

2. C49270 Am 2 Vintage Associates - LMA 16

3. C43140 Am 2 Vintage Associates - LMA 17

4. LMA 2 Proposal

5. LMA 16 Proposal

6. LMA 17 Proposal

7. LMA 2 Map

8. LMA 16 Map

9. LMA 17 Map
337

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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☒ Yes
☐ No
If yes, identify the project site: Landscape Maintenance Areas 2, 16, and 17, as shown in Attachments 7 through 9.

This action solely concerns landscape maintenance of existing public facilities. Accordingly, any financial effect on nearby real property is not material under FPPC Regulation 18702.2(d)(1).

Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

2. SB 1439 / Gov. Code § 84308 Applicability (Campaign Contributions) Does this item involve a license, permit, other entitlement for use, or a contract or franchise agreement that is not competitively bid, a labor agreement, or a personal employment contract?
☒ Yes
☐ No
If yes, identify the applicant(s), appellant(s), party, or participant(s): Mariposa Landscapes, Inc.; Vintage Associates, Inc.

BY AND BETWEEN THE CITY OF PALM DESERT
AND MARIPOSA LANDSCAPES, INC.

1. Parties and Date.

This Amendment No. 2 (“Amendment No. 2”) to the Maintenance Services Agreement, Contract No. C49170, is made and entered into on September 10, 2026, 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 Mariposa Landscapes, Inc., a Corporation, with its principal place of business at 6236 Santos Diaz St., Irwindale, CA 91702 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”

1.1 City Council Approval. On September 10, 2026, City Council approved the award of this Amendment No. 2 to the Contractor named above.

2. Recitals.

2.1 Agreement. The City and Contractor entered into a Maintenance Services Agreeement (“Agreement”) on April 24, 2025, for the purpose of retaining the services of Mariposa Landscapes, Inc for Landscape Maintenance Area No. 2, Project No. MLS00009 (“Project”).

2.2 Background. The Parties previously entered into Amendment No. 1 on June 25, 2026 for the purpose of adjustment of compensation for CPI Increase.

2.3 Amendment Authority. This Amendment is authorized pursuant to Section

3.5.9 of the Agreement.

2.4 The purpose of this Amendment No. 2 is to amend Scope for additional landscape maintenance services at Gerald Ford Drive.

3. Terms. The Agreement is hereby amended as follows:

Section 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” and Exhibit “A-1” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached 339
Contract No. C49170
2 Rev 04-26
72500.00001\44340560.1
hereto and incorporated herein by reference, and all
applicable local, state, and federal laws, rules, and
regulations.

Section 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-2” attached hereto and incorporated herein by reference. The total annual compensation shall not
exceed THREE-HUNDRED AND EIGHT THOUSAND,
FOUR HUNDRED NINETY DOLLARS AND 24/100
($308,490.24) for monthly landscape services without
written approval of the City Council or City Manager, as applicable.

The City may request additional work at the same rates
and manner as set forth in this Agreement on an as
needed basis as specified in Section 3.3.5. Contractor
shall not perform Extra Work, presume Extra Work will
be guaranteed, nor be compensated for Extra Work
without written authorization from the City. Work
performed as Extra Work shall not exceed the amount
of ONE HUNDRED FIVE THOUSAND DOLLARS AND
00/100 ($105,000.00). Contractor shall not be reimbursed for any expenses unless authorized by the City Council or City Manager, as applicable.

Exhibit “A-1” Exhibit “A-1” is hereby added to the contract record, attached hereto and incorporated herein by reference.

Exhibit “C-2” Exhibit “C” and Exhibit “C-1” are hereby removed in their entirety and replaced with Exhibit “C-2” attached hereto and incorporated herein by reference.

3.1 Continuing Effect of Agreement. Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.

3.2 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2.

3.3 Severability. If any portion of this Amendment No. 2 is declared invalid, illegal, 340
Contract No. C49170
3 Rev 04-26
72500.00001\44340560.1
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
341
Contract No. C49170
4 Rev 04-26
72500.00001\44340560.1
SIGNATURE PAGE FOR AMENDMENT NO. 2

TO MAINTENANCE SERVICES AGREEMENT BETWEEN

THE CITY OF PALM DESERT
AND MARIPOSA LANDSCAPES, INC.

CITY OF PALM DESERT

Chris Escobedo
City Manager
Attest:

Anthony J. Mejia
City Clerk
Approved to form by:
____________________________
Isra Shah
City Attorney
MARIPOSA LANDSCAPES, INC., A

CORPORATION

Terry Noriega
President
____________________________
Antonio Valenzuela
Secretary
Office Use:

Quality Check Insurance Review
City Clerk Contracts Initial Final
342
Contract No. C49170
Exhibit “A-1”
Rev 04-26
72500.00001\44340560.1
Exhibit “A-1”

SCOPE OF SERVICES
343
Contract No. C49170
Exhibit “C-2”
Rev 04-26
72500.00001\44340560.1
EXHIBIT “C-2”

COMPENSATION
Site Name Monthly Cost Yearly Cost
LMA 2 $25,707.52 $308,490.24
344
Contract No. C49270
1 Rev 04-26
72500.00001\44340560.1
AMENDMENT NO. 2 TO THE MAINTENANCE SERVICES AGREEMENT

BY AND BETWEEN THE CITY OF PALM DESERT
AND VINTAGE ASSOCIATES, INC.

1. Parties and Date.

This Amendment No. 2 (“Amendment No. 2”) to the Maintenance Services Agreement, Contract No. C49270, is made and entered into on September 10, 2026, 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 Associates, Inc., a Corporation, with its principal place of business at 78755 Darby Road, Bermuda Dunes, CA 92203 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”

1.1 City Council Approval. On September 10, 2026, City Council approved the award of this Amendment No. 2 to the Contractor named above.

2. Recitals.

2.1 Agreement. The City and Contractor. entered into a Maintenance Services Agreeement (“Agreement”) on May 22, 2025, for the purpose of retaining the services of Vintage Associates, Inc for Landscape Maintenance Area No. 16 (“Project”).

2.2 Background. The parties previously entered into a previous Amendment No. 1 on June 25, 2026, for the purpose of adjusting compensation for CPI increase.

2.3 Amendment Authority. This Amendment is authorized pursuant to Section

3.5.9 of the Agreement.

2.4 The purpose of this Amendment No. 2 is to CPI increase compensation and amend scope to include landscape services at Cahuilla Hills Park.

3. Terms. The Agreement is hereby amended as follows:

Section 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” and Exhibit “A-1” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached 345
Contract No. C49270
2 Rev 04-26
72500.00001\44340560.1
hereto and incorporated herein by reference, and all
applicable local, state, and federal laws, rules, and
regulations.

Section 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-2” attached hereto and incorporated herein by reference. The total annual compensation shall not
exceed FIVE HUNDRED TWENTY-FIVE THOUSAND
SIX-HUNDRED SIXTY DOLLARS AND 00/100
($525,660.00) for monthly landscape services without
written approval of the City Council or City Manager, as applicable.

The City may request additional work at the same rates
and manner as set forth in this Agreement on an as
needed basis as specified in Section 3.3.5. Contractor
shall not perform Extra Work, presume Extra Work will
be guaranteed, nor be compensated for Extra Work
without written authorization from the City. Work
performed as Extra Work shall not exceed the amount
of ONE HUNDRED THOUSAND NINE HUNDRED
TWENTY DOLLARS AND 00/100 ($100,920.00).

Contractor shall not be reimbursed for any expenses
unless authorized by the City Council or City Manager, as applicable.

Exhibit “A-1” Exhibit “A-1” is hereby added to the contract record, attached hereto and incorporated herein by reference.

Exhibit “C-2” Exhibit “C” and Exhibit “C-1” are hereby removed in their entirety and replaced with Exhibit “C-2” attached hereto and incorporated herein by reference.

3.3 Severability. If any portion of this Amendment No. 2 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
347
Contract No. C49270
4 Rev 04-26
72500.00001\44340560.1
SIGNATURE PAGE FOR AMENDMENT NO. 2

TO MAINTENANCE SERVICES AGREEMENT BETWEEN

THE CITY OF PALM DESERT
AND VINTAGE ASSOCIATES, INC.

CITY OF PALM DESERT

Chris Escobedo
City Manager
Attest:

Anthony J. Mejia
City Clerk
Approved to form by:
____________________________
Isra Shah
City Attorney
VINTAGE ASSOCIATES, INC., A

CORPORATION

David Smith
President
____________________________
David Smith
Secretary
Office Use:

Quality Check Insurance Review
City Clerk Contracts Initial Final
348
Contract No. C49270
Exhibit “A-1”
Rev 04-26
72500.00001\44340560.1
EXHIBIT “A-1”

SCOPE OF SERVICES
349
Contract No. C49270
Exhibit “C-2”
Rev 04-26
72500.00001\44340560.1
EXHIBIT “C-2”

COMPENSATION
Site Name Monthly Cost Yearly Cost
LMA 16 $43,805 $525,660
350
Contract No. C43140
1 Rev 04-26
72500.00001\44340560.1
AMENDMENT NO. 2 TO THE MAINTENANCE SERVICES AGREEMENT

BY AND BETWEEN THE CITY OF PALM DESERT
AND VINTAGE ASSOCIATES, INC.

1. Parties and Date.

This Amendment No. 2 (“Amendment No. 2”) to the Maintenance Services Agreement, Contract No. C43140, is made and entered into on September 10, 2026, 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 Associates, Inc., a Corporation, with its principal place of business at 78755 Darby Road, Bermuda Dunes, CA 92203 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”

1.1 City Council Approval. On September 10, 2026, City Council approved the award of this Amendment No. 2 to the Contractor named above.

2. Recitals.

2.1 Agreement. The City and Vintage Associates, Inc. entered into a Maintenance Services Agreeement (“Agreement”) on May 26, 2022, for the purpose of retaining the services of Vintage Associates, Inc for Landscape Maintenance Area No. 17 (“Project”).

2.2 Background. The parties previously entered into a previous Amendment No 1 on September 25, 2025, for adjustment of compensation for CPI Increase.

2.3 Amendment Authority. This Amendment is authorized pursuant to Section

3.5.9 of the Agreement.

2.4 The purpose of this Amendment No. 2 is to adjust compensation for CPI increase and amend Scope for additional landscape maintenance area at Civic Center Park Playground.

3. Terms. The Agreement is hereby amended as follows:

Section 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” and Exhibit “A-1” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed 351
Contract No. C43140
2 Rev 04-26
72500.00001\44340560.1
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.

Section 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-1” attached hereto and incorporated herein by reference. The total annual compensation shall not
exceed Three Hundred Sixty-Two Thousand FourHundred Sixty Dollars and 00/100 ($362,460.00) for monthly landscape services without written approval of
the City Council or City Manager, as applicable.

The City may request additional work at the same rates
and manner as set forth in this Agreement on an as
needed basis as specified in Section 3.3.5. Contractor
shall not perform Extra Work, presume Extra Work will be guaranteed, nor be compensated for Extra Work without
written authorization from the City. Work performed as
Extra Work shall not exceed the amount of Seventy
Thousand Dollars and 00/100 ($70,000.00). Contractor
shall not be reimbursed for any expenses unless
authorized by the City Council or City Manager, as
applicable.

Exhibit “A-1” Exhibit “A-1” is hereby added to the contract record, attached hereto and incorporated herein by reference.

Exhibit “C-1” Exhibit “C” is hereby removed in its entirety and replaced with Exhibit “C-1” attached hereto and incorporated herein by reference.

3.3 Severability. If any portion of this Amendment No. 2 is declared invalid, illegal, 352
Contract No. C43140
3 Rev 04-26
72500.00001\44340560.1
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
353
Contract No. C43140
4 Rev 04-26
72500.00001\44340560.1
SIGNATURE PAGE FOR AMENDMENT NO. 2

TO MAINTENANCE SERVICES AGREEMENT BETWEEN

THE CITY OF PALM DESERT
AND VINTAGE ASSOCIATES, INC.

CITY OF PALM DESERT

Chris Escobedo
City Manager
Attest:

Anthony J. Mejia
City Clerk
Approved to form by:
____________________________
Isra Shah
City Attorney
VINTAGE ASSOCIATES, INC., A

CORPORATION

Terry Noriega
President
____________________________
Antonio Valenzuela
Secretary
Office Use:

Quality Check Insurance Review
City Clerk Contracts Initial Final
354
Contract No. C43140
EXHIBIT “A-1”
Rev 04-26
72500.00001\44340560.1
EXHIBIT “A-1”

SCOPE OF SERVICES
355
Contract No. C43140
EXHIBIT “C-1”
Rev 04-26
72500.00001\44340560.1
EXHIBIT “C-1”

COMPENSATION
Site Name Monthly Cost Yearly Cost
LMA 17 $30,205 $362,460
356
1-800-794-9458 www.mariposa-ca.com CSLB #592268
We Create and Maintain Beautiful Landscapes Where People Live, Work, and Play

PROPOSAL
Monday, March 30, 2026
Brad Chuck – Public Works Senior Inspector
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Phone 760-423-3392 Email [email protected]
Re: Landscape Maintenance at Gerald Ford Additional Medians Description This proposal provides for all labor, material, and equipment to perform the following landscape maintenance services at Gerald Ford Dr. west of Paseo Del Corazon. Services will be performed according to current LMA - 2 contract #C49170 specifications. This project has been discussed with Joe Rojas.

Price Total monthly price for above-described work................................ $913.00 Nine Hundred Thirteen And 00/100
Terms: Per current agreement C49170.

Exclusions: Construction prevailing wages, any unforeseen underground obstacles, and anything not mentioned.

Time Project start date is currently 5 days after acceptance.

Limits Time limit for the acceptance of this proposal is 30 calendar days from the above date.

Respectfully submitted,
Arnulfo Aguilera – Maintenance Account Manager
[email protected]
626-327-7510 cell (626) 960-8477 fax
357
358
--0

VINTAGI

LANDSCAPE
CITY OF PALM DESERT LMA-16
CAHUILLA�-PARK SOW INCREASE
• ;'I; I.� ' :
r'1i .,:!,"· ,'I f ' ., /Ix I •
'i, ·} I
.. •. •.

RE: LMA-16 Cahuilla Park SOW Increase
Dear Francisco & City Representatives,
August 11, 2026
Recent renovations have increased the level of service, labor, and ongoing maintenance needed to properly maintain Cahuilla Park. Based on these changes, Vintage Landscape respectfully requests an adjustment to the monthly maintenance pricing for this area.

The current monthly maintenance amount for Cahuilla Park is $1,680.00. Due to the increased scope associated with the renovations, we are requesting an additional $495.00 per month, bringing the revised total monthly maintenance amount to $2,175.00 . • Cahuilla Park
o Current: $1,680.00
o Add-On Due To Renovations: $495.00
■ Total: $2,175.00
Our pricing is intended to reflect the level of service and standard of excellence City management expects for this newly renovated area. With the improvements at Cahuilla Park, there is now significantly more to maintain, including DG, mulch, hardscape, and other high-use amenities. The proposed pricing is primarily labor-based and is designed to ensure these areas are maintained at a level that protects the quality of the improvements installed and the frequency of services set by City management.

Upon approval, this adjustment would be applied beginning with July 2026 billing.

Sincerely,
l;L�
Kyle Gritters I CEO
Vintage Landscape• Vintage Nursery• Vintage Outdoors
78-755 Darby Road, Bermuda Dunes, CA 92203 • (760) 772-3673 • vintagelandscape.com 359
360
RE: LMA-17 Civic Center Playground SOW Increase August 11, 2026 Dear Francisco & City Representatives,
Recent renovations have increased the level of service, labor, and ongoing maintenance needed to properly maintain the playground at Civic Park. Based on these changes, Vintage Landscape respectfully requests an adjustment to the monthly maintenance pricing for this area.

The current monthly maintenance amount for the Playground at Civic Center is $2,100.00. Due to the increased scope associated with the renovations, we are requesting an additional $2,200.00 per month, bringing the revised total monthly maintenance amount to $4,300.00. • Playground @ Civic Center
o Current: $2,100.00
o Add-On Due to Renovations: $2,200.00
■ Total: $4,300.00
Our pricing is intended to reflect the level of service and standard of excellence City management expects for these newly renovated areas. With the improvements at Civic Center Playground, there is now significantly more to maintain, including playground equipment, DG, mulch, hardscape, and other high-use amenities. The proposed pricing is primarily labor-based and is designed to ensure these areas are maintained at a level that protects the quality of the improvements installed and the frequency of services set by City management.

Upon approval, this adjustment would be applied beginning with July 2026 billing.

Sincerely,
l;L-�
Kyle Gritters I CEO
Vintage Landscape• Vintage Nursery• Vintage Outdoors
78-755 Darby Road, Bermuda Dunes, CA 92203 • (760) 772-3673 • vintagelandscape.com 361
RE: LMA-17 2026-2027 Landscape Maintenance Agreement Renewal June 1, 2026 Dear Brad & City Representatives,
We would like to express our appreciation to City of Palm Desert for the support over the last few years. We are proud of the progress and achievements we've made together and look forward to continuing our partnership to make LMA-17 the best it can be.

We would like to bring to your attention some of the hurdles that will be impacting our costs in the year of 2026-2027.
• CA minimum wage increase to $16.90 per hour.
• Modest Consumer Price Index (3.1%) increase.

As a result, we are requesting a $815 {3%) increase to the monthly landscape maintenance agreement of LMA-17 for 2026-2027. This will increase the monthly price from $27,190 to $28,005.

In addition to the proposed monthly increase, we respectfully request review and approval of our 2026-2027 Services & Pricing for Extras which can be found on the following page.

We are committed to continue to identify ways to work more efficiently and improve service. Please do not hesitate to contact us if you have any questions.

Sincerely,
K
Y�/
r
�
slCEO
362
COPD LMA-17 / 2026-2027 EXTRA SERVICES & PRICING

MATERIAL & LABOR UNIT PRICE
Shrubs (Standard Species) Price (Labor & Material)
1-Gallon $19
5-Gallon $34
Specimen Species TBD
Canopy Trees (Standard Species) Price (Labor & Material) 15-Gallon $125
24" Box $440
Specimen Species TBD
Material Price
Header Board/ Edging Invoice + 15%
Boulders, Rubble, D.G. Invoice + 15%
Irrigation Invoice+ 15%
Turf/ Sod Invoice+ 15%
Equipment Rental Invoice + 15%
Other Invoice+ 15%
Labor Price
Supervisor $60 / HR
Foreman $47 / HR
laborer $37 I HR
lrrigator / Pipe Fitter $47 I HR
Equipment Operator $105 /HR
Spray Applicator $Sl / HR
Vintage Landscape/ Ecowise: Labor and material pricing may be subject to change based on market conditions and inflation.

CITY OF PALM DESERT
NAME & TITLE· REPRESENTATIVE

SIGNATURE - REPRESENTATIVE
DATE

DBA VINTAGE LANDSCAPE
NAMEITTITLE. REPRESENTATIVE
SIGNA�
DATE
363
364
Varner Rd
Varner Rd
Desert Moon Dr
Robert Rd
Sierra del Sol
Sierra d
Via Las Palmas
30th Ave
10 Thousand
Palms
Clancy Ln
Frank Sinatra Dr
Vista del Sol
Hovley Ln W
Country Club Dr
Monterey Ave Monterey Ave
Monterey Ave
Portola Ave
Monterey
Country Club
Desert Willow
Ramon Rd
Washington St
Ivey Ranch
Country Club
Hidden Palms
Willis Palms
Varner Rd
Varner Rd
Darby Rd
Eldorado Dr
Yucca Ln
Avenue 38
Warner Trl
Hovley Ln E
Oasis Club Dr
California Dr
Frank Sinatra Dr
Washington
St
Washington St
Cook St
Country Club Dr
Classic Club
Golf Course
Toscana
Country Club
Indian Ridge
Country Club
Palm Valley
Country Club
The Lakes
Country Club
Desert Falls
Country Club
Palm Desert
Country Club
Coachella
Valley National
Wildlife Refuge
Bermu
Dun
Desert Palm
Sources: Esri, TomTom, Garmin, FAO, NOAA, USGS, © OpenStreetMap contributors, and the GIS User Community
I

VICINITY MAP
LMA 2
Date: 2026 365
366
Hope
Dr
Clancy Ln
Gerald Ford Dr
Vista del Sol
Hovley Lane W
ry Club Dr
Bob Hope Dr
Monterey Ave
Portola Avenue
Frank Sinatra Drive
Monterey Avenue
Gerald Ford Drive
e Country
Club
unnylands
storic Estate
Monterey
Country Club
Desert Willow
ho Mirage
Palm Desert
Bursera Way
Haystack Road
74 111
Ironwood
Country Club
Shadow
Mountain
Resort
Canyons At
Bighorn
Ivey Ranch
Country Club
Varner Rd
Yucca Ln
Avenue 38
Warner Trail
Merle Drive
Fred Waring Dr
Hovley Lane E
Frank Sinatra Drive
Gerald Ford Drive
Cook Street
Washington Street
Classic Club
Golf Course
Indian Wells
Golf Course
Toscana
Country Club
Indian Ridge
Country Club
Palm Valley
Country Club
The Lakes
Country Club
Desert Falls
Country Club
Palm Desert
Country Club
Coachella
Valley National
Wildlife Refuge
Desert
Miles Ave
Fairway Dr
El Dorado
Country Club
Indian Wells
Country Club
La Quinta
Country Club
Vintage Club
Indian Wells
Sources: Esri, TomTom, Garmin, FAO, NOAA, USGS, © OpenStreetMap contributors, and the GIS User Community
Landscape Area 16
I
2025
367
368

SANTA ROSA CIR

ANACAPA
WAY

ERI N S T

VE L ARDO DR
AS TER
DR

MARIGOLD DR

RUSSELL
LN
LINGO
LN

SAN JOSE
AVE

SAN PASCUAL AV E

SAN JUAN AV E

SA N LU IS REY AVE

SAN CARLOS AVE
SAN

RAFAEL AVE

SAN JOSE AVE

SANTA ROSA WAY

MONTGOMERY
LN
S
A
N
P
A
BLO
A
V
E

GOLETA AVE

SILVER CANYON LN

MARIGOLDDR

PRIVATE ST

HERMOSA
LN

OLIVE CT

SANTA ROSA WAY

PRIVATE ST

RUTLEDGE WAY

KRUG AVE

RANCHO RD

EL CORTEZ WAY
CARMEL
CIR
BUENA
CIR

MASSON ST

MARTINI
CT
HEITZ
CT

MONDAVI
CT

CALLAWAY
CT
STONY
HILL
CT

RUTLEDGE WAY

KRUG AVE

PRIVATE ST

ERIN ST

VELARDO DR

ASTER DR
VANDA
CIR

SAN PASCUAL AVE
BUENA
CIR
CARMEL
CIR

SEBASTIAN
WAY

PRIVATE RD

PRIVATE RD
ZIRCON
CIR W
NEVADA
CIR W

MERCURY
CIR W

PRIMROSE D
S
R

TONY HILL ST

RUTLEDGE WAY

VIA PUCONVIA RENECA

VIA TEMUCO

VIA RENGO VIA ORSORNO

PARK PL

VANADIUM
PL

GARY AVE

CASTELLANA S

CALLE DEL VERANO

C A STELLANA E

CATALINA WAY

CAMINO ARROYO S

CAMINO ARROY

CASTELLANA N

CATALINA WAY

MAGNESIA FALLS DR

EL CORTEZ WAY

MERCURY CIR
M
E

ERCURY CIR W

SUTTER S

MILL RD

DURANGO
PL
NEVADA
CIR W

QUICKSILVER DR

MAGNESIA FALLS DR
S
A
N
P
A
BLO
A
V
E
S
A
N PA
BLO
A
VE

FRED WARING DR

DESERT STAR BLVD
P
O
R
T
O
L
A
A
V
E

FRED WARING DR

SUTTERS MILL RD

TUNGSTEN
PL

GRANITE PL

RANCHO RD
P
O
R
T
O
L
A
A
V
E
P
O
R
T
O
L
A
A
V
E

SAN PASCUAL AVE
EL

CERCADO
CT

MAGNESIA FALLS DR

FRED WARING DR
Landscape Area 17

CIVIC CENTER PARK

MAGNESIA FALLS CITY PARK
I 1 inch = 600 feet
APRIL 2019
Civic Center
+/- 1,987,246 Sq Ft
Magnesia Falls Shared Park
+/- 312,486 Sq Ft

CITY HALL

PARKVIEW
OFFICE

COMPLEX

CIVIC CENTER PARK

LEGENDS
FIELDS

AQUATIC
CENTER
SAN

PASQUAL

CHENNEL
2021
Magnesia Falls City Park
+/- 73,610 Sq Ft
369
370

Page 1 ends

City of Palm Desert Staff Report
Meeting Date: September 10, 2026
Prepared By: Ryan Lamb, Senior Project Manager
Department: Capital Projects
Subject: Award Progressive Design-Build Contract to Barnhart-Reese Construction, Inc., for New Library Facility at the Former Parkview Office Building Site, 73-710 Fred Waring Drive (Project No. CFA00027)
Recommendation

1. Award a Progressive Design-Build Contract to Barnhart-Reese Construction for the New Palm Desert Library Facility in the amount of $2,251,120 for Phase 1 Design and Preconstruction Services, plus a contingency of $225,000 for unforeseen expenses.

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

3. Authorize the City Manager to execute the agreement and any written requests for amendments up to the $225,000 contingency amount, and any other documents necessary to effectuate this action, in accordance with Palm Desert Municipal Code Section 3.30.170(B).

Executive Summary
The competitive selection process for the New Palm Desert Library Facility is complete, and staff recommend awarding a Progressive Design-Build contract to Barnhart-Reese Construction, Inc., the highest-ranked firm, in the amount of $2,251,120 for Phase 1 Design and Pre-construction Services, plus a $225,000 contingency.

Phase 1 will advance the project through additional schematic design and value engineering of the existing design, followed by design development, cost validation, constructability review, construction document development, permitting coordination, and preparation of a proposed Guaranteed Maximum Price (GMP) for construction.

Award of this contract authorizes Phase 1 services only and does not authorize or commit the City to proceed with Phase 2 construction. Following completion of Phase 1, staff will return to City Council with the proposed GMP, any associated funding action, and a separate request for authorization to proceed with construction.

Background
The New Palm Desert Library Facility has progressed through several major milestones since conceptual planning began.

Date Project Milestone
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March 28, 2024 City awarded conceptual design services to Richärd Kennedy Architects.

February 27, 2025 Schematic Design was completed, and cost estimates were used to establish the City’s approved total project budget of approximately $30 million.

November 13, 2025 City Council awarded a progressive design-build contract to Tilden-Coil Constructors, Inc.

March 26, 2026 City Council approved Amendment No. 1 to Tilden-Coil’s contract to compensate for completed preconstruction/design services, add demolition of the Parkview Office Building, and conclude Tilden-Coil’s remaining design-build scope.

April 20, 2026 City released a new Request for Proposals for progressive design-build services.

May 21, 2026 Six proposal submissions were received.

June 15, 2026 First round of interviews with three shortlisted proposers conducted.

Selection Committee selected two firms to return for second interviews.

July 7, 2026 Second interviews for two shortlisted proposers conducted.

August 20, 2026 City Council Study Session where Council provided feedback on the preferred design approach, project budget parameters, and project delivery method.

City staff initiated the current procurement following City Council approval of Amendment No. 1 to Tilden-Coil Constructors, Inc.’s contract in March 2026. The amendment concluded TildenCoil’s remaining Progressive Design-Build services while retaining the firm to complete demolition of the former Parkview Office Building at 73-710 Fred Waring Drive, the site of the new Palm Desert Library Facility. This action followed identification of a significant variance between the City’s approved project budget and the project cost identified through the prior design validation process. Staff subsequently issued a new RFP to identify a Progressive Design-Build partner capable of advancing the project in alignment with the City’s program goals, budget expectations, and schedule objectives.

While the new procurement process was underway, Tilden-Coil completed demolition of the former Parkview Office Building in May 2026, clearing the site for development of the new library facility.

Analysis
The Progressive Design-Build procurement process was structured to identify the team best qualified to partner with the City through the remaining design and construction of the New Palm Desert Library Facility. With the competitive selection process now complete, staff recommends Barnhart-Reese Construction as the City’s Progressive Design-Build partner based on the evaluation process described below.

Unlike traditional design-bid-build procurement, Progressive Design-Build places significant emphasis on qualifications, collaboration, cost management, and the ability of the owner, designer, and builder to work together during design development before establishing a final construction price.
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Six proposals were received in response to the City's RFP. Following review of the written proposals, the three highest-ranked teams were invited to participate in the Design Validation phase and first-round interviews.

The Selection Committee included representatives from Capital Projects, Finance, Library Services, and the City’s Construction Manager. Consistent with the criteria established in the RFP, the Committee evaluated each team’s qualifications and experience, proposed project team, understanding of the City’s objectives, technical and design approach, cost and schedule management, and overall ability to successfully deliver the project.

Following the first round of interviews, the Selection Committee invited the two highest-ranked teams to participate in a second interview on July 7, 2026. The second interviews allowed the Committee to further evaluate each team’s approach to design, cost management, value engineering, constructability, risk management, and collaboration through the Progressive Design-Build process.

Following the second round of interviews, the Selection Committee identified Barnhart-Reese Construction as the highest-ranked Progressive Design-Build team. The team demonstrated a strong understanding of the City’s project objectives, supported by a collaborative approach to design development, cost management, value engineering, constructability, and project delivery.

Phase 1 Progressive Design-Build Services
The recommended contract initially authorizes Phase 1 Progressive Design-Build services.

During Phase 1, Barnhart-Reese will work collaboratively with City staff and the City’s project consultants to advance the project design while evaluating design decisions in conjunction with cost, schedule, constructability, operations, and long-term project value. Services include schematic design refinement, design development, preconstruction services, cost estimating and reconciliation, value engineering, constructability reviews, schedule development, risk management, construction document development, permitting coordination, and preparation of a proposed Guaranteed Maximum Price (GMP).

Consistent with City Council feedback provided during the August 20, 2026, Study Session, Phase 1 will begin with additional schematic design and value engineering of the existing Richärd Kennedy Architects (RKA) design to identify opportunities to reduce project costs and develop a more cost-effective design while maintaining the City’s approved program objectives and key architectural elements. Following this effort, the project will advance into design development, with Barnhart-Reese continuing to validate project scope, cost, schedule, and constructability as the design progresses.

As part of this process, staff will also work with Barnhart-Reese to identify long-lead materials and equipment that may benefit from early procurement. Where appropriate, staff will bring Early GMP Amendments to City Council for consideration prior to establishment of the final GMP. This approach allows the City to secure critical materials and equipment earlier in the design process, reducing exposure to procurement delays, material escalation, and potential impacts to the overall construction schedule.

Early GMP Amendments may also be used to authorize early construction activities that can proceed in advance of the full construction package. This flexibility is a key benefit of the 373

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Progressive Design-Build delivery method, allowing design, procurement, and construction activities to overlap where appropriate rather than requiring completion of the entire design before construction-related activities can begin.

Project Cost and Budget
The City’s current approved project budget remains $30 million. During the August 20, 2026, Study Session, City Council discussed the project’s current cost outlook and provided feedback indicating general support for advancing the project based on an anticipated total project cost of approximately $45 million. No budget amendment or additional appropriation was approved as part of the Study Session.

Sufficient funding is available within the existing project budget to authorize Phase 1 services; therefore, an increase to the overall project budget is not required as part of this action.

During Phase 1, Barnhart-Reese will continue to develop and validate project costs as the design advances. As additional funding is required to authorize construction activities, staff will return to City Council with the applicable GMP Amendment and any corresponding budget augmentation. This approach allows the City to defer additional appropriation until the associated scope and costs are sufficiently defined.

This action only authorizes Phase 1 services and does not commit the City to move forward with Phase 2 construction. Following completion of Phase 1, staff will return to City Council with the proposed GMP for Phase 2. At that time, City Council will consider the GMP, any additional funding needed, and whether to authorize construction to proceed.

Environmental Review
The New Palm Desert Library Facility was previously reviewed in accordance with the California Environmental Quality Act (CEQA). On November 13, 2025, City Council determined that the project is categorically exempt from further environmental review pursuant to State CEQA Guidelines Sections 15302 (Replacement or Reconstruction) and 15332 (In-Fill Development Projects).

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

Financial Impact
Funding for this project is included in the approved FY 2026-27 Financial Plan and Ten-Year Capital Improvement Project (CIP) list in Account Nos. 4524136-4400100 and 4514136- 4400100. This action has no fiscal impact on the General Fund.

New Library:

Authorized Budgets
Date
Authorize
d
Total Library
Capital
Measure
G
Capital
Bonds
FY 2024-25 CIP Budget 7/1/2024 3,975,489 3,975,48
9 - -
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FY 2025-26 CIP Budget 7/1/2025 26,000,00
0 - 6,000,000 20,000,00
0 Total Authorized Budget 29,975,48
9 3,975,48
9 6,000,000 20,000,00
0 Authorized Expenditures
Date
Authorize
d
Total Library
Capital
Measure
G
Capital
Bond
Conceptual Design 4/15/2024 611,366 611,366 - -
Engineering and Other Services Various 352,474 352,474 - - Construction Management Svcs
12/11/202
5 1,662,627 1,662,62
7 - -
Tilden-Coil: Pre-con & Parkview
Demo
11/13/202
5 1,001,950 1,001,95
0 - -
Design Validation Reports 5/14/2026 30,000 30,000 - -
Total Authorized Expenditures 3,658,417 3,658,41
7 - -
Progressive Design-Build:

Barnhart-Reese
Construction, Inc.* 9/10/2026 2,251,120 317,073 1,934,047 - Contingency* 225,000 - 225,000 -
Remaining Project Budget Available 23,840,95
3 (0) 3,840,953 20,000,00
0 *This request
Attachments

1. Progressive Design-Build Contract

2. Barnhart-Reese Construction, Inc. Proposal

3. RFP Evaluation Tabulation
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1. Site-Specific Property Interest
Does this item involve a project site or other identifiable real property? ☒ Yes
☐ No
If yes, identify the project site: Former Parkview Office Building site at 73-710 Fred Waring Drive
Councilmembers should consider whether they own, lease, or hold interests in real property within 1,000 feet of the project site. (Gov. Code § 87103(b); FPPC Reg. 18702.2).

PROGRESSIVE DESIGN-BUILD CONTRACT

BETWEEN THE CITY OF PALM DESERT
AND BARNHART-REESE CONSTRUCTION, INC.

This Progressive Design-Build Contract (“Contract”) is made and entered into this 10th day of September, 2026 (“Effective Date”) by and between the City of Palm Desert, a municipal corporation and charter city 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 Barnhart-Reese Construction, Inc., an S Corporation, with its principal place of business at 10805 Thornmint Road, Suite 200, San Diego, CA 92127 (“Design-Builder”). City and Design-Builder are sometimes individually referred to as “Party” and collectively as “Parties.”

RECITALS
A. City is a public agency of the State of California and is in need of turnkey design and construction for the following project:

New Library Facility
Project # CFA00027
(herein after referred to as “Project”)
The Project includes two phases which are more fully described in the Contract Documents (collectively, “Services” or “Work”):
(1) Preconstruction design phase services (“Phase 1”); and (2) Construction services to complete the Project (“Phase 2”).

B. City issued a Request for Proposals (“RFP”) to interested and qualified firms to a submit proposal on May 21, 2026 (“Proposal”).

C. City determined that Design-Builder’s Proposal provided the best value to the City and the City Council has awarded this Contract to Design-Builder at its regular September 10, 2026, meeting.

D. During Phase 1, Design-Builder shall perform Phase 1 Services consistent with the requirements of the Contract Documents, during or after which Design-Builder shall prepare and propose to City, on an Open Book Basis, a Guaranteed Maximum Price (“GMP”) to complete Phase 2 Services and, if accepted by City, the Parties shall enter into an amendment to this Contract for Design-Builder’s performance of Phase 2.

E. In entering into this Contract, the Parties expressly agree that City is under no obligation to proceed with Phase 2.

F. Design-Builder warrants and represents that it is duly licensed in the State of California and is able and qualified to perform the Services for the Project. 377
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2 G. The Parties desire to enter into this Contract for the purpose of setting forth the terms and conditions upon which Design-Builder will complete the Project.

TERMS

1. CONTRACT DOCUMENTS.

Incorporation of Recitals; Contract Documents.

1.1 The above referenced recitals are true and correct and are incorporated into this Contract by this reference. This Contract includes and hereby incorporates in full by reference the following documents which are the “Contract Documents”, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
(i) Progressive Design-Build Contract
(ii) General Conditions (Attachment 1)
(iii) Phase 1 Scope of Services (Attachment 2)
(iv) Special Conditions (Attachment 3)
(v) Design-Builder’s Cost Proposal Form (Attachment 4)
(vi) Performance Bond (Attachment 5)
(vii) Payment Bond (Attachment 6)
(viii) GMP Amendment (Attachment 7)
(ix) RFP and all addenda, attachments and appendices
(x) Design-Builder Certifications from Proposal
(xi) GMP Amendment
(xii) Change Orders
(xiii) Permits
(xiv) Construction Documents

1.2 Use of Defined Terms. Any capitalized term herein not defined in the Contract, or other Contract Documents, shall have the meaning set forth in the General Conditions.

1.3 Integration/Modification. The Contract Documents and any documents specifically incorporated by reference are completely integrated as the complete and 378
Contract No. _____________
3 exclusive statement of the terms of this Contract. This Contract supersedes all previous contracts, agreements, and/or communications, both oral and written, and constitutes the entire understanding of City and Design-Builder. No extrinsic evidence whatsoever shall be admissible or used to explain or supplement the terms of this Contract, Contract Documents, or any items incorporated by reference.

2. DESIGN-BUILDER’S SERVICES AND RESPONSIBILITIES.

2.1 Phase 1.
(a) Phase 1 Services. Design-Builder promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately perform Phase 1 and complete Phase 1 Services consistent with the requirements in the Contract Documents. The Phase 1 Services are more particularly in the Contract Documents, including, without limitation, Attachment 2. (b) Phase 1 Commencement. Design-Builder shall commence the performance of Phase 1 Services upon City’s issuance of a Notice to Proceed to complete Phase 1 Services in accordance with the Contract Documents. City has no obligation to issue a Notice to Proceed for Phase 1 Services. All Phase 1 Services performed by DesignBuilder prior to City’s issuance of a Notice to Proceed shall be at Design-Builder’s sole risk. (c) Phase 1 Term. Design-Builder shall commence the performance of Phase 1 upon City’s issuance of a Notice to Proceed and shall complete the Phase 1 Work within 300 calendar days of City’s issuance of the Notice to Proceed. Design-Builder shall not be entitled to any costs due to any impacts, disruption, or delays occurring during performance of Phase 1 Services. If City or any other party exceeds or fails to meet any time limit provided in the Contract Documents for performance of any action during Phase 1 Services, Design-Builder’s sole remedy shall be an adjustment of the time period for performance of Phase 1 Services. Any delay that occurs during Phase 1 shall have no impact on City’s right to terminate Phase 1 at any time as provided in the General Conditions.
(d) Early Purchase Items; Early Construction Packages. The Parties may agree to have Design-Builder procure Early Purchase Items and perform Early Construction Packages prior to commencing Phase 2.

2.2 Phase 2.
(a) Guaranteed Completion Date. Design-Builder shall complete Phase 2 within the Guaranteed Completion Date. As of the Effective Date, the Guaranteed Completion Date has not been agreed to by the Parties. The Guaranteed Completion Date will be established in a GMP Amendment, and it shall run from the Notice to Proceed for Phase 2 even if issued prior to completion of the 100% Construction Documents. (b) Commencement of Phase 2. Design-Builder shall not commence Work for Phase 2 until City executes a GMP Amendment and issues a Notice to Proceed for Phase 2. Design-Builder may request a Notice to Proceed with Construction Work prior to 379
Contract No. _____________
4 completion of the 100% Construction Documents, and City may issue same, provided that Design-Builder shall not construct any portion of the Project until the design of such portion has been issued for construction.
(c) Work Packages. City and Design-Builder may agree to complete the Construction Work in multiple stages with individual Work Packages. Each Work Package would be a discrete and defined portion of the Project that includes its own GMP and Milestone Date, agreed to by the Parties in a GMP Amendment. City may issue Work Packages that Design-Builder can perform concurrently.

3. DESIGN-BUILDER’S COMPENSATION.

3.1 Phase 1 Compensation.
(a) City shall pay Design-Builder a lump sum amount of Two Million Two Hundred Fifty-One Thousand One Hundred Twenty and 00/100 Dollars ($2,251,120.00) for performance of the Phase 1 Services based on the Work satisfactorily performed and accepted by City pursuant to the Contract Documents, subject to any additions or deductions as provided in the Contract Documents (“Phase 1 Fee”). The Phase 1 Fee includes any and all costs and expenses required to provide the Phase 1 Services. City shall not be liable to Design-Builder for any other costs or expenses paid or incurred by Design-Builder in performing Phase 1 Services, except as expressly provided for in this Contract.

3.2 Phase 2 Compensation.
(a) Construction Phase Compensation. Design-Builder’s compensation for Phase 2 Services shall be the Phase 2 Price as further described, and subject to, the limitations set forth below and as indicated in the Contract Documents. Design-Builder expressly agrees and acknowledges that, as of the Effective Date, Design-Builder is not entitled to any compensation for Phase 2 Services, and shall only be entitled to such compensation if: (1) City accepts the Design-Builder’s GMP Proposal; (2) the Parties execute, and the City Council or its designee approves, a GMP Amendment; and (3) City issues a Notice to Proceed for Phase 2.

4. DESIGN-BUILDER’S CONTRACTOR’S LICENSE AND REGISTRATION.

Design-Builder shall have only appropriately licensed contractors performing work on the Project as required by the Business and Professions Code. Design-Builder (License No. CA #912130) shall act as the licensed contractor for the Project. Design-Builder shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the Design-Builder shall be fully responsible to City for any damages and/or delays to the Project as specified in the Contract. The licensed contractor shall be registered with the Department of Industrial Relations to perform public work (DIR Registration #1000000044).

5. DESIGN-BUILDER’S DESIGN PROFESSIONAL.
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Contract No. _____________
5 Design-Builder shall name a specific person to act as the Design Professional as described in the General Conditions, subject to the approval of City. Design-Builder hereby designates Ralph Roesling of RNT Architects (License No. CA #C-10987) to act as the Design Professional for the Project. Design-Builder’s Design Professional shall perform all Design Work required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and Design-Builder shall be fully responsible to City for any damages and/or delays to the Project as specified in the indemnification provisions of the Contract. Any change in the Design Professional shall be subject to City’s prior written approval, which approval shall not be unreasonably withheld. The new Design Professional shall be of at least equal competence as the prior Design Professional. In the event that City and Design-Builder cannot agree as to the substitution of a new Design Professional, City shall be entitled to terminate this Contract as described in the General Conditions.

6. AUTHORITY OF SIGNATORIES.

The persons executing this Contract on behalf of their respective Parties represent and warrant that they have the authority to do so under law and from their respective Parties.

SIGNATURES ON FOLLOWING PAGE
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Contract No. _____________
6 SIGNATURE PAGE TO PROGRESSIVE DESIGN BUILD CONTRACT

BY AND BETWEEN THE CITY OF PALM DESERT
AND BARNHART-REESE CONSTRUCTION, INC.

IN WITNESS WHEREOF, the Parties hereby execute this Progressive Design-Build Contract as of the Effective Date.

CITY OF PALM DESERT
By:

Chris Escobedo
City Manager
Attest:

By:_____________________________
Anthony J. Mejia
City Clerk
Approved as to form:

By:_____________________________
Isra Shah
City Attorney

BARNHART-REESE CONSTRUCTION,
INC., AN S CORPORATION
By:

Tamela Reese
President
By:

Nancy Barnhart
Secretary
912130 B – General Building_____________
Contractor’s License Number
1000000044 _________________________
DIR Registration Number
Office Use:

Quality Check Insurance Review Bonds
City Clerk Contracts Initial Final
N/A
382
Contract No. _____________
Attachment 1 – General Conditions
7 ATTACHMENT 1

GENERAL CONDITIONS
ARTICLE 1 - DEFINITIONS; TERMINOLOGY

1.1 Applicability.

1.2 Defined Terms.

1.3 Terminology.

ARTICLE 2 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE

2.1 Intent of Contract Documents.

2.2 Reference Standards; Interpretation of Contract Documents.

2.3 Order of Precedence.

2.4 Amending and Supplementing Contract Documents.

2.5 Examining Contract Documents, Project Site.

2.6 Reuse of Documents.

2.7 Ownership and Use of Construction Documents.

2.8 Confidential Information.

ARTICLE 3 - INDEMNIFICATION; INSURANCE; BONDS

3.1 Indemnification.

3.2 Insurance.

3.3 Performance Bond and Payment Bond.

ARTICLE 4 - CITY RESPONSIBILITIES

4.1 Availability of Site.

4.2 Administration of the Contract by City.

ARTICLE 5 - DESIGN-BUILDER’S RESPONSIBILITIES

5.1 General Responsibilities.

5.2 Design Work.

5.3 Staffing of Project.

5.4 Subcontractors.

5.5 Safety Requirements.

5.6 Security.

5.7 Hazardous Waste.

5.8 Water Quality Management and Compliance.

5.9 Environmental Requirements.
383
Contract No. _____________
Attachment 1 – General Conditions
8 5.10 Labor Requirements.

ARTICLE 6 - COST OF CONSTRUCTION WORK

6.1 Early Work and Purchases.

6.2 Guaranteed Maximum Price.

6.3 Composition of Guaranteed Maximum Price.

6.4 Convert GMP to Lump Sum Price.

6.5 Self-Performed Construction Work.

6.6 Key Subcontractors.

6.7 Subcontracted Construction Work.

6.8 GMP Proposal.

6.9 GMP Amendment.

ARTICLE 7 - SUBMITTALS; SHOP DRAWINGS

7.1 Submittals.

7.2 Shop Drawings and Sample Submittal Procedures.

ARTICLE 8 - MATERIALS; EQUIPMENT

8.1 Materials, Equipment.

8.2 Test and Inspections of Work.

ARTICLE 9 - PROJECT SITE

9.1 Use of Project Site.

9.2 Preservation and Restoration of Property.

9.3 Conditions at Project Site.

9.4 Ownership of Site Materials Found.

9.5 Existence of Utilities at the Work Site.

9.6 Trenches.

9.7 Differing Site Conditions.

ARTICLE 10 - PROSECUTION OF THE WORK

10.1 Access to Work.

10.2 Construction Quality Assurance, Quality Control.

10.3 Design-Builder’s Performance of Services.

10.4 Related Projects; Cooperation.

10.5 Traffic Control.

10.6 Record Drawings.

10.7 Defective Work.
384
Contract No. _____________
Attachment 1 – General Conditions
9 10.8 Partial Utilization.

ARTICLE 11 - SCHEDULE; CONTRACT TIME

11.1 Progress and Completion.

11.2 Time for Completion.

11.3 Extension of Time for Completion.

11.4 Liquidated Damages.

11.5 Schedule.

ARTICLE 12 - CHANGE IN CONTRACT PRICE; CHANGE IN CONTRACT TIMES

12.1 Phase 1 Changes.

12.2 Phase 2 Changes.

12.3 Partnering.

12.4 Procedure for Resolving Claims.

ARTICLE 13 - COMPLETION; GUARANTEE OF WORK

13.1 Final Completion.

13.2 Guarantee of Work.

ARTICLE 14 - TERMINATION; SUSPENSION

14.1 Termination of Phase 1 Services.

14.2 Suspension of Phase 1 Services by City.

14.3 Suspension of Work by City.

14.4 Termination of Work for Cause by City.

14.5 Termination of Work for Convenience by City.

ARTICLE 15 - MEASUREMENT; PAYMENT

15.1 Payment of Compensation for Phase 1 Services.

15.2 Payment of Compensation for Phase 2 Work.

15.3 Payments to Subcontractors.

15.4 Final Acceptance and Payment.

ARTICLE 16 - MISCELLANEOUS CONTRACT PROVISIONS

16.1 Separate Contracts.

16.2 Notice.

16.3 Notice of Third Party Claims.

16.4 Cumulative Remedies.

16.5 Survival of Obligations.

16.6 Controlling Law.
385
Contract No. _____________
Attachment 1 – General Conditions
10 16.7 Jurisdiction; Venue.

16.8 Prohibited Interests.

16.9 Severability.

16.10 Headings.

16.11 City’s Right to Audit.

16.12 Assignment.

16.13 Assignment of Antitrust Actions.

16.14 State License Board Notice.

16.15 Change In Name Or Nature of Design-Builder’s Legal Entity.

16.16 Other Legal Provisions.
386
Contract No. _____________
Attachment 1 – General Conditions
11 ARTICLE 1 - DEFINITIONS; TERMINOLOGY

1.1 Applicability.

A. These General Conditions govern Phase 1, Phase 2, and completion of the Project by Design-Builder.

1.2 Defined Terms.

A. Wherever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.

1. Act of God – Act of God is an earthquake of magnitude 3.5 or higher on the Richter Scale or a tidal wave.

2. Additional Work – New or unforeseen work when City’s Representative determines that it is not covered by the Contract Documents.

3. Allowance – A sum used by City for categories of Construction Work that cannot be established at the time of a GMP Amendment.

4. Applicable Laws – The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities, or private authorities with jurisdiction (including utilities), to the extent they apply to the Project.

5. Background Documents – Key documents provided to Design-Build Entity prior to the commencement of Phase 1 to further understand the requirements of the Project. Background Documents are not a Contract Document.

6. Certificate of Final Completion – A certificate issued by City that the Work is entirely complete and in all respects is in compliance with the Contract Documents, including, but not limited, to the Punch List for the Work, as further described in the Contract Documents.

7. Change Order – A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the Phase 1 Fee, GMP, Phase 2 Price or the Contract Time in accordance with the Contract Documents and in the form contained in the Contract Documents.

8. Change Order Request – A request made by Design-Builder for an adjustment in the Phase 1 Fee, GMP, Phase 1 Price or Contract Time as the result of a Design-Builder-claimed change to the Work. 387
Contract No. _____________
Attachment 1 – General Conditions
12 9. City Council – The City Council of the City of Palm Desert.

10. City’s Representative – The person designed by City to act as its representative during the performance of the Contract, and identified in the Special Conditions, or other person authorized to act for and on behalf of City, acting either directly or through properly authorized agents, such agents acting severally within the scope of the particular duties entrusted to them.

11. Claim – A demand or assertion by City or Design-Builder seeking an adjustment of the Phase 1 Fee, GMP, Phase 2 Price, Contract Time, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim.

12. Concurrent Delay – When the City-caused delay to the Critical Path occurs simultaneously with a Design-Builder caused delay to the Critical Path.

13. Construction Documents – The Drawings and Technical Specifications prepared by Design-Builder for the Project and accepted by City. The Construction Documents shall set forth in detail all items necessary to complete the construction (other than such details customarily provided by others during construction) of the Project in accordance with the Contract Documents. Following commencement of Phase 2, Construction Documents become part of the Contract Documents upon their completion and acceptance by City. All amendments and modifications to the Construction Documents must be approved by City in writing.

14. Construction Work – That portion of the Work on the Project consisting of the provision of labor, materials, furnishings, equipment and services in connection with the construction of the Project as set forth in the Contract Documents.

15. Contract – The entire integrated written agreement between City and Design-Builder concerning the Work. “Contract” may be used interchangeably with “Agreement” in the Contract Documents.

16. Contract Price – The sum total of all compensation due to Design Builder for all Phase 1 Services and Phase 2 Services under the Contract.

17. Contract Time – The number of days or the dates stated in the Contract Documents or GMP Amendment to achieve defined Milestone Dates, if any, and to complete the Work by the Guaranteed Completion Date.

18. Critical Path – A sequence of logically tied activities that represents the longest path within a project, which determines the shortest possible duration. Any delay of activity completion along this path will proportionately affect the completion date of the project.
388
Contract No. _____________
Attachment 1 – General Conditions
13 19. CPM Schedule – A scheduling method that uses a network diagram to depict the sequences of tasks required to complete the Project, or a portion thereof, which are known as paths. Once the paths are defined, the duration of each path is calculated by an algorithm to identify the Critical Path, which determines the total duration of the Project, or a portion thereof.

20. Critical Supply Shortage – An unusual shortage in materials that is (a) supported by documented proof that Design-Builder made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have been obtained only at exorbitant prices entirely inconsistent with current and standard rates taking into account the quantities involved and the usual industry practices in obtaining such quantities; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated by DesignBuilder at the time it entered a GMP Amendment. Market fluctuations in prices of materials, whether or not resulting from a Force Majeure Event, does not constitute a Critical Supply Shortage.

21. Day – A calendar day of 24 hours measured from midnight to the next midnight.

22. Defective Work – Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference standard, test, or approval referenced in the Contract Documents.

23. Design-Builder – The individual or entity with which City has contracted for performance of the Work.

24. Design-Builder Contingency – An amount approved by City and part of a GMP that Design-Builder may use with the written approval of City for unanticipated work as further described in the Contract Documents.

25. Design-Builder Representative – The person or firm identified as the primary contact person and representative of Design-Builder as designated in the Contract and who shall not be changed without prior written consent of City.

26. Design-Builder Self-Performance Fee – Design-Builder’s fee for its home office overhead and profit applied to Design-Builder’s Direct Cost and Indirect Cost, as further described in the Contract Documents.

27. Design-Builder’s Proposal – The statement of qualifications submitted by Design-Builder in response to the RFP.
389
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Attachment 1 – General Conditions
14 28. Design-Builder Subcontractor Fee – Design-Builder’s fee for its home office overhead and profit applied to Subcontractor Construction Cost, as further described in the Contract Documents.

29. Designer of Record – The individual, partnership, corporation, joint venture, or other legal entity completing the Design Work on the Project and who provides the Design Professional for the Project.

30. Design Professional – The individual named in the Contract who will provide the required architectural, engineering, and other professional services required for the coordinated design of the Project and the administration of construction.

31. Design Work – The portion of the Work on the Project consisting of the design services and design deliverables required to be provided in connection with the design of the Project as set forth in the Contract Documents.

32. Differing Site Conditions – Concealed or latent physical conditions or subsurface conditions at the Site that: (i) Design-Builder believes may be hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (ii) materially differ from those indicated in the Background Documents; or (iii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally recognized as inherent in the Work. The term Differing Site Conditions does not include, among other things, conditions of which Design-Builder had knowledge of as of the applicable GMP Amendment date, including conditions that could reasonably have been known, discovered or revealed as a result of the examinations, investigations, explorations, tests or studies of the Site required to be performed by Design-Builder as part of Design Work, including, but not limited to, the Design-Builder’s analysis and validation of the Background Documents, or that Design-Builder could have reasonably inferred based on its experience and expertise.

33. Direct Cost – Verifiable cost necessarily incurred in the performance of Construction Work and more particularly described in the General Conditions.

34. Drawings – The graphic and pictorial portions of the Contract Documents showing the design, location, and dimensions of the Work to be done on the Project, generally including plans, elevations, sections, details, schedules, and diagrams prepared as part of the Construction Documents.

35. Early Construction Package – Construction Work negotiated separately from Phase 2 to commence demolition, grading, site preparation, utility 390
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15 work, mobilization or other work prior to the start of Phase 2. DesignBuilder shall perform an Early Construction Package subject to the requirements of the Contract Documents for Construction Work.

36. Early Construction Package Amendment – An approved amendment to the Contract authorizing Design-Builder to perform an Early Construction Package subject to the requirements of the Contract Documents for Construction Work.

37. Early Purchase Item – Long lead procurement items (manufactured/ fabricated items, equipment, materials and supplies) for the Project.

38. Early Purchase Item Amendment – An approved amendment to the Contract authorizing Design-Builder to commence procurement of an Early Purchase Item.

39. Effective Date of the Contract – The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver.

40. Final Completion – The time at which Work has been entirely completed by Design-Builder, and City has accepted Work, at the sole discretion of City, as further described in the Contract Documents.

41. Force Majeure Event – An event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the Site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); (4) pandemics, epidemics or quarantine restrictions; (5) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of Design-Builder and its Subcontractors, of every Tier, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (6) a Critical Supply Shortage. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of City in its capacity as a municipal authority.

42. General Conditions Cost – The costs for activities, facilities, and services required to support the Construction Work and manage the Project site, without mark-up, which shall include, without limitation, those items listed in a GMP Amendment as further described in the Contract Documents. 391
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Attachment 1 – General Conditions
16 43. General Contractor – The individual, partnership, corporation, joint venture, or other legal entity that is licensed as a California general contractor and is the prime contractor on the Project.

44. Governmental Approvals – Any permit, license, authorization, consent, certification, exemption, grant, waiver, ruling, entitlement, variance or other approval, and any revision, modification, amendment, supplement, renewal or extension of any of the foregoing, issued by a Governmental Body of whatever kind and however described, which is required under Applicable Law to be obtained or maintained by any person with respect to the Project.

45. Governmental Body – Any federal, state, regional or local legislative, executive, judicial or other governmental board, department, agency, authority, commission, administration, court or other body, or any official thereof, other than the City Council, having jurisdiction in any way over or in respect of any aspect of the performance of the Contract or the Project.

46. Guaranteed Completion Date – The time within in which Design-Builder must achieve Final Completion of the Project.

47. Guaranteed Maximum Price or GMP – The maximum possible compensation paid by City to Design-Builder for the performance and completion of the Phase 2 Work, subject to any additions or deductions as provided in the Contract Documents. There may be more than one GMP on the Project, which may be specific to a particular Stage.

48. GMP Amendment – A written amendment duly executed by the Parties resulting from Design-Builder submitting a GMP Proposal and the Parties agreeing to a mutually acceptable GMP. There may be more than one GMP Amendment on the Project, which may be specific to a particular Stage.

49. GMP Proposal – Design-Builder’s proposal to City to complete Phase 2, or a portion thereof, and further described in the Contact Documents.

50. Hazardous Waste – Any substance: the presence of which requires investigation or remediation under any federal, state or local law, statute, regulation, ordinance, order, action, policy, or common law; which is or becomes defined as a "hazardous waste," "hazardous substance," pollutant, or contaminant under any federal, state or local law, statute, regulation, rule or ordinance, or amendments thereto, including, without limitations, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"), as amended, or the Resource, Conservation and Recovery Act, as amended, 42 U.S.C.

Section 6901 et seq. ("RCRA"); which is petroleum, including crude oil or any fraction thereof not otherwise designated as a “hazardous substance” under CERCLA including, without limitation, gasoline, diesel fuel, or other petroleum hydrocarbons; which is toxic, explosive, corrosive, flammable, 392
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Attachment 1 – General Conditions
17 infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any regulatory agency or instrumentality or the United States; the presence of which on the Site causes or threatens to cause a nuisance upon the Site or to the adjacent properties or poses or threatens to pose a hazard to the health or safety of persons on or about the Site; the presence of which on adjacent properties could constitute a trespass by Design-Builder or City; or as defined in the California Health and Safety Code. For the purposes of the Contract, “Hazardous Waste” shall also include, but are not limited to, “Underground Storage Tanks.” "Underground Storage Tank" shall have the definition assigned to that term by Section 9001 of RCRA, 42 U.S.C. Section 6991, and also shall include:
any tank of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel; any tank used for storing heating oil for consumption on the premises where stored; any septic tank; and any pipes connected to the above items.

51. Holidays – Holidays occur on:

New Year’s Day - January 1
Martin Luther King Jr. Day – Third Monday of January
President’s Day – Third Monday of February
Memorial Day - Last Monday in May
Independence Day - July 4
Labor Day - First Monday in September
Veteran’s Day - November 11
Thanksgiving Day - Fourth Thursday in November
Friday after Thanksgiving
Christmas Eve - December 24
Christmas Day - December 25
New Years’ Eve December 31
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.

52. Key Personnel – Design-Builder’s personnel identified as key to the overall success of the Project, and, at a minimum, including those positions defined as Key Personnel in Design-Builder’s Proposal. Key Personnel are specifically identified in the Special Conditions.

53. Key Subcontractor – A Subcontractor identified in Design Builder’s Proposal that Design Builder contracts with to fulfill a key role in Design Builder completing the Project. If any, Key Subcontractors are identified in the Special Conditions.

54. Key Subcontractor Fee – A Key Subcontractor’s fee for its home office overhead and profit applied to a Key Subcontractor’s Direct Cost and 393
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Attachment 1 – General Conditions
18 Indirect Cost, as further described in the Contract Documents. If any, Key Subcontractor Fee is identified in the Special Conditions.

55. Liens – Charges, security interests, or encumbrances upon Project funds, or personal property, including without limitation Stop Payment Notices.

56. Lump Sum Price – If allowed by City as a substitute for a GMP, the maximum possible compensation paid by City to Design-Builder for the performance and completion of Work, subject to any additions or deductions as provided in the Contract Documents. There may be more than one Lump Sum Price on the Project, which may be specific to a particular Stage.

57. Milestone Date – The date upon which Design-Builder is required to complete an Early Construction Package, Work, Work Package, Stage, or particular element or component of the Project. A Milestone Date may be defined as a date certain or as a number of calendar days or working days from a Notice to Proceed or other event.

58. Notice to Proceed – A written notice given by City to Design-Builder fixing the date on which Design-Builder may proceed with a Phase, Early Construction Package, Early Purchase Item, GMP, Work, Work Package, Stage, or a particular element or component of the Project, and when the Contract Time will commence to run.

59. Open Book Basis – Design-Builder’s provided information, including estimates and pricing, that shows all assumptions, data, and other substantiation supporting the information presented and that allows City to check and verify the accuracy of the material presented. This entails all information Design-Builder used to develop the cost under consideration, including labor, fringe, benefits, equipment, materials, productivity, estimating factors, allowances, risk, contingency, indirect costs, discount rates, interest rates, inflation, insurance, bonding, fees, overhead, profit, and other items that comprise the cost.

60. Payment Bond – The labor and materials payment bond provided by Design-Builder’s surety to secure the payment obligations of Design-Builder for Work, as described in and maintained pursuant to the Contract and in the form set forth in the Contract Documents.

61. Performance Bond – The performance bond provided by Design-Builder’s surety to secure performance of Work, as described in and maintained pursuant to the Contract and in the form set forth in the Contract Documents.

62. Phase – Either Phase 1 or Phase 2.

63. Phase 1 – The first phase of the Project requiring Design-Builder to perform Design Work as further described in the Phase 1 Scope of Services. 394
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Attachment 1 – General Conditions
19 64. Phase 1 CPM Schedule – A CPM Schedule to complete the Phase 1 Services within the Contract Time. The detailed requirements for the Phase 1 CPM Schedule are described in the Contract Documents.

65. Phase 1 Fee – The amount to be paid by City to Design-Builder as full compensation for performance of Phase 1 Services and completion of the Phase 1 Services, subject to any additions or deductions as provided in the Contract Documents.

66. Phase 2 – The second phase of the Project requiring Design-Builder to commence the Construction Work, and complete the Project, as further described in the Contract Documents.

67. Phase 2 CPM Schedule – A CPM Schedule to complete the Phase 2 Work on the Project within the Contract Time. The detailed requirements for the Phase 2 CPM Schedule are stated in the Contract Documents.

68. Phase 2 Price – The total price established by the Parties for Design Builder’s performance of Phase 2 Work and completion of the Phase 2 Work, in accordance with the Contract Documents and as reflected in a GMP Amendment, subject to any additions or deductions as provide in the Contract Documents. There may be more than one GMP Amendment that is part of the Phase 2 Price.

69. Project – The total design, construction, and performance of the Work and all other requirements of the Contract Documents.

70. Project Warranty – A written guarantee provided to City by Design-Builder that Work remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this State, whichever is longer, as further described in the Contract Documents.

71. Punch List – A list of items for the Project, prepared by the City, which remain to be replaced or completed in accordance with the requirements for Final Completion of Work.

72. Record Drawings – The record set of as-builts prepared by Design-Builder during the Project that reflect all changes made in the Construction Documents during Phase 2, and show the exact dimensions, geometry, and location (including alignment points) of all elements of the Work completed under the Contract Documents.

73. Request for Information or RFI – Design-Builder’s written request to City for clarification about a Project condition.
395
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Attachment 1 – General Conditions
20 74. Request for Proposals or RFP – The request for proposals issued by City for the Project and includes all documents, exhibits, attachments, and addenda thereto.

75. Safety Plan – Design-Builder’s plan for health and safety in implementing the Construction Work, to be developed as part of Phase 1 Services in accordance with the Contract Documents.

76. Samples – Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged.

77. Schedule of Submittals – A schedule, prepared and maintained by DesignBuilder, of required submittals and the time requirements to facilitate scheduled performance of related construction activities.

78. Security Plan – Design-Builder’s plan for security at the Site in implementing the Construction Work, to be developed as part of Phase 1 in accordance with the Contract Documents.

79. Self-Performed Construction Work – Construction Work performed by Design-Builder with its own forces in accordance with the Contract Documents.

80. Separate Contractor – A person, or firm, under separate contract with City performing other work at the Project site which may affect the Work.

81. Shop Drawings – All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Design-Builder and submitted by Design-Builder to illustrate some portion of the Work.

82. Site – Lands or areas indicated in the Contract Documents as being furnished by City upon which the Work is to be performed, including rightsof-way and easements for access thereto, and such other lands furnished by City which are designated for the use of Design-Builder.

83. Stage – A discrete and defined portion of the Project that requires its own GMP and Milestone Date.

84. Stop Payment Notice – A written notice as defined in Civil Code section 8044.

85. Subcontractor Construction Cost – Any and all costs by a Subcontractor with a direct contract with Design-Builder to perform Construction Work.

What constitutes Subcontractor Construction Cost is further defined in the General Conditions.
396
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21 86. Subcontracted Construction Work – Construction Work performed by a Subcontractors, but not Key Subcontractors or Design-Builder, with their own forces in accordance with the Contract Documents.

87. Subcontractor – An individual or entity that has a contract with DesignBuilder for performance of any portion of Work and, where applicable, any lower Tier subcontractors performing Services.

88. Submittal - Written or graphic information and physical samples prepared and supplied by Design-Builder demonstrating various portions of the Work.

89. Supplier – A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with Design-Builder or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.

90. Task Order – An order issued by City that authorizes Design-Builder to proceed with certain Design Work during Phase 1.

91. Technical Specifications – That part of the Construction Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto.

92. Tier – The contractual level of a Subcontractor or supplier or consultant with respect to Design-Builder. For example, a first tier Subcontractor is under subcontract with Design-Builder, a second tier Subcontractor is under subcontract with a first tier Subcontractor, and so forth.

93. Underground Facilities – All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems.

94. Work – The entire design and construction, or the various separately identifiable parts thereof, required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such design and construction, and furnishing, installing, and incorporating all materials and equipment into such design and construction, all as required by the Contract Documents.

95. Work Package – A package of Work for specific scopes of the Project developed by Designer of Record as part of the Construction Documents that are self-performed by Design-Builder or awarded to a Subcontractor. A 397
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Attachment 1 – General Conditions
22 Work Package may be a discrete and defined portion of the Project that contains (or will contain) its own GMP and Contract Time for completion.

96. Work Product – All papers, maps, models, estimates, plans, specifications, calculations, designs, studies, surveys, reports, data, notes, computer files, documents, drawings and other work product developed by Design-Builder pursuant to the Contract Documents, including, but not limited to, the Construction Documents.

1.3 Terminology.

A. The words and terms below are not defined but, when used in the Contract Documents, have the indicated meaning.

1. The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Project site (or some other specified location) ready for use or installation and in usable or operable condition.

2. The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.

3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.

4. Regardless of whether “furnish,” “install,” “perform,” or “provide” is used in connection with services, materials, or equipment, an obligation of Design-Builder is implied.

B. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. 398
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Attachment 1 – General Conditions
23 ARTICLE 2 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE

2.1 Intent of Contract Documents.

A. Complementary. The Contract Documents are complementary; what is required by one is as binding as if required by all. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be designed and constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to City.

B. Completion of Work. Design-Builder shall furnish, unless otherwise provided in the Contract Documents, all materials, implements, machinery, equipment, tools, supplies and labor necessary to the prosecution and completion of the Project. If utilities to equipment or fixtures are not shown but are necessary to operate the equipment or fixtures, the utilities service installation is considered to be part of the Work. The implied Work will conform to the appropriate sections of the Contract Documents. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control Design-Builder in dividing Work among Subcontractors or in establishing the extent of Work to be performed by any trade.

2.2 Reference Standards; Interpretation of Contract Documents.

A. Standards, Specifications, Codes, Laws, and Regulations. Reference to federal specifications, federal standards, state standards, other standards, specifications, manuals, or codes of any technical society, organization, or association, or to Applicable Laws, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Applicable Laws in effect at the time of the Effective Date, and in case of Work during Phase 2, when the Parties executed a GMP Amendment, except as may be otherwise specifically stated in the Contract Documents.

B. Responsibilities. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of City, Design-Builder, or any of their Subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to City, or any of their officers, directors, members, partners, employees, agents, consultants, or Subcontractors, any duty or authority to supervise or direct the performance of Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents.

C. Provisions Required by Law. Each and every provision of law required by law to be inserted in the Contract Documents shall be deemed to be inserted 399
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Attachment 1 – General Conditions
24 herein, and the Contract Documents shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either party the Contract shall be amended in writing to make such insertion or correction.

D. Interpretation of Contract Documents. Unless otherwise stated in the Contract Documents, technical words and abbreviations contained in the Contract Documents are used in accordance with commonly understood design professional and construction industry meanings; nontechnical words and abbreviations are used in accordance with their commonly understood meanings. The Contract Documents may omit modifying words such as “all” and “any,” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. The use of the word “including,” when following any general statement, shall not be construed to limit such statement to specific items or matters set forth immediately following such word or to similar items or matters, whether or not non limiting language (such as “without limitation,” “but not limited to,” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement. Whenever the context so requires, the use of the singular number shall be deemed to include the plural and vice versa. Each gender shall be deemed to include any other gender, and each shall include a corporation, partnership, trust, or other legal entity, whenever the context so requires. The captions and headings of the various subdivisions of the Contract Documents are intended only for reference and convenience and in no way define, limit, or prescribe the scope or intent of the Contract Documents or any subdivision thereof.

2.3 Order of Precedence.

A. Conflicts. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and the provisions of any standard, specification, manual, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference in the Contract Documents); or the provisions of any Applicable Laws (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Applicable Law).

B. Resolving Conflicts. In resolving conflicts among any of the Contract Documents, the order of precedence shall be as follows:

1. Permits from other agencies as may be required by law;

2. Change Orders, most recent first;
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25 3. GMP Amendment, most recent first;

4. Progressive Design-Build Contract;

5. Special Conditions;

6. Construction Documents, as follows:
a. Technical Specifications
b. Drawings, which shall also be interpreted as follows:
(i) Figures govern over scaled dimensions
(ii) Detail drawings govern over general drawings
(iii) Drawings govern over standard drawings

7. Drawings govern over Shop Drawings

8. Phase 1 Scope of Services;

9. General Conditions;

10.RFP and all addenda, attachments and appendices;

11.Design-Builder Certifications from RFP;

12.Design-Builder’s Proposal in response to RFP;

13.To the extent applicable, in the following order:
a. Local agency standards and specifications
b. Standard drawings
c. Reference documents
C. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard, higher quality and most expensive shall always apply.

2.4 Amending and Supplementing Contract Documents.

A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof only by a Change Order.

B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized at no cost to City, by one or more of the following ways:
401
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Attachment 1 – General Conditions
26 1. City’s Representative’s review of a Submittal, Shop Drawing, Sample or substitution request without exception (subject to the provisions of the Contract Documents); or

2. City’s Representative’s issuance of a response to an RFI.

C. However, no review or RFI response will reduce or modify Design-Builder’s obligation to fully satisfy and comply with the requirements of the Contract Documents.

2.5 Examining Contract Documents, Project Site.

A. Confirming Contract Documents. City and Design-Builder acknowledge that the Contract Documents may differ in some respect(s) from the other documents included in the RFP upon which Design-Builder based its Proposal.

Prior to the commencement of design and construction on the Project, the Parties shall confirm, in writing, the final form of the Contract Documents that are to be utilized. Specifically, once approved by City, the Construction Documents become a part of the Contract Documents and define the entire scope of Work, so long as such documents incorporate all minimum requirements of the Background Documents. Design-Builder shall certify that the Construction Documents are in full compliance with the Contract Documents, except as noted.

B. Examining Contract Documents. Before commencing any Work on the Project, Design-Builder shall carefully examine the Contract, the Contract Documents, the Background Documents and other information given to Design-Builder as to Project requirements. Design-Builder shall immediately notify City’s Representative of any perceived or alleged error, inconsistency, ambiguity, or lack of detail or explanation in such documents in writing. Neither DesignBuilder nor any Subcontractor shall take advantage of any apparent error or omission which may be found in the Contract, the Contract Documents, the Background Documents or other information given to Design-Builder. If Design-Builder or its Subcontractors, material or equipment suppliers, or any of their officers, agents, and employees performs, permits, or causes the performance of any Work under the Contract, which it knows or should have known to be in error, inconsistent, or ambiguous, or not sufficiently detailed or explained, Design-Builder shall bear any and all costs arising therefrom including, without limitation, the cost of correction thereof without increase or adjustment to the Contract Price or the Contract Time. In no case shall any Subcontractor proceed with Work if uncertain without Design-Builder’s written direction and/or approval.

C. Contract Document Conformance with Laws. Before commencing any Work on the Project, Design-Builder shall check and review the Contract Documents, including the Construction Documents, for conformance and compliance with all laws, ordinances, codes, rules and regulations of all governmental 402
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Attachment 1 – General Conditions
27 authorities and public utilities affecting the construction and operation of the physical plant of the Project, all quasi-governmental and other regulations affecting the construction and operation of the physical plant of the Project, and other special requirements, if any, designated in the Contract. In the event Design-Builder observes any violation of any law, ordinance, code, rule or regulation, or inconsistency with any such restrictions or special requirements of the Contract, Design-Builder shall immediately notify City’s Representative in writing of the same and shall cause to be corrected any such violation or inconsistency in the manner provided hereunder. Design-Builder shall be solely liable for any such violation, inconsistency or special requirement, if DesignBuilder fails to conduct such review or notification to City.

D. Examination of Project Site. As part of Phase 1 and prior to a GMP Amendment, Design-Builder shall inspect and become familiar with the Site, its physical condition relevant to the obligations of Design-Builder pursuant to the Contract, including surface and subsurface conditions, normal and usual soil conditions, roads, Underground Facilities, topographical conditions and air and water quality conditions and shall, among other things, review the Contract Documents, including, but not limited to, the Background Documents, relative to the Site. Design-Builder shall be familiar with all local and other conditions which may be material to Design-Builder’s performance of the Work (including transportation; seasons and climate; access, availability, disposal, handling and storage of materials and equipment; and availability and quality of labor); Design-Builder shall have received and reviewed all information regarding the Site provided to or developed by it in connection with the Work pursuant to the Contract; and Design-Builder shall have made all other Site investigations that it deems necessary to make a determination as to the suitability of the Site and to submit a Phase 1 Proposal to City in accordance with the Contract Documents. Design-Builder’s Phase 1 Proposal shall serve as a representation by Design-Builder that, based on the foregoing, that the Site constitutes an acceptable and suitable site for the Work and that the Work can be performed on the Site within the Contract Price and in accordance with the Contract Documents, including the schedule requirements of the Contract.

E. Reporting and Resolving Discrepancies. The Contract Documents are intended to be fully cooperative and complementary. Before undertaking each part of the Work, Design-Builder shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Design-Builder shall promptly report in writing to City any conflict, error, ambiguity, or discrepancy which Design-Builder discovers, should have discovered, or has actual knowledge of, and shall obtain a written interpretation or clarification from City before proceeding with any Work affected thereby. If, during the performance of the Work, Design-Builder discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (i) any Applicable Law, (ii) any standard, specification, manual, or code, or (iii) any instruction of any Supplier, Design-Builder shall promptly submit a written RFI to City. Design403 Contract No. _____________
Attachment 1 – General Conditions
28 Builder shall not proceed with the Work affected thereby (except in an emergency) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in the Contract Documents, and any Work performed by Design-Builder before receipt of an amendment or supplement shall be at Design-Builder’s own risk.

F. Responsibility for Review of Contract Documents. Design-Builder shall be solely responsible for any errors, inconsistencies or omissions in the Contract Documents if Design-Builder fails to perform such review and examination or fails to report such errors, inconsistencies or omissions to City in writing.

2.6 Reuse of Documents.

A. Design-Builder and any Subcontractor shall not have or acquire any title to or ownership rights in any of the Construction Documents or other documents (or copies of any thereof) prepared by or bearing the seal of the Designer of Record or its consultants, including electronic media editions; or reuse of any such Construction Documents, other documents, or copies thereof on extensions of the Project or any other project without written consent of City.

The prohibitions of this Article will survive final payment, or termination of the Contract. Nothing herein shall preclude Design-Builder from retaining copies of the Contract Documents for record purposes.

2.7 Ownership and Use of Construction Documents.

A. Ownership and Use. The Construction Documents, and all copies thereof, furnished to, or provided by, Design-Builder are the property of City. DesignBuilder hereby assigns to City all right, title, and interest, including any copyrights, patents, or any other intellectual property rights in all Work Product and all ideas, methods or information specifically developed as Work Product.

Design-Builder will take such steps as are necessary to perfect or protect the ownership interest of City in such Work Product. Upon completion, expiration or termination of the Contract, Design-Builder shall turn over to City all such original Work Product in Design-Builder’s possession or control. City shall have unlimited rights, for the benefit of City, in all Work Product and other Work developed in the performance of the Contract for the Project, including the right to re-use details of the Construction Documents on any other City work at no additional cost to City. Design-Builder, for a period up to five (5) years from the date of completion of the Project, agrees to furnish and to provide access to the originals or copies of all such materials immediately upon the written request of City. Any use or reuse by City of the Construction Documents on any project other than this Project without employing the services of DesignBuilder shall be at City’s own risk with respect to third parties. If City uses or re-uses the Construction Documents on any project other than this Project, it shall remove the Designer of Record’s seal from the Construction Documents and hold harmless Design-Builder, Designer of Record, and their officers, directors, agents and employees from claims arising out of the use or re-use of 404
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Attachment 1 – General Conditions
29 the Construction Documents on such other project. Upon completion, expiration or termination of the Contract, Design-Builder shall turn over to City all such original Work Product in Design-Builder’s possession or control.

B. Design Subcontractors. To the extent Design-Builder does not directly perform Design Work, Design-Builder shall acquire a license meeting the requirements of this Article 2.7 from each of its designers in order to convey the rights to City.

Further, in the event that a subconsultant to Design-Builder, or any other party that is not in privity with City under the Contract, maintains any right to a copyright or other intellectual property right in any portion of the Work Product, Design-Builder shall obtain from that party a grant of a non-exclusive and perpetual license in favor of City as described in Article 2.7(A) above. DesignBuilder shall deliver said license to City prior to the subconsultant or other design entity performing any work on the Project. City’s obligation to compensate Design-Builder shall not commence until the license is delivered.

C. Use of Design. Design professionals responsible for performing Design Work on behalf of Design-Builder shall have sole liability for their design errors and omissions, provided City elects to use their complete and stamped designs with subsequent design-build entities or licensed contractors.

2.8 Confidential Information.

A. No Unauthorized Disclosure. All information gained or Work Product produced by Design-Builder in the performance of the Contract will be considered confidential, unless such information is in the public domain. Design-Builder shall not release or disclose any such information or Work Product to persons or entities other than City without the prior written consent of City, except as otherwise required by law. Design-Builder shall promptly notify City should Design-Builder, or its representatives, be served summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions or other discovery request or court order from any third party regarding the Contract and the Services performed under the Contract.

B. Media. Design-Builder shall not comment publicly to the press or any other media or issue any news release or public relations item of any nature whatsoever regarding the Contract without prior review of the contents thereof by City and receipt of City’s written permission.
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30 ARTICLE 3 -INDEMNIFICATION; INSURANCE; BONDS

3.1 Indemnification.

A. General Indemnification. To the fullest extent permitted by law, Design-Builder shall immediately defend (with counsel of City’s choosing), indemnify and hold harmless City, its officials, officers, employees, agents, and authorized volunteers, and each of them from and against:

1. Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with Phase 1, Phase 2, Work or the Contract, including claims made by Subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of City or its officials, officers, employees, agents, or authorized volunteers (including passive negligence), except such loss or damages caused by the sole negligence or willful misconduct or active negligence of City or its officials, officers, employees, or authorized volunteers.

2. Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting from, or on account of the violation of any Applicable Law, compliance with which is the responsibility of Design-Builder.

3. Any and all losses, expenses, damages (including damages to the Project itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Design-Builder to faithfully perform the Work and all of Design-Builder’s obligations under Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.

4. Design-Builder’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from DesignBuilder’s Work during the course of construction of the improvements or after the Project is complete, as the result of defects or negligence in Design-Builder’s construction of the Work.

B. Design Professional Indemnification. Design-Builder’s obligation to defend, indemnify, and/or hold harmless arises out of Design-Builder’s performance as a “design professional” (as that term is defined under Civil Code Section 406
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31 2782.8), then, and only to the extent required under Civil Code Section 2782.8, which is fully incorporated herein, Design-Builder’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Design-Builder, and, upon DesignBuilder obtaining a final adjudication by a court of competent jurisdiction, Design-Builder’s liability for such claim, including the cost to defend, shall not exceed Design-Builder’s proportionate percentage of fault.

C. Defense. Design-Builder shall immediately defend, at Design-Builder’s own cost, expense and risk, with the counsel of City’s choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City or its officials, officers, employees, agents, or authorized volunteers. Design-Builder shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, officers, employees, agents, or authorized volunteers, in any such suit, action or other legal proceeding. Design-Builder shall reimburse City and its officials, officers, employees, agents, and authorized volunteers for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code section 2782.

D. Survival, Insurance. The provisions of this Article shall survive the termination of the Contract howsoever caused, and no payment, partial payment, or acceptance of occupancy in whole or part of the Work shall waive or release any of the provisions of this Article. Design-Builder’s obligation to indemnify and defend City shall not be restricted to insurance proceeds, if any, received by City and its officials, officers, employees, agents, and authorized volunteers.

3.2 Insurance.

A. Time for Compliance. Design-Builder shall not commence Work under the Contract until it has provided evidence to City that it has secured all insurance required under this Article. Design-Builder shall require and verify that all Subcontractors maintain insurance meeting all the requirements stated herein.

Design-Builder shall not allow any Subcontractor to commence work on any subcontract until it has provided evidence to City that Subcontractor has secured all insurance required under this Article.

B. Minimum Requirements. Design-Builder shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise out of or result from the performance of the Work and Design-Builder’s other obligations under the Contract Documents whether by Design-Builder, its agents, representatives, employees or subcontractors. Design-Builder shall also require all of its Subcontractors to procure and maintain the same insurance for the duration of the Contract and verify the Subcontractor’s compliance. Design-Builder’s and 407
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32 Subcontractor’s insurance shall meet at least the minimum levels of coverage set forth in this Article:

1. Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto) or if Design-Builder has no owned autos, non-owned, leased or hired autos Code 8 (hired) and Code 9 (nonowned); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance; (4) Installation Floater/Builder’s Risk: “All Risk All Perils” form; and (5) Professional Liability/Errors and Omissions.

The policies shall not contain any exclusion contrary to the Contract, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability or (2) cross liability for claims or suits by one insured against another.

2. Minimum Limits of Insurance. Design-Builder shall maintain limits no less than:
a. For Commercial General Liability, Design-Builder shall have limits of at least the amount that corresponds to the Contract Price in the following table:

Contract Price Amount of Liability Insurance
(per occurrence)
Up to $2 million $2 million
$2 million - $5 million $3 million
$5 million - $10 million $5 million
$10 million - $20 million $10 million
Over $20 million $15 million
If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 25 03, either the general aggregate limit shall apply separately to the Project or the general aggregate limit shall be twice the required occurrence limit. Should any of the Work involve aircraft (fixed wing or helicopter) owned or operated by Design-Builder, liability insurance with limits of not less than $5,000,000 per occurrence for bodily injury and property damage is required. Should any of the Work involve watercraft owned or operated by Design-Builder, liability insurance with limits of not less than $5,000,000 per occurrence for bodily injury and property damage is required.
b. Automobile Liability: $1 million per accident for bodily injury and property damage.
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33 c. Workers’ Compensation and Employer’s Liability:
(i) Workers’ Compensation: statutory limits.
(ii) Employer’s Liability limits of $1 million per accident for bodily injury or disease.
(iii) Should any of the Work be upon or contiguous to navigable bodies of water, Design-Builder shall carry insurance covering its employees for benefits available under the Federal
Longshoremen's and Harbor Worker's Act to the extent required by law;
d. Excess/Umbrella Liability Policy may be provided to insure the total limits required for Commercial General Liability and Automobile Liability and must apply to all primary coverage afforded, including but not limited to general liability, owned and non-owned automobiles, leased and hired cars.
e. Professional Liability/Errors and Omissions: $2,000,000 per claim.

3. Notices; Cancellation or Reduction of Coverage. At least fifteen (15) Days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with City. If such coverage is cancelled or materially reduced, DesignBuilder shall, within ten (10) Days after receipt of written notice of such cancellation or reduction of coverage, file with City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

In the event any policy of insurance required under the Contract 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 Design-Builder or City may withhold amounts sufficient to pay premium from Design-Builder payments. In the alternative, City may suspend or terminate the Contract.

C. Insurance Endorsements. The insurance policies shall contain the following provisions, or Design-Builder shall provide endorsements on forms approved by City to add the following provisions to the insurance policies:

1. General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37 (including completed operations), or endorsements providing the exact same coverage, City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be covered as additional insureds with respect to the Work or ongoing and completed operations performed by or on behalf 409
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34 of Design-Builder, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions, or if excess, shall stand in an unbroken chain of coverage excess of Design-Builder’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of City, before City’s own primary insurance or selfinsurance shall be called upon to protect it as a named insured. Any insurance or self-insurance maintained by City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be excess of Design-Builder’s insurance and shall not be called upon to contribute with it in any way.

2. Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by DesignBuilder or for which Design-Builder is responsible; and (2) the insurance coverage shall be primary insurance as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions, or if excess, shall stand in an unbroken chain of coverage excess of Design-Builder’s scheduled underlying coverage. Any insurance or self-insurance maintained by City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be excess of Design-Builder’s insurance and shall not be called upon to contribute with it in any way.

3. Workers’ Compensation and Employer’s Liability Coverage. The insurer shall agree, using WC 00 03 13 or the exact equivalent, to waive all rights of subrogation against City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions for losses paid under the terms of the insurance policy.

4. Professional Liability/Errors and Omissions. Professional Liability Insurance insuring the Design-Builder, Designer of Record, their officers, directors, stockholders, employees, agents, or partner, and all other persons for whose acts the Design-Builder or Designer of Record may be liable, against any and all liabilities arising out of or in connection with the negligent acts, errors or omissions of any of the foregoing in connection with the carrying out of their professional responsibilities 410
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35 described in the Contract. Professional Liability Insurance shall remain in full force and effect and shall be certified to City by the insurer, for a period of five (5) years after the completion of all Design-Builder’s services hereunder and City’s acceptance of the Project. All Subcontractors performing professional services shall have professional liability insurance with the same limits (additional requirements for Professional Liability/Errors and Omissions Insurance written on a “claims made” basis are set forth below).

5. All Coverages. Each insurance policy required by the Contract shall be endorsed to include the following provisions:
a. coverage shall not be suspended, voided, reduced or canceled except after thirty (30) Days (10 Days for nonpayment of premium) prior written notice by mail has been given to City and all additional insureds.
b. any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and any other additional insureds.
c. standard separation of insureds provisions.
d. no special limitations on the scope of protection afforded to City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions.
e. waiver of any right of subrogation of the insurer against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Design-Builder or others providing insurance in compliance with these specifications to waive their right of recovery prior to a loss. By signing this agreement, Design-Builder hereby waives its own right of recovery against City or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its Subcontractors.

D. Builder’s Risk [“All Risk”]

1. It is Design-Builder’s responsibility to maintain or cause to be maintained Builder’s Risk [“All Risk”] extended coverage insurance on all work, material, equipment, appliances, tools, and structures that are or will become part of the Work and subject to loss or damage by fire, and vandalism and malicious mischief, in an amount to cover 100% of the replacement cost. City accepts no responsibility for the Work until the Work is formally accepted by City. Design-Builder shall provide a certificate evidencing this coverage before commencing performance of the Work.
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36 2. The named insureds shall be Design-Builder, all Subcontractors of any Tier (excluding those solely responsible for Design Work), suppliers, and City, its elected officials, officers, employees, agents and authorized volunteers, as their interests may appear. Design-Builder shall not be required to maintain property insurance for any portion of the Work following acceptance by City.

3. Policy shall be provided for replacement value on an “all risk” basis.

There shall be no coinsurance penalty provision in any such policy.

Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub-limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to City to ensure adequacy and sublimit.

4. In addition, the policy shall meet the following requirements:
a. Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract. b. Coverage shall include all materials stored on site and in transit. c. Coverage shall include Design-Builder’s tools and equipment. d. Insurance shall include boilers, machinery and material hoist coverage.
e. City shall be named Loss Payee.

E. Pollution Liability Insurance. Pollution Liability Insurance is required should any of the Project involve pollutants. Liability coverage shall include coverage for the environmental risk associated with the project and expenses related to such, including bodily injury, property damage, on and off-site clean-up, transporting, carrying, or storing pollutants, coverage for non-owned disposal site in an amount not less than that set forth in the Special Conditions.

Pollutants include, but are not limited to, asbestos, mold, microbial matter, solid, liquid, gaseous or thermal irritants or contaminants, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.
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37 F. Receipt and Application of Insurance Proceeds. Any insured loss under the policies of insurance required herein will be adjusted with City and made payable to City as fiduciary for the loss payees, as their interests may appear, subject to the requirements of any applicable mortgage clause and of the provisions herein. City shall deposit in a separate account any money received and shall distribute it in accordance with such agreement as the parties in interest may reach. If no other special agreement is reached, the damaged Work shall be repaired or replaced, the moneys so received applied on account thereof, and the Project and the cost thereof covered by an appropriate Change Order. City as fiduciary shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing to City’s exercise of this power within fifteen (15) Days after the occurrence of loss. If such objection be made, City as fiduciary shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If no such agreement among the parties in interest is reached, City as fiduciary shall adjust and settle the loss with the insurers and, if required in writing by any party in interest, City as fiduciary shall give bond for the proper performance of such duties.

G. Partial Utilization, Acknowledgment of Property Insurer. If City finds it necessary to occupy or use a portion or portions of the Project prior to Completion of all the Work, no such use or occupancy shall commence before the insurers providing the property insurance have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby.

The insurers providing property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy.

H. Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. Design-Builder shall guarantee that, at the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions; or (2) Design-Builder shall procure a bond guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.

I. Claims Made Policies. Claims-made policies are not acceptable other than for Professional Liability. In addition to the requirements above, for any claims made policy: The Retroactive Date must be shown and must be before the date of the Contract or the beginning of contract work; Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after City’s acceptance of the Work; and If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, Design-Builder must purchase “extended reporting” coverage for a minimum of five (5) years after City’s acceptance of the Work.
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38 J. Subcontractor Insurance Requirements. Design-Builder shall not allow any Subcontractors to commence work on any subcontract relating to the Work until Design-Builder has verified that all Subcontractors maintain insurance meeting all requirements under this Section and has provided evidence to City of such insurance. For Commercial General Liability coverage, Subcontractors shall provide coverage naming City, its officials, officers, employees, agents, and volunteers with a format at least as broad as CG 20 38 04 13. If requested by Design-Builder, City may approve different scopes or minimum limits of insurance for Subcontractors. Design-Builder shall confirm that City shall be named as additional insureds on all Subcontractors' Commercial General Liability Insurance and Commercial Automobile Insurance policies. The Design-Builder shall require all subcontractors to maintain insurance coverage for the types specified above, including but not limited to Builder’s Risk, Pollution Liability, General Liability, Automobile Liability, Workers’ Compensation, and Professional Liability, at the same or greater limits as required for the Design-Builder. The Design-Builder shall ensure that subcontractors maintain such coverage throughout the term of the Project. The policies shall not contain any exclusion contrary to the Contract, including but not limited to endorsements or provisions limiting coverage for:
• Contractual liability; or
• Cross liability for claims or suits by one insured against another.

K. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VIII and are licensed to do business in California. The insurer must be satisfactory to City.

L. Verification of Coverage. Design-Builder shall furnish City with original certificates of insurance and endorsements evidencing coverage required by the Contract. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf.

All certificates and endorsements must be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

M. Reservation of Rights. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

3.3 Performance Bond and Payment Bond.

A. Generally. Prior to Design-Builder’s commencement of Construction Work, shall submit Performance Bonds and Payment Bonds on the forms provided with the Contract Documents, duly executed by a responsible corporate surety admitted to transact surety business in the State of California, as defined in Code of Civil Procedure section 995.120, and listed in the United States Department of the Treasury circular entitled "Companies Holding Certificates 414
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39 of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies," authorized to do business in the State of California and acceptable to City conditioned upon the faithful performance by DesignBuilder of all requirements of the Contract Documents. The obligations of the Performance Bond surety shall continue so long as any obligation of DesignBuilder remains. Nothing herein shall limit City’s rights or Design-Builder’s or surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

B. Amount of Bonds. The Performance Bond and Payment Bond shall be in a sum no less than one hundred percent (100%) of the Contract Price. No payment will be made to Design-Builder until the bonds have been approved by City.

The amount of the Performance Bond and the Payment Bond shall be increased by Design-Builder to reflect the adjustment to the Contract Price.

Design-Builder shall, upon request of City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to City. The bonds shall further provide that no change or alteration of the Contract (including, without limitation, an increase in the Phase 2 Price), extensions of time, or modifications of the time, terms, or conditions of payment to Design-Builder will release the surety. If Design-Builder fails to furnish any required bond, City may terminate the Contract for cause.

C. Monitoring of Sureties. Design-Builder shall be responsible throughout the Project for monitoring the financial condition of any surety issuing bonds under the Contract and for making inquiries no less often than annually to confirm that each such surety complies with the qualification requirements specified in this Article. In the event any surety is declared bankrupt or becomes insolvent or has the rights to do business in the state terminated, Design-Builder shall promptly notify City of such event and shall promptly take steps to ensure continued compliance with this Article by furnishing or arranging for the furnishing of a substitute or additional bond of a surety whose qualifications satisfy all above requirements.

D. Insufficient Bonds. Should, in City’s sole opinion, any bond becomes insufficient, or surety found to be unsatisfactory, Design-Builder shall renew or replace the effected bond within 10 Days of receiving notice from City. In the event the surety or Design-Builder intends to reduce or cancel any required bonds, at least thirty (30) Days prior written notice shall be given to City, and Design-Builder 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 the Contract until any replacement bonds required by this Article are accepted by City.
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40 ARTICLE 4 -CITY RESPONSIBILITIES

4.1 Availability of Site.

A. City shall furnish the Project site. City shall notify Design-Builder of any encumbrances or restrictions not of general application but specifically related to use of the Project site with which Design-Builder must comply in performing the Work. City will obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. DesignBuilder shall provide for all additional land and access thereto that may be required for temporary construction facilities or storage of materials and equipment at no additional cost to City.

4.2 Administration of the Contract by City.

A. Generally. City’s Representative shall have the right to review Design-Builder’s Work at such intervals as deemed appropriate by City’s Representative. No actions taken during such review or site visit by City’s Representative shall relieve Design-Builder of any of its obligations of single point responsibility for the design and construction of this Project. City’s Representative will not have control over, will not be in charge of, and will not be responsible for design or construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work on the Project, these are solely Design-Builder’s responsibility.

B. Communication. Except as otherwise provided in the Contract Documents or when direct communications have been specifically authorized, City and Design-Builder shall communicate through City’s Representative.

Communications by Design-Builder with City’s consultants and City’s Representative’s consultants shall be through City’s Representative.

Communications by City and City’s Representative with Subcontractors will be through Design-Builder. Communications by Design-Builder and Subcontractors with Separate Contractors shall be through City’s Representative. Design-Builder shall not rely on oral or other non-written communications.

C. Authority. City’s Representative will have the authority to reject Work on the Project, or any portion thereof, which does not conform to the Contract Documents. City’s Representative will have the authority to stop Work on the Project, or any portion thereof. Whenever City’s Representative considers it necessary, or advisable, for implementation of the intent of the Contract Documents, City’s Representative will have the authority to require additional inspection or testing of the Work on the Project in accordance with the Contract Documents, whether or not such Work is fabricated, installed, or completed.

City’s Representative will have the authority to conduct inspections in connection with beneficial occupancy and to determine the dates of Project completion; and will receive for review and approval any records, written 416
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41 warranties, and related documents required by the Contract Documents and assembled by Design-Builder. However, no authority of City’s Representative conferred by the Contract Documents nor any decision made in good faith either to exercise, or to not exercise such authority, will give rise to a duty or responsibility of City or City’s Representative to Design-Builder, or any person or entity claiming under, or through, Design-Builder.

D. Interpretation. City’s Representative will be, in the first instance, the interpreter of the requirements of the Contract Documents and the judge of performance thereunder by Design-Builder. Should Design-Builder discover any conflicts, omissions, or errors in the Construction Documents or the Contract Documents; have any questions about the interpretation or clarification of the Contract Documents; question whether Work is within the scope of the Contract Documents; then, before proceeding with the Work affected, DesignBuilder shall notify City’s Representative in writing and request interpretation, or clarification. City’s Representative’s response to questions and requests for interpretations, clarifications, instructions, or decisions will be made with reasonable promptness. Should Design-Builder proceed with the Work affected before receipt of a response from City’s Representative, any portion of the Work on the Project which is not done in accordance with City’s Representative’s interpretations, clarifications, instructions, or decisions shall be removed or replaced and Design-Builder shall be responsible for all resultant losses.
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42 ARTICLE 5 - DESIGN-BUILDER’S RESPONSIBILITIES

5.1 General Responsibilities.

A. Generally. Design-Builder agrees that it has single point responsibility for the design and construction of this Project and agrees to utilize the highest standard of excellent design, engineering and construction practices. Unless otherwise provided in the Contract Documents, Design-Builder shall provide and pay for all professional design/engineering services, services, labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work on the Project, whether temporary or permanent and whether or not incorporated or to be incorporated in Work on the Project. Design-Builder shall supervise, coordinate, and direct all Work on the Project using Design-Builder’s best skill and attention and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Design-Builder shall be solely responsible for, and have control over, the entire design effort, construction means, methods, techniques, sequences, procedures, and the coordination of all portions of Work on the Project. Design-Builder shall be responsible to City for acts and omissions of Design-Builder, its agents, employees, and Subcontractors, and their respective agents and employees. Design-Builder has the duty to act in City’s best interests at all times throughout the course and performance of the Contract. If Design-Builder performs any design and/or construction activity which it knows, or should know, involves an error, inconsistency, or omission, without notifying and obtaining the written consent of City’s Representative, Design-Builder shall be responsible for the resultant losses, including, without limitation, the costs of correcting Defective Work B. Applicable Laws. Design-Builder shall give all notices required by and shall comply with all Applicable Laws applicable to the performance of the Work.

Except where otherwise expressly required by Applicable Laws, neither City nor the City’s Representative shall be responsible for monitoring DesignBuilder’s compliance with any Applicable Laws. If Design-Builder performs any Work knowing or having reason to know that it is contrary to Applicable Laws, Design-Builder shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work.

C. Digital Accessibility. Design-Builder shall ensure that all applicable electronic documents and other digital deliverables prepared by Design-Builder, its Subcontractors, or consultants under this Contract that are intended for City use, distribution, publication, or posting to a City website or mobile application, or other publicly available digital platform, comply with all applicable federal and State of California digital accessibility requirements. 418
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43 Without limiting the foregoing, applicable electronic documents and digital deliverables shall comply with Title II of the Americans with Disabilities Act (“ADA”), its implementing regulations set forth in 28 C.F.R. Part 35, including the requirements for accessibility of web content and mobile applications, and the Web Content Accessibility Guidelines (“WCAG”) 2.1, Level AA, or any successor standard required by Applicable Laws.

Design-Builder acknowledges that the federal accessibility requirements applicable to state and local government web content and mobile applications establish an applicable compliance date of April 26, 2027, for public entities with a total population of 50,000 or more, which includes the City of Palm Desert. Design-Builder shall prepare all applicable electronic documents and digital deliverables in accordance with these requirements, including deliverables prepared or submitted prior to the applicable compliance date.

Design-Builder shall, at no additional cost to City, promptly correct or remediate any electronic documents or digital deliverable determined by City to not comply with the requirements of this Section.

D. Governmental Approvals. City will not be liable for Design-Builder’s failure to obtain, maintain, and comply with all Governmental Approvals. All fines and fees assessed by Governmental Bodies as a result of said failures shall be Design-Builder’s responsibility. In the event City is assessed with any fines or fees related to Design-Builder’s failure to comply with the requirements set forth in this Article, the amount of fees or fines will be deducted from the Contract Price.

E. Standard of Care. Design-Builder’s performance shall be consistent with the standards set forth in the Contract and the General Conditions. Design-Builder represents that it is fully experienced and properly qualified to perform the class of Work provided for in the Contract and that it is properly licensed, equipped, organized, and financed to perform Work on the Project. Design-Builder warrants to City that all Work shall be performed in accordance with the highest professional standards and degree of care applicable to those design and construction professionals who specialize in designing and providing services for projects of the type, scope, quality and complexity of the Project utilizing the progressive design-build contracting mode. Design-Builder shall perform the Services using its best professional skill and judgment, acting with due care and in accordance with professional standards of care, the terms hereof and applicable law, code, rule or regulation. Design-Builder warrants that the Services and Work will be of the highest quality and free from defects and that all Work will conform with the requirements of the Contract Documents. DesignBuilder shall be solely responsible for the means, methods, techniques, sequences, and procedures of design and construction of the Project. DesignBuilder shall supervise, inspect, and direct the Services and Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Project in accordance with the 419
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44 Contract Documents. Design-Builder shall perform, at its own cost and expense and without reimbursement from City, any services necessary to correct errors or omissions which are caused by Design-Builder’s failure to comply with the standard of care provided for herein.

F. Best Efforts. Design-Builder recognizes the relations of trust and confidence that are established by the Contract, and covenants with City to furnish DesignBuilder’s best skill and judgment, and to actively cooperate and assist in furthering the best interests of City in all matters pertaining to the Project.

Design-Builder agrees to furnish efficient business administration and capable supervision, and to use every effort to keep upon the work an adequate supply of workmen and materials in order to secure its execution in the most expeditious and economical manner consistent with City’s best interests.

Design-Builder’s employees assigned to the Project shall at all times be reasonably satisfactory to City.

G. Independent Contractor. Design-Builder shall be responsible to City for acts and omissions of Design-Builder, their employees, Subcontractors, material and equipment suppliers, and their agents, employees, invitees, and other persons performing portions of Work on the Project under direct or indirect contract with Design-Builder or any of its Subcontractors. Design-Builder in the performance of the Contract shall be and act as an independent contractor.

Design-Builder understands and agrees that it and all of its employees shall not be considered officers, employees, agents, partner, or joint venture of City, and are not entitled to benefits of any kind or nature normally provided employees of City or to which City's employees are normally entitled, including, but not limited to, State Unemployment Compensation or Worker's Compensation. Design-Builder shall assume full responsibility for payment of all federal, state and local taxes or contributions, including unemployment insurance, social security and income taxes with respect to Design-Builder’s employees. In the performance of the Services, Design-Builder is an independent contractor or business entity, with the sole authority for controlling and directing the performance of the details of Design-Builder’s Services, City being interested only in the results obtained.

H. Progress Meetings. Design-Builder shall schedule and hold regular progress meetings at least weekly and at other times as requested by City’s Representative or as required by progress of the Work. Design-Builder and City shall attend each meeting. Design-Builder may at its discretion request attendance by representatives of its Subcontractors, Suppliers, or manufacturers. City’s Representative will preside at the progress meetings and will arrange for keeping and distributing the minutes. The purpose of the meetings is to review the progress of the Work, maintain coordination of efforts, discuss changes in scheduling, and resolve other issues which may develop.

During each meeting, Design-Builder shall present any issues which may impact its progress with a view to resolve these issues expeditiously. 420
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45 I. Permits and Licenses. City will apply and pay for the review of necessary encroachment permits for Work within the public rights-of-way. All other necessary permits and licenses necessary for prosecution of the Work shall be secured and paid for by Design-Builder, including, but not limited to, permits, licenses and fees required by a Governmental Body, unless otherwise expressly provided by the Contract Documents. Design-Builder shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the Contract Documents or by Governmental Bodies, except for such off-site inspections delineated as City’s responsibility pursuant to the Contract Documents. Before completion of the Project, DesignBuilder shall submit all licenses, permits, certificates of inspection and required approvals to City.

J. Taxes. Design-Builder shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the Applicable Laws of the place of the Project which are applicable during the performance of the Work. In accordance with Revenue and Taxation Code section 107.6, the Contract Documents may create a possessory interest subject to personal property taxation for which Design-Builder will be responsible. Without limiting any of the foregoing, in the event City seeks to obtain any available exemption under Applicable Law from sales, consumer, use, and similar taxes for the Project, Design-Builder will cooperate with City in seeking such an exemption, and will utilize (and cause its Subcontractors to utilize) any such exemption to the extent available in performance of the Work.

K. Patent Fees and Royalties. Design-Builder shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. To the fullest extent permitted by Applicable Laws, Design-Builder shall indemnify, defend, and hold harmless City and City’s Representative, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents or specified in the Contract Documents and identified as being subject to payment of any license fee or royalty to others required by patent rights or copyrights.

5.2 Design Work.

A. Generally. Design-Builder is responsible for the design and construction of the Project and shall use the highest design and engineering standards of care 421
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46 applicable to projects, buildings or work of similar size, complexity, quality and scope in performing Work on the Project. Design-Builder shall be solely responsible for any and all design errors including, but without limitation, errors, inconsistencies or omissions in the Construction Documents. Design-Builder shall take field measurements, verify field conditions, and carefully compare with the Contract Documents such field measurements, conditions, and other information known to Design-Builder before commencing Work on the Project.

Errors, inconsistencies, or omissions discovered at any time shall be promptly reported in writing to City’s Representative.

B. Construction Documents.

1. Generally. Design-Builder shall furnish design, architectural and engineering services for the preparation of Construction Documents necessary to complete the Project in accordance with the requirements of the Contract Documents. The Designer of Record shall design the Project and prepare the Construction Documents. The Construction Documents shall provide information customarily necessary in documents for projects of similar size, complexity, and quality. The Construction Documents shall include all information required to complete the construction of the Project, other than such details customarily developed by others during construction. Design-Builder is required to deliver to City, if requested, any and all Construction Documents and Work Product including, but not limited to, calculations, preliminary drawings, construction drawings, shop drawings, electronic media data, tenant improvement documents, sketches, illustrations, specifications, descriptions, models, mock ups, and other information developed, prepared, furnished, or delivered in the prosecution of the Design Work.

2. Submittal and Review of Construction Documents. Design-Builder shall submit completed packages of the Construction Documents for review by City at the times indicated on the Phase 1 CPM Schedule and as defined in the Phase 1 Scope of Services. Meetings between Design-Builder and City to review the Construction Document packages shall be scheduled at least every two weeks, or as otherwise agreed by the Parties, and held so as not to delay Work on the Project. Design-Builder will conduct these design meetings with City in accordance with the schedule approved by City.

Design-Builder will be responsible for preparing and circulating for the Parties review and design meeting minutes from all such meetings. City’s review of the Construction Documents shall be conducted in accordance with the approved Phase 1 CPM Schedule and with procedures set forth in the Contract Documents. Such review shall not relieve Design-Builder from its responsibilities under the Contract. Such review shall not be deemed an approval or waiver by City of any deviation from, or of Design-Builder’s failure to comply with, any provision or requirement of the Contract Documents, unless such deviation or failure has been identified as such in writing in the document submitted by Design-Builder and approved by City. 422
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47 The production and review of Construction Documents may be a continuing process with portions thereof completed at different times. The Phase 1 CPM Schedule shall indicate the times for City to review the completion of each such portion of the Construction Documents and a reasonable time for review of same.

C. Field Engineering. Design-Builder shall retain and pay expenses of a civil engineer or land surveyor to establish on the Project site the required reference points and benchmarks, establish building lines and elevations, check for building framing, plumbness, and establish on building frame the required basic grid lines. The engineer or land surveyor shall be properly licensed in the State of California. Design-Builder shall locate and protect control points prior to starting Work on the Project site and preserve permanent reference points during construction and shall require the engineer or surveyor to replace control points which become lost or destroyed.

D. Information and Documents. City will make the Background Documents related to the Project available to the Design-Builder, including but not limited to any preliminary surveys, geotechnical information, and other information that describe the Site. The Background Documents are provided for information only and will not be included as part of the Contract Documents. Design-Builder shall perform its own independent site investigations in accordance with the requirements of the Contract Documents. Design-Builder’s reliance on any reference documents shall not be a basis for increases to the Contract Price or Contract Time, nor shall it result in any Claims against City.

E. Geotechnical and Survey. City may provide a geotechnical report to DesignBuilder that shall not be considered a part of the Contract Documents and shall be informational only and may not be relied upon by Design-Builder to form its basis of design. Design-Builder shall be responsible for obtaining its own geotechnical report which includes supporting data, findings and recommendations; and also, with a legal description and a project survey, as necessary, which shall become a part of the Contract Documents. The Design Work shall be consistent with both the findings and recommendations of Design-Builder’s geotechnical report and legal description and Project survey, or such other geotechnical recommendations obtained by Design-Builder at its sole cost and expense. Design-Builder shall verify the location and depth (elevation) of all existing utilities and services before performing any excavation work. Any additional tests, borings, etc. necessary to support the Construction Documents shall be the responsibility of Design-Builder.

5.3 Staffing of Project.

A. Generally. Design-Builder and each Subcontractor shall: furnish a competent and adequate staff as necessary for the proper administration, coordination, supervision, and superintendence of its portion of the Work on the Project; organize the procurement of all materials and equipment so that the materials 423
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48 and equipment will be available at the time they are needed for the Work; and keep an adequate force of skilled and fit workers on the job to complete all Work on the Project in accordance with all requirements of the Contract.

B. Employment of Workers. Design-Builder shall comply 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 Subcontractors and consultants to comply with the same. Each person executing the Contract on behalf of Design-Builder verifies that he or she is a duly authorized officer of Design-Builder and that any of the following shall be grounds for City to terminate the Contract for cause: (1) failure of DesignBuilder or its Subcontractors or consultants to meet any of the requirements provided for in this Article; (2) any misrepresentation or material omission concerning compliance with such requirements; or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements.

C. Competent Workers. Design-Builder shall at all times enforce strict discipline and good order among its employees. Design-Builder shall not employ on the Project any unfit person or anyone not skilled in the services assigned to him or her. Any person in the employment of Design-Builder whom City may deem incompetent or unfit, at its sole discretion, shall be dismissed from performing services and shall not be employed on the Project.

D. Supervision. Design-Builder shall continuously keep at the Project site, a competent and experienced full-time Project superintendent, acceptable to City. Superintendent must be able to proficiently speak, read and write in English and shall have the authority to make decisions on behalf of DesignBuilder. Design-Builder shall continuously provide efficient supervision of the Project.

5.4 Subcontractors.

A. Subcontracting Generally.

1. Licenses. Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work consistent with the Contract Documents. All Subcontractors performing Construction Work shall possess a valid contractor license as required by Applicable Law for the classification required for the work to be performed by Subcontractors at the commencement of the Construction Work and throughout the duration of the Work.

2. Responsibility for Subcontractors. All subcontracted Work shall be performed under written subcontracts. Design-Builder agrees to bind every Subcontractor to the terms of the Contract Documents as far as such terms 424
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49 are applicable to Subcontractor’s portion of the Services. Design-Builder shall be as fully responsible to City for the acts and omissions of its Subcontractors and of persons either directly or indirectly employed by its Subcontractors, as Design-Builder is for acts and omissions of persons directly employed by Design-Builder. Nothing contained in these Contract Documents shall create any contractual relationship between any Subcontractor and City. City reserves the right to accept all Subcontractors.

City’s acceptance of any Subcontractor under the Contract shall not in any way relieve Design-Builder of its obligations in the Contract Documents.

Subcontracts entered into by City for the performance of the Work shall neither supersede nor abrogate any of the terms or provisions of the Contract.

3. Claims. Design-Builder shall be responsible for settling and resolving all claims with Subcontractors. Design-Builder shall provide to City, promptly following the receipt thereof, copies of any notice of default, breach or noncompliance received under or in connection with any subcontract that may have a material and adverse effect on performance by Design-Builder of its obligations under the Contract Documents.

4. Payment. Design-Builder shall pay or cause to be paid to all Subcontractors all amounts due in accordance with their respective subcontracts and the requirements of this Article and Applicable Law. No Subcontractor shall have any right or claim against City for labor, services, materials or equipment furnished for the Project. Design-Builder acknowledges that its indemnity obligations under the Contract shall extend to all claims for payment or damages by any Subcontractor who furnishes or claims to have furnished any labor, services, materials or equipment in connection with the Project. Design-Builder shall, at City’s request, furnish satisfactory evidence that all obligations of the nature designated above in this Article have been paid, discharged or waived. If Design-Builder fails to do so City may, after having notified Design-Builder, withhold from Design-Builder’s unpaid compensation a sum of money deemed reasonably sufficient to pay any and all such lawful claims until satisfactory evidence is furnished that all liabilities have been fully discharged whereupon payment to the DesignBuilder will be resumed in accordance with the terms of the Contract, but in no event shall the provisions of this sentence be construed to impose any obligations upon City to either Design-Builder, the surety or any third party.

5. Assignment. Each subcontract agreement shall include a provision that allows for an irrevocable assignment of the subcontract to City, solely at City’s election and without cost or penalty. The provision shall indicate that City’s acceptance of the assignment shall not affect any obligations of the Subcontractor’s performance or payment bond surety. City may accept the assignment by delivering written notice to Design-Builder and Subcontractor.
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50 B. Subcontracting Design Work.

1. Identified in Proposal. Design-Builder shall perform the Design Work with resources available within its own organization and no portion of the Design Work shall be subcontracted without written authorization by City, except that which is expressly identified in Design-Builder’s Proposal.

2. City Approval. Design-Builder may request to have a design professional perform Design Work that is not expressly identified in the Proposal by requesting written approval from City. The request shall include, among other things, the scope of Design Work performed by the design professional and the design professionals’ qualifications. City may accept the request or may reject any proposed Subcontractor as unsuitable, unqualified, not responsible, having a conflict of interest, or that City otherwise object to performing Design Work on the Project.

C. Substitution of Subcontractors.

1. Subcontractors Performing Design Work. Design-Builder shall not substitute a Subcontractor performing Design Work except with City’s express written authorization.

2. Subcontractors Performing Construction Work. Subcontractors performing Construction Work shall be afforded the protections of the Subletting and Subcontracting Fair Practices Act (Public Contract Code sections 4100 et seq.). Design-Builder shall not substitute Subcontractors that are awarded a contract pursuant to the above process, except in accordance with the Subletting and Subcontracting Fair Practices Act. Design-Builder may substitute a Subcontractor without following the Subletting and Subcontracting Fair Practices Act that Design-Builder procures through a noncompetitive procurement. Design-Builder shall not substitute in a Subcontractor for Self-Performed Construction Work except with City’s express written authorization.

3. All Subcontractor Substitution. City will not grant an increase to a GMP or grant an extension of Contract Time in the event of a substitution of any Subcontractor.

D. Dismissal of Subcontractors.

1. Subcontractor. City reserves the right to order Design-Builder to dismiss any Subcontractor and to terminate any subcontract if, in City's opinion, the Subcontractor fails to comply with the requirements of the Contract Documents insofar as the same may be applicable to the Subcontractor’s Work. Nothing herein contained shall create any contractual relation between any Subcontractor and City or relieve Design-Builder of any 426
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51 liability or obligation hereunder for, among other things, its Subcontractor’s Work.

2. Staff Member of Subcontractor. If at any time during the Project, City reasonably determines that the performance of any member of Subcontractor’s staff performing Work is unsatisfactory, City may require Design-Builder to remove such staff member immediately and replace the staff member at no cost or penalty to City.

3. No Increase in Price, Time. The City will not grant an increase to a GMP or grant an extension of the Contract Time in the event of a dismissal of any Subcontractor.

5.5 Safety Requirements.

A. General Safety Requirements. Design-Builder shall be solely responsible for all safety precautions and programs in connection with the Project. DesignBuilder shall comply with all Applicable Laws relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Design-Builder shall take all reasonable precautions for the health and safety of, and shall provide all reasonable protection to prevent damage, injury or loss to all employees on the Site and all other persons who may be affected thereby. Design-Builder shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Applicable Laws. Design-Builder shall notify owners of adjacent property and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. Design-Builder shall maintain emergency first aid treatment for its employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4. Design-Builder shall ensure the availability of emergency medical services for its employees in accordance with California Code of Regulations, Title 8, Section 1512.

B. Safety Manager. Design-Builder assumes responsibility for implementing and monitoring all health and safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing Work, designate an individual with the qualifications and experience necessary to supervise the implementation and monitoring of all health and safety precautions and programs related to the Work. The health and safety manager shall be an individual stationed full time at the Site and who shall have no other responsibilities with respect to the Project other than supervising the implementation and monitoring of all health and safety precautions and programs related to the Work.
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52 C. Safety Inspections and Meetings. Design-Builder is solely responsible to inspect, survey, and assess the Site and identify the existence of all permitrequired confined spaces and non-permit confined spaces and comply with applicable OSHA regulations and standards. Design-Builder’s Site assessment shall begin upon the initiation of Work and continue throughout the duration of the Project. The health and safety manager shall make routine daily inspections of the Site and shall hold weekly health and safety meetings with Design-Builder’s personnel, Subcontractors and others, as applicable.

D. Safety Plan. Design-Builder shall submit a Safety Plan that includes, among other things, an illness and injury prevention program and a Site-specific safety program to City prior to beginning Work. The Safety Plan shall include, but not be limited to, worker safety, electrical safety, lock-out/tag-out, arc flash safety personal protection equipment while working in vicinity of energized electrical equipment, hazard communication, fire protection plan, emergency access plan, health and safety inspections of mechanized equipment, machinery, hoists, cranes, scaffolding, excavations, shoring, and related items. DesignBuilder shall maintain a confined space program that meets or exceeds Applicable Law. Design-Builder needs to make themselves aware of City’s safety policies and procedures and shall meet or exceed all City standards in areas where City must enter to perform inspections.

E. Safety Compliance Requirements. Design-Builder shall, and shall cause all Subcontractors to, comply with: (1) all Applicable Law relating to safety; (2) the Safety Plan; and (3) any City health and safety requirements. Design-Builder shall immediately report (no later than within 12 hours after its occurrence), in writing, any health and safety-related injury, loss, damage, accident or near miss arising from the Work to the City’s Representative and, to the extent mandated by Applicable Law, to any Governmental Body having jurisdiction over health and safety-related matters involving the Project. City shall have the right to suspend any or all Work if Design-Builder fails to comply with its obligations hereunder without any requirements of increasing a GMP or Contract Time.

F. Emergencies. Design-Builder shall develop an emergency response plan in accordance with the Contract Documents. The emergency response plan shall establish the protocols for Design-Builder in dealing with emergencies impacting the performance of the Work and ensure there is sufficient response to any medical or fire emergency, such as injury to an employee or wildfire at the Site. The emergency response plan shall be subject to the approval of City.

In case of an emergency which threatens immediate loss or damage to property or health and safety of life, Design-Builder shall act immediately to prevent threatened loss, damage, injury or death. Design-Builder shall notify City’s Representative of the situation and all actions taken immediately thereafter. Prior to commencing Construction Work, and at all times during the performance of the Work, Design-Builder shall provide City with 24-hour emergency phone numbers where its representatives can be contacted. When 428
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53 City has been notified of emergency situations requiring, in City’s reasonable opinion, immediate attention and rectification, City will so notify Design-Builder.

In the event Design-Builder fails to commence actions to prevent threatened loss, damage, injury or death immediately after notification from City, City may take all appropriate rectification actions and deduct the costs thereof from monies owed to Design-Builder.

5.6 Security.

A. Security Generally. Design-Builder shall be responsible for the security and protection of the Project and the Site, including any security requirements set forth in the Contract Documents. Design-Builder shall guard against all damage or injury to such properties caused by trespass, negligence, vandalism or malicious mischief of third parties, and shall operate, maintain, repair and replace all surveillance and other security equipment and assets constituting fixtures of the Project in accordance with the Contract Documents. DesignBuilder shall comply with, and cause all Subcontractors to comply with, all terms and conditions related to security.

B. Security Plan. Design-Builder shall provide, for City’s review and comment, a Security Plan, prepared in accordance with the Contract Documents. DesignBuilder shall not perform any Construction Work until the City has reviewed and commented on the Security Plan. Design-Builder shall provide a final Security Plan, having addressed any comments provided by City, as a precondition to Construction Work.

5.7 Hazardous Waste.

A. Hazardous Waste Introduced by Design-Builder. City shall not be responsible for any Hazardous Waste brought to the site by Design-Builder. If DesignBuilder: (i) introduces and/or discharges Hazardous Waste onto the Site in a manner not specified by the Contract Documents; and/or (ii) disturbs a Hazardous Waste identified in the Contract Documents, Design-Builder shall hire a qualified remediation contractor at Design-Builder’s sole cost to eliminate the condition as soon as possible. Under no circumstance shall Design-Builder perform Work for which it is not qualified. City, in its sole discretion, may require Design-Builder to retain at Design-Builder’s cost an independent testing laboratory.

B. Encountering Hazardous Waste. If Design-Builder encounters Hazardous Waste which may cause foreseeable injury or damage, Design-Builder shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such material or substance (except in an emergency situation); and (iii) notify City (and promptly thereafter confirm such notice in writing).

Design-Builder shall contract for any services required to directly remove and/or abate Hazardous Waste, if required. The Work in the affected area shall 429
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54 not thereafter be resumed except by written agreement of City and DesignBuilder.

C. Hazardous Waste Indemnification. Design-Builder shall indemnify, defend, and hold harmless City from and against claims, damages, losses and expenses, arising from Hazardous Waste on the Site, if such Hazardous Waste was brought to the Site by Design-Builder. Nothing in this paragraph shall obligate Design-Builder to indemnify City in the event of the sole or active negligence or willful misconduct of City, its officers, agents, or employees.

5.8 Water Quality Management and Compliance.

A. Storm Water. Storm, surface, ground, nuisance, or other waters may be encountered at various times during construction of the Project. Design-Builder hereby acknowledges that it has investigated the risk arising from such waters, has prepared a GMP accordingly, and assumes any and all risks and liabilities arising therefrom.

B. Discharge of Storm Water. Design-Builder shall keep itself and all Subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 13000 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); and any and all regulations, policies, or permits issued pursuant to any such authority.

C. Construction General Permit. Design-Builder shall comply with all conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction Activity (“Construction General Permit”) for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development or sale. Design-Builder shall comply with the lawful requirements of City, and any other applicable municipality, drainage district, or other local agency with jurisdiction over the location where the Work is to be conducted, regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

D. Violations. Failure to comply with the Construction General Permit, laws, regulations, and ordinances listed in this Article is a violation of federal and state law. Notwithstanding any other indemnity contained in these Contract Documents, Design-Builder agrees to indemnify and hold harmless City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, fees, costs, expenses, or losses or liabilities of any kind or nature which City, its officials, officers, agents, 430
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55 employees and authorized volunteers may sustain or incur for noncompliance with the Construction General Permit, laws, regulations, and ordinances listed above, arising out of or in connection with the Work, except for liability resulting from the sole established negligence, willful misconduct or active negligence of City, its officials, officers, agents, employees or authorized volunteers. City reserves the right to defend any enforcement action or civil action brought against City for Design-Builder’s failure to comply with any applicable water quality law, regulation, or policy. Design-Builder hereby agrees to be bound by, and to reimburse City for the costs associated with, any settlement reached between City and any relevant enforcement entity.

5.9 Environmental Requirements.

A. Environmental Quality Protection.

1. Environmental Regulations. City operates under a number of environmental permits issued by various agencies. Design-Builder shall comply with all requirements of Applicable Law for environmental rules and regulations.

Any infractions of Applicable Law by Design-Builder during the term of the Contract, which result in penalties, will be the responsibility of DesignBuilder. If due to an action, inaction, or negligence by Design-Builder, City becomes subject to non-compliance penalties, the cost of such penalties shall be borne by Design-Builder.

2. Preservation of Site. Design-Builder shall exercise care to preserve the natural landscape and vegetation and shall conduct operations so as to prevent unnecessary destruction, scarring, or defacing of the natural surroundings in the vicinity of the Work. Movement of crews and equipment within the rights-of-way and over routes provided for access to the Work shall be performed in a manner to prevent damage to property. When no longer required, construction roads shall be restored to original contours.

Upon completion of the Project and following removal of construction facilities and required cleanup, land used for construction purposes and not required for the completed installation shall be scarified and regraded, as required, so that all surfaces are left in a condition that will facilitate natural revegetation, provide for proper drainage, and prevent erosion.

3. Endangered Plants and Animals. If, in the performance of the Work, evidence of the possible occurrence of any Federally listed threatened or endangered plant or animal is discovered, Design-Builder shall notify City’s Representative immediately, giving the location and nature of the findings.

4. Cultural Resources. If, in the performance of the Work, Design-Builder should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, Design-Builder shall notify the City’s Representative immediately, giving the location and nature of the findings.

Written confirmation of the evidence, location and nature of the findings shall be forwarded to City’s Representative within two (2) Days. DesignBuilder shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the cultural resource. If directed by City’s Representative, Design-Builder will refrain from working in the immediate area, suspend the Work in its entirety, or resequence and/or alter its performance to ensure full compliance with all Applicable Laws. Should the presence of cultural resources be confirmed, Design-Builder will assist City’s Representative in the preparation and implementation of a data recovery plan. Design-Builder shall provide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition. Any City directed changes to the Work as a result of the cultural resource will be pursuant to the Contract Documents. Should Design-Builder, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Site, it will be subject to disciplinary action, arrest and penalty under Applicable Law. Design-Builder shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above. Design-Builder shall be required to pay for unauthorized damage and mitigation costs to cultural resources (historical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents.

B. Noise Restrictions. Design-Builder shall use only such equipment on the Project and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by Cal/OSHA.

Design-Builder shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer.

Should any muffler or other control device sustain damage or be determined to be ineffective or defective, Design-Builder shall promptly remove the equipment and shall not return said equipment to Project until the device is repaired or replaced. Said noise and vibration level requirements shall apply to 432
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57 all equipment at the Site or related to the Project, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by Design-Builder.

C. Diversion of Recyclable Waste Material. In compliance with the applicable City’s waste reduction and recycling efforts, Design-Builder shall divert all recyclable waste materials to appropriate recycling centers as required for compliance with the local jurisdiction’s waste diversion ordinances. DesignBuilder will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Design-Builder shall complete and execute any certification forms required by City or other applicable agencies to document Design-Builder’s compliance with these diversion requirements.

D. Air Pollution Control.

1. General. Design-Builder shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.

2. Air Rules. Without limiting the foregoing, Design-Builder must fully comply with all Applicable Laws in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the Air Quality Management District with jurisdiction over the Project and/or California Air Resources Board (“CARB”). Design-Builder shall specifically be aware of the application of these limits and requirements to "portable equipment", which definition includes any item of equipment with a fuel-powered engine.

3. CARB Regulations. To the extent applicable, Design-Builder, shall comply, and shall ensure all Subcontractors comply, with all requirements of CARB including, without limitation, all applicable terms of Title 13, California Code of Regulations Division 3, Chapter 9 and all pending amendments (“CARB Regulation”). Throughout Project, and for three (3) years thereafter, DesignBuilder shall make available for inspection and copying any and all documents or information associated with Design-Builder’s and Subcontractors’ fleet including, without limitation, the certificate of reported compliance, fuel/refueling records, maintenance records, emissions records, and any other information Design-Builder is required to produce, keep or maintain pursuant to the CARB Regulation upon two (2) calendar days’ notice from City. Design-Builder shall be solely liable for any and all costs associated with complying with the CARB Regulation as well as for any and all penalties, fines, damages, or costs associated with any and all violations, or failures to comply with the CARB Regulation. Design-Builder shall defend, indemnify and hold harmless City, its officials, officers, employees and authorized volunteers free and harmless from any claims, 433
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58 liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the CARB Regulation.

E. Dust Control. Design-Builder, at its expense, shall maintain all excavations, embankments, haul roads, permanent access roads, plant sites, waste disposal areas, borrow areas, and all other work areas free from dust. Industry accepted methods of dust control suitable for the area involved, such as sprinkling, chemical treatment, light bituminous treatment or similar methods, will be permitted.

5.10 Labor Requirements.

A. Prevailing Rates of Wages.

1. Prevailing Wage Laws. Design-Builder is aware of the requirements of Labor Code sections 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 certain “public works” and “maintenance” projects. Since this Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Design-Builder agrees to fully comply with such Prevailing Wage Laws. Design-Builder shall obtain a copy of the prevailing rates of per diem wages at the commencement of the Contract from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations (“DIR”) located at www.dir.ca.gov. In the alternative, Design-Builder may view a copy of the prevailing rate of per diem wages which are on file at City Hall and shall be made available to interested parties upon request. Design-Builder shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to perform work on the Project available to interested parties upon request and shall post copies at DesignBuilder’s principal place of business and at the Project site. Design-Builder shall post, at appropriate conspicuous points on the Site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned. Design-Builder shall defend, indemnify and hold City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

2. Penalties. Design-Builder shall forfeit as a penalty to City not more than Two Hundred Dollars ($200.00), pursuant to Labor Code section 1775, for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate as determined by the director of the DIR for such work or craft in which such worker is employed for any public work done under the Contract by it or by any Subcontractor under it. The difference between 434
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59 such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by Design-Builder.

3. Davis-Bacon. If the Contract is subject to the Davis-Bacon Act, the federal minimum wage rates for this Project are predetermined by the United States Secretary of Labor. These rates are available directly from the Department of Labor at http://www.wdol.gov and included in the Contract Documents. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the general prevailing wage rates determined by the director of the DIR for similar classifications of labor, Design-Builder and its Subcontractors shall pay not less than the higher wage rate.

B. Public Works Contractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, Design-Builder and its Subcontractors must be registered with the DIR prior to the execution of a contract to perform public works. By entering into the Contract, Design-Builder represents that it is aware of the registration requirement and is currently registered with the DIR. Design-Builder shall maintain a current registration for the duration of the Project. Design-Builder shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all Subcontractors are registered at the time the subcontract is entered into and maintain registration for the duration of the Project.

C. Employment of Apprentices. Design-Builder and all Subcontractors shall comply with the requirements of Labor Code sections 1777.5 and 1777.6 in the employment of apprentices. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. Knowing violations of Labor Code section 1777.5 will result in forfeiture not to exceed one hundred dollars ($100.00) for each calendar day of non-compliance pursuant to Labor Code section 1777.7.

D. Hours of Work. As provided in Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code, Design-Builder stipulates that eight (8) hours of labor shall constitute a legal day’s work. The time of service of any worker employed at any time by Design-Builder or by any Subcontractor under the Contract upon the Work or upon any part of the Project contemplated by the Contract is limited and restricted to eight (8) hours during any one calendar day and 40 hours during any one calendar week, except as hereinafter provided. Notwithstanding the provisions herein above set forth, Services performed by employees of Design-Builder in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon this public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half times the basic rate of pay. Design-Builder and every Subcontractor shall keep an accurate record showing the name of and 435
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60 actual hours worked each calendar day and each calendar week by each worker employed in connection with the Services or any part of the Services contemplated by the Contract. The record shall be kept open at all reasonable hours to the inspection of City and to the Division of Labor Law Enforcement, Department of Industrial Relations of the State of California. Design-Builder shall pay to City a penalty of twenty-five dollars ($25.00) for each worker employed in the execution of the Contract by Design-Builder or by any Subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code.

E. Payroll Records; Labor Compliance.

1. Maintaining Records. Pursuant to Labor Code section 1776, Design-Builder and all Subcontractors shall maintain weekly certified payroll records, showing the names, addresses, Social Security numbers, work classifications, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by them in connection with the Services under the Contract. Design-Builder shall certify under penalty of perjury that records maintained and submitted by Design-Builder are true and accurate. Design-Builder shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury.

2. Furnishing Records. In accordance with Labor Code section 1771.4, Design-Builder and each Subcontractor shall furnish the certified payroll records directly to the DIR on the specified interval and format prescribed by the DIR, which may include electronic submission. Design-Builder shall comply with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement.

3. Stop Orders. Any stop orders issued by the DIR against Design-Builder or any Subcontractor that affect Design-Builder’s performance of Services, including any delay, shall be Design-Builder’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered DesignBuilder caused delay subject to any applicable liquidated damages and shall not be compensated by City. Design-Builder shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Design-Builder or any Subcontractor.

4. Certifying Records. The payroll records described herein shall be certified and submitted by Design-Builder at a time designated by City. DesignBuilder shall also provide the following:
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61 a. A certified copy of the employee’s payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
b. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.

5. Form of Records. Unless submitted electronically, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the DIR or shall contain the same information as the forms provided by the DLSE.

6. Copies of Records. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency, City, the Division of Apprenticeship Standards or the DLSE shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of Design-Builder awarded the Contract or performing Services on the Contract shall not be marked or obliterated.

7. Noncompliance. In the event of noncompliance with the requirements of this Article, Design-Builder shall have ten (10) Days in which to comply subsequent to receipt of written notice specifying in what respects DesignBuilder must comply with this Article. Should noncompliance still be evident after such 10-Day period, Design-Builder shall pay a penalty of one hundred dollars ($100.00) to City for each Day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the DLSE, such penalties shall be withheld from progress payment then due.

F. Nondiscrimination/Equal Employment Opportunity. Pursuant to Labor Code section 1735 and other Applicable Law, Design-Builder and its Subcontractors shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law on this Project. DesignBuilder will take affirmative action to ensure that employees are treated during employment or training without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law.

G. Debarment of Contractors and Subcontractors. Contractors or Subcontractors may not perform work on a public works project who are ineligible to perform work pursuant to Labor Code section 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not 437
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62 receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid or may have been paid to a debarred Subcontractor by Design-Builder on the Project shall be returned to City. Design-Builder shall be responsible for the payment of wages to workers of a debarred Subcontractor who has been allowed to work on the Project. 438
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63 ARTICLE 6 -COST OF CONSTRUCTION WORK

6.1 Early Work and Purchases.

A. Generally.

1. City may direct, or the Parties may agree, that Design-Builder will procure an Early Purchase Item or perform an Early Construction Package. For purposes of interpretation, and unless otherwise stated, the terms of these General Conditions that apply to procurement of equipment and material or Construction Work shall apply to an Early Purchase Item or an Early Construction Package. This includes, but is not limited to, applicable procurement requirements and compensation for an Early Purchase Item or an Early Construction Package.

2. Approval by City of an Early Purchase Item or an Early Construction Package shall not prejudice any right of City with respect to Phase 2 or the remainder of the Construction Work, including City’s right to terminate the Contract if the Parties cannot agree to a GMP Amendment and move to Phase 2. For the avoidance of doubt, in no event shall an Early Purchase Item or Early Construction Package be construed as a GMP Amendment or as a Notice to Proceed with Phase 2.

3. Design-Builder expressly agrees and acknowledges that this process for an Early Purchase Item or an Early Construction Package is a contractual mitigation measure to avoid increased costs and to avoid delay(s) to the construction of the Project. City’s consent to this process hereunder shall in no way entitle Design-Builder to an increase in the Contract Price or an extension of the Contract Time after the issuance of the Notice to Proceed for Phase 2, unless otherwise permitted, and consistent with the requirements of, the Contract Documents.

B. Early Purchase Item.

1. Design-Builder shall procure Early Purchase Items on either a best value or low-bid basis, as allowed by City. In the event that a best value procurement is utilized, Design-Builder will obtain approval of the evaluation criteria from City and City has the right to review all proposals submitted. In the event that a low-bid procurement is utilized, City has the right to review and accept all bids submitted.

2. Each Early Purchase Item Amendment, if any, shall set forth all pricing, schedule, and other relevant commercial terms specific to the corresponding Early Purchase Item. Design-Builder shall obtain express written authorization from City prior to procurement of any equipment as part of an Early Purchase Item. Design-Builder may procure equipment at its own risk without obtaining City’s prior approval.
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64 3. Upon delivery of an Early Purchase Item to Design-Builder, whether at the Site or off-site, Design-Builder shall provide City with verifiable documentation of the receipt of any Early Purchase Item(s) including bill of lading and photographs specifically identifying:
a. The Early Purchase Item;
b. The serial number of each Early Purchase Item; and/or c. Other indicia authenticating the Early Purchase Item.

4. Design-Builder’s obligations to store an Early Purchase Item shall comply with all requirements for storage of equipment and materials, the Contract Documents and shall ensure that all policies of insurance protecting property shall cover the Early Purchase Item.

C. Early Construction Package.

1. If City chooses to authorize the preparation of a proposal for an Early Construction Package, the Parties will agree upon the specific process for doing so, with the understanding that the process is intended generally to follow the submittal and negotiation process set forth for a GMP Proposal.

Design-Builder shall comply with all applicable procurement requirements required by the Contract Documents.

2. An Early Construction Package shall set forth the proposed scope of work under the Early Construction Package, the proposed timing, a procurement plan for the work and any other information necessary to approve and proceed with the Early Construction Package.

3. Each Early Construction Amendment, if any, shall set forth all pricing, schedule, and other relevant commercial terms specific to the corresponding Early Construction Package. If utilized, the form of the Early Construction Amendment shall be generally consistent with the form of a GMP Amendment.

4. Design-Builder shall not commence an Early Construction Package until City issues a Notice to Proceed for the Early Construction Package. City shall have no liability to Design-Builder with respect to an Early Construction Package unless and until City issues a Notice to Proceed for the Early Construction Package, and then only to the extent of the Early Construction Amendment for which City issued a Notice to Proceed.

5. All services performed pursuant to an Early Construction Amendment shall constitute Construction Work and shall be performed in accordance with the Contract Documents for Construction Work.

6.2 Guaranteed Maximum Price.
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65 A. Design-Builder guarantees that the final cost to construct Work shall not exceed the GMP for the Work, subject to any additions or deductions as provided in the Contract Documents. Except as otherwise provided in the Contract Documents, Design-Builder shall assume the risk of all costs in excess of the GMP in the performance of Work and to provide a fully completed and successfully operational Project, complete in every detail according to the provisions of the Contract Documents and shall not be entitled to additional payments because of such excess costs. Should Design-Builder believe that it is entitled to additional compensation, whether money or time, it must request such compensation through a Change Order Request. If the final accounting of the costs for Work exceeds the GMP for the Work, including all adjustments to the GMP in accordance with the Contract Documents, Design-Builder shall be solely responsible for all costs exceeding such amount.

B. A GMP includes and assumes that from time to time, Design-Builder will encounter delays and difficult site conditions arising from limited access to work areas, other interference, or conditions at the Project site. Design-Builder assumes full responsibility for its examination, investigation and understanding of the difficulties which may be encountered and has included in a GMP the cost of any Work associated with such difficulties.

6.3 Composition of Guaranteed Maximum Price.

A. GMP Elements. The GMP will be based on an Open Book Basis and comprised of the following elements:

1. Completion of Design Work for the Project, including any design support services during Phase 2.

2. Cost of Work, including:
a. Direct Cost;
b. General Conditions Cost; and
c. Subcontractor Construction Cost.

3. Bond costs without markup.

4. Insurance costs without markup.

5. Design-Builder’s Self-Performance Fee applied to Design-Builder’s Direct Cost and General Conditions Cost.

6. Design-Builder’s Subcontractor Fee applied to Subcontractor Construction Cost.

7. Design-Builder Contingency, if any.
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66 8. Allowances, if any.

B. Design Work Services. City and Design-Builder will negotiate an amount for Design-Builder to provide design support services in Phase 2. The amount will be based on pricing in Design-Builder’s Cost Proposal Form and how the Phase 1 Fee is established.

C. Cost of Work Components.

1. Direct Cost.
a. Direct Cost includes the actual and verifiable Direct Cost necessarily incurred and paid by Design-Builder in the proper performance of Construction Work. Direct Cost include, but are not limited to, the following:
(i) Field Labor Cost. The cost of field labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the Work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation,
apprenticeship funds, and other direct costs resulting from federal, state or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. City shall not be responsible for any labor rates in excess of the prevailing wage rate unless specifically authorized by the City’s
Representative for individuals with special qualifications. Wages, burdens, and fringes will be paid at actual cost as verified as part of the labor compliance reporting process and are fully auditable.

They shall include the following: actual wages paid to employees; labor burden, including charges for social security taxes, Medicare taxes, federal unemployment taxes, state
unemployment taxes, and other taxes pertaining to labor; and employer payments to or on behalf of the workers for health, welfare, pension, vacation, apprenticeship funds and similar purposes, as well as assessments or benefits required by lawful collective bargaining agreements. Cost for supervision above the level of working foremen (such as general foremen,
superintendent, project manager, etc.) is considered to be included in Indirect Cost. Premium and overtime rates shall not be paid by the City unless authorized or directed by the City in writing.
(ii) Materials, Equipment Cost. The cost of materials and equipment incorporated into the Project shall be actual costs, including purchase, transportation, inspection, testing, storage and handling costs. Cost of materials described in the preceding sentence in excess of those actually installed but required to 442
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67 provide reasonable allowance for waste and for spoilage, require written approval by City. Unused excess materials, if any, shall be turned over to City at the completion of the Project or, at City’s option, shall be sold by Design-Builder; amounts realized, if any, from such sales shall be credited to City as a deduction from the Direct Cost. City reserves the right to furnish materials and equipment for the Project.
(iii) Construction Equipment Cost. Regardless of ownership, rates for temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers, which are provided by Design-Builder at the Site, whether rented from DesignBuilder or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof, shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the Work is performed.

Design-Builder shall furnish cost data supporting the
establishment of the equipment rate. In the absence of a identified direct cost for the equipment, Design-Builder will be paid for the use of equipment at the rental rates identified for such equipment in the edition of the State of California Department of Transportation (Caltrans) publication “Labor Surcharge & Equipment Rental Rates” as supplemented by the Caltrans “Miscellaneous Equipment Rental Rates” publication in effect on the date the Work is performed. If that equipment is not listed in either Caltrans publication, the U.S. Army Corps of Engineers publication “Construction Equipment Ownership and Operating Expense Schedule” in effect on the date the Work is performed shall be used to determine the rental rate. The equipment rates paid, as above provided, shall include the cost of fuel, oil, lubrication supplies, small tools, necessary attachments, repairs and maintenance of all kinds, depreciation, storage, insurance, and all incidentals. Rates and quantities of equipment rented will be subject to City’s prior approval. The time to be paid for equipment shall be the time the equipment is in productive operation on the Work being performed. Charges for time will not be allowed while equipment is inoperative due to breakdowns. All equipment shall, in the opinion of City, be in good working condition and suitable for the purpose for which the equipment is to be used. When hourly rates are listed, any part of an hour less than 30 minutes of operation shall be considered to be 1/2-hour of operation, and any part of an hour greater than 30 minutes will be considered one hour of operation. When daily rates are listed, any part of a day less than 4 hours operation shall be considered to be 1/2-day of operation. Individual pieces of equipment having a replacement value of five thousand dollars ($5,000.00) or less shall be considered to be small tools or small equipment and no 443
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68 payment will be made for them. Small tools are part of Indirect Cost.
(iv) Sales Tax. Design-Builder’s charge for sales tax will be its actual, verified direct sales tax costs only.
(v) Travel; Lodging Cost. The reasonable cost of travel, accommodation, and meals for Design-Builder’s personnel directly involved in the performance of the Work, negotiated in a GMP.
b. Costs Not Considered Direct Cost. Direct Cost do not include the following: General Conditions Cost; Subcontractor Construction Cost; Design Work; Design-Builder’s personnel primarily stationed at Design-Builder’s principal or home offices; material or equipment provided by City; cost of Design-Builder’s capital used in the performance of the Construction Work; cost that would cause the GMP to be exceeded; discounts and rebates and the salvage value of tools and equipment consumed in the Work charged by DesignBuilder; cost incurred in performing call-back, repair and warranty work; cost due to the negligence, error, or omission of DesignBuilder or to the failure of Design-Builder to fulfill a specific responsibility to City set forth in the Contract Document; cost incurred as a result of a delay which does not constitute compensable delay under the Contract Documents; cost incurred in the performance of Phase 1 Services; legal fees and costs related to or arising from disputes between the Parties, including, but not limited to, mediation and litigation fees; any cost not specifically and expressly described as a reimbursable cost; and cost Design-Builder is required to bear as a result of Design-Builder’s failure to perform in accordance with the Contract Documents.

2. General Conditions Cost. General Conditions Cost will be negotiated between City and Design-Builder and established in a GMP Amendment.

Design-Builder will be paid for its General Conditions Cost based on a fixed duration price (i.e. x amount per week or month) and not on the basis of actual verified costs, unless otherwise agreed to by the Parties. General Conditions Cost includes Design-Builder’s costs to manage and support the Construction Work for a GMP, including, but not limited to, the following:
a. Design-Builder’s staff at the Site, including the following:
(i) Hourly costs of wages or salaries, including fringe benefits, of all Design-Builder’s supervisory and administrative personnel engaged in the performance of Construction Work but only for that portion of their time required for Work covered by the GMP, including but not limited to the project manager, construction 444
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69 manager, superintendent(s), and those responsible for managing and implementing Design-Builder’s general conditions, including, but not limited to, scheduling, cost control, billing, surveying, Security Plan, and Safety Plan.
(ii) Hourly costs of wages or salaries, including fringe benefits, of the Design-Builder’s supervisory and administrative personnel engaged off of the Site at suppliers, at workshops, or on the road, to assist in the coordination, production, or transportation of material or equipment for the Construction Work.
b. Field office costs for Design-Builder staff, including the following:
(i) Design-Builder field office mobilization and demobilization (ii) Office trailer rental
(iii) Office furniture and equipment
(iv) Office janitorial
(v) Office supplies
(vi) Office computers, software and maintenance
(vii)Office telephones, telephone and internet services, and all job site communication for the Project
(viii) Document reproduction services (off-site or custom) (ix) Copy machines, fax machines, printers, scanners, and paper shredders
(x) Postage, courier, and express delivery
(xi) Accounting and data processing costs
(xii)Jobsite radios/cellular phones
(xiii) Scheduling expenses
(xiv) Job meeting expenses
(xv) Employee identification system
(xvi) Record Drawings
(xvii) Project preconstruction and progress photos
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70 (xviii) Job Site security
c. Temporary amenities and utilities (include hookup, metering, and consumption costs) including the following:
(i) Drinking water
(ii) Temporary toilets
(iii) Temporary water distribution and meters
(iv) Temporary fire protection
(v) Temporary power
(vi) Temporary and emergency lighting
(vii)Temporary construction facilities and services
(viii) Temporary heat and ventilation

3. Subcontractor Construction Cost. Subcontractor Construction Cost includes payments made by Design-Builder to Subcontractors for the proper performance of Construction Work. Subcontractor Construction Cost include, but are not limited to, the following:
a. Payments made by Design-Builder to Subcontractors for any and all cost to perform Subcontracted Construction Work as part of the Work established in either a quote, proposal, or bid to Design-Builder, including, but not limited to, the Subcontractor’s direct costs, indirect costs, field and office overhead, performance bonds, payment bonds, insurance, and profit.

D. Bond Costs. Design-Builder’s charge for Performance Bond and Payment Bond costs shall be its actual, verified costs, without any markup, and identified in a GMP Amendment.

E. Insurance Costs. Design-Builder’s charge for insurance shall be its actual, verified costs, without any markup, and identified in a GMP Amendment.

F. Design-Builder’s Self-Performance Fee. Design-Builder’s Self-Performance Fee shall compensate Design-Builder for its home office overhead, profit, and other costs and expenses not specifically included in the Cost of Work. DesignBuilder Self-Performance Fee percentage is identified in the Special Conditions and shall only be applied to Design-Builder’s Direct Cost and Indirect Cost.

G. Design-Builder’s Subcontractor Fee. Design-Builder’s Subcontractor Fee shall compensate Design-Builder for its home office overhead and profit on 446
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71 Subcontractor Construction Cost. Design-Builder’s Subcontractor Fee percentage is identified in the Special Conditions and shall only be applied to Subcontractor Construction Cost.

H. Design-Builder Contingency.

1. Contingency. Design-Builder may propose within a GMP a Design-Builder Contingency for items such as Construction Work that could not have been anticipated by Design-Builder on the effective date of the GMP Amendment.

If agreed upon by City, the GMP Amendment shall describe when DesignBuilder Contingency may be used by Design-Builder.

2. Request for Contingency. Prior to performing any Work that Design-Builder intends to be paid for out of any portion of Design-Builder Contingency, Design-Builder must submit to City a written request for Design-Builder’s use of Design-Builder Contingency that shall include the same detail and requirements of a Change Order Request and substantiation enabling City to determine that the proposed use of the Design-Builder Contingency covers one of the contingency items identified in the GMP Amendment.

3. Contingency Use. Design-Builder Contingency is not a separate fund but is tracked as a separate line item within the GMP and will be used as a cost management tool. When used, Design-Builder Contingency funds will be subtracted from the Design-Builder Contingency line item and applied to one or more line items in the GMP. If Design-Builder depletes any DesignBuilder Contingency, any costs for items referenced by that Design-Builder Contingency shall be at Design-Builder’s sole expense.

4. Reconciliation. The unused portion of Design-Builder Contingency shall be retained by City at the end of the Project and will be documented by City through any reasonable means, including, without limitation, a deductive Change Order.

I. Allowances.

1. Allowance. In developing the GMP Proposal, Design-Builder may propose including appropriate Allowances for defined items of Work that cannot be appropriately quantified and estimated at the time the GMP Amendment is established. Each such item of Work will be covered in a separate line item and have a clear description in the GMP Amendment of what is covered by the Allowance.

2. Request for Allowance. Prior to performing any Work that Design-Builder intends to be paid for out of any portion of Allowances, Design-Builder must submit to City a written request for Design-Builder’s use of Allowances that shall include the same detail and requirements of a Change Order Request and substantiation enabling City to determine that the proposed use of the 447
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72 Allowance covers one of the Allowance items identified in the GMP Amendment.

3. Allowance Use. Allowance items will be converted to, and included as a line item within that GMP once conditions exist that allow them to be properly quantified and priced, only with specific written approval of City. Allowance items that cannot reasonably be quantified and estimated before the Allowance Work begins will be reconciled based on the actual cost of the Allowance Work. If the actual cost of the Work covered by an Allowance will be greater than the amount of Allowance, Design-Builder will notify City and if City authorizes the Allowance Work in a Change Order, the GMP will be increased by the additional agreed upon amount.

4. Reconciliation. The unused portion of Allowances shall be retained by City at the end of the Project and will be documented by City through any reasonable means, including, without limitation, a deductive Change Order.

6.4 Convert GMP to Lump Sum Price.

A. At City’s discretion, a GMP may be converted to a Lump Sum Price with a negotiated discount. To the extent that a GMP is converted to a Lump Sum Price, all references to GMP within the Contract Documents shall apply equally to the converted Lump Sum Price except as clearly and expressly indicated in any document effectuating the conversion.

6.5 Self-Performed Construction Work.

A. Self-Performed Construction Work Generally.

1. Amount of Construction Work Performed. The Special Conditions provide for the minimum and maximum amount of Construction Work required to be performed by Design-Builder on the Project.

2. Identification of Self-Performed Construction Work. Design-Builder is entitled to perform Self-Performed Construction Work, competitively bid against an independent cost estimate, in accordance with applicable law and written City approval. Design-Builder shall identify in Design-Builder’s Proposal the Self-Performed Construction Work that Design-Builder proposes to perform. To perform Construction Work not identified in Design-Builder’s Proposal, Design-Builder must submit a written request to City seeking approval, which is at City’s sole discretion, prior to submitting a GMP Proposal. The written request shall explain why the Work cannot be subcontracted and how performing the Work by Design-Builder will be most advantageous to City. City agrees to consider approving such request if Design-Builder demonstrates to City’s satisfaction that providing this Construction Work is in the best interest of the Project. If City approves the requests, Design-Builder still must follow the competitive procedures for Self-Performed Construction Work.
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73 B. Competitive Procedures for Self-Performed Construction Work.

1. Design-Builder must submit to City’s Representative as part of the GMP Proposal and on an Open Book Basis, pricing for Self-Performed Construction Work that includes a detailed description of the scope of the Work. The bid format shall be consistent with cost modeling provided during Phase 1 Services.

2. Prior to providing City with pricing for Self-Performed Construction Work, Design-Builder shall provide City with notice of when the pricing will be submitted and allow City a sufficient amount of time to engage an independent cost estimator to perform an independent cost estimate of the pricing.

3. Prior to receipt of Design-Builder’s pricing for Self-Performed Construction Work, City will perform an independent cost estimate of the pricing using, among other things, current local construction market costs.

4. If Design-Builder’s pricing is within X percent of City’s independent cost estimate, Design-Builder will be allowed to perform the Self-Performed Construction Work.

5. If Design-Builder’s pricing for Self-Performed Construction Work is more than X percent higher than City’s independent cost estimate, the Parties shall meet and confer to compare pricing and attempt to reconcile any differences. If necessary, Design-Builder will submit revised pricing and an updated GMP Proposal following the meet and confer process.

6. The Special Conditions provide the value for X in the two foregoing paragraphs.

7. Design-Builder shall submit revised pricing for Self-Performed Construction Work and an updated GMP Proposal as may be necessary to continue negotiations for a GMP Amendment. The process shall continue until either:
a. City agrees to the pricing for the Self-Performed Construction Work; b. If City’s independent cost estimate cannot be reconciled with DesignBuilder’s pricing, Design-Builder agrees to perform the SelfPerformed Construction Work at City’s final independent cost estimate;
c. At City’s sole discretion, allow Design-Builder to subcontract the Self-Performed Construction Work pursuant to the subcontracting procedures for Subcontractors in these General Conditions. DesignBuilder shall not be allowed to compete against bidders for the Construction Work. If City allows Design-Builder to subcontract the Self-Performed Construction Work, the minimum and maximum 449
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74 amount of Construction Work required to be performed by DesignBuilder on the Project shall not change. d. At City’s sole discretion, follow the procedures in these General Conditions for when the Parties are unable to execute a GMP Amendment.

8. Design-Builder shall not be entitled to an increase of the GMP or any extension of Contract Time related to the foregoing process.

C. Costs to Price and Bid Self-Performed Construction Work.

1. Any and all costs expended by Design-Builder to price Self-Performed Construction Work shall be part of the Phase 1 Fee.

2. If City allows Design-Builder to subcontract the Self-Performed Construction Work after failing to agree to pricing with Design-Builder for Self-Performed Construction Work, Design-Builder shall be responsible for any and all costs related to subcontracting the Self-Performed Construction Work. This includes, but is not limited, costs to prepare Work Packages and following the competitive subcontractor procurement procedures.

6.6 Key Subcontractors.

A. If applicable, pricing for Key Subcontractors shall be determined by following the competitive procedures for Self-Performed Construction Work.

6.7 Subcontracted Construction Work.

A. Subcontracted Construction Work. Design-Builder shall develop and prepare separate and specific Work Packages for each category of Subcontracted Construction Work that clearly delineates the scope of subcontracted Work.

Design-Builder shall be responsible for the assembly, reproduction and distribution of all documents defining the scope of work for each category of Subcontracted Construction Work.

B. Competitive Subcontractor Procurement.

1. Compliance with Law. Design-Builder shall procure Subcontractors through a competitive process that complies with Applicable Law, including, but not limited to, legislation that authorizes the Contract. Subcontractors shall be selected in accordance with protections provided by State law, including, but not limited to, the Subletting and Subcontracting Fair Practices Act (Public Contract Code sections 4100 et seq.). Exceptions to the competitive process shall only be authorized as set forth in the Contract Documents. 450
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75 2. Prequalification. Design-Builder may, at its option, advertise for statements of qualifications in order to prequalify or shortlist interested subcontractors prior to soliciting bids or proposals.

3. Public Notice. Design-Builder shall provide notice of bidding for Subcontracted Construction Work in accordance with the publication requirements applicable to City’s competitive bidding process including a fixed date and time on which qualification statements, bids, or proposals will be due. These posting requirements shall also apply to a request for qualifications.

4. Award Based on Best Value. Design-Builder shall award subcontracts to responsible subcontractors based on a best value basis. The solicitation shall identify all evaluation factors and their relative importance to determination of the award. Design-Builder shall develop a written method of determining the proposer who will provide the best value to the Project, which shall include consideration of price and other relevant factors.

Design-Builder shall document its basis for making the award.

5. City Review of Bid Packages and Notice. At least fourteen (14) Days prior to the release of Subcontracted Construction Work for bidding, DesignBuilder shall provide City with a copy of the written notice it will publish (including newspaper advertising) to solicit potential subcontractors and a copy of the Work Packages for the Subcontracted Construction Work. City reserves the right to request that Design-Builder reasonably revise its published notice or Work Package for Subcontracted Construction Work.

6. Bid/Proposal Opening. Design-Builder shall invite City to attend all bid and proposal opening(s) for Subcontracted Construction Work and shall within 48 hours of the bid or proposal opening(s) provide copies or access to all bid or proposal documents provided by all proposers or bidders.

7. Review of Bids, Proposals.
a. Solicitations shall include a procedure, developed and administered by Design-Builder, for protesting a prequalification determination or contract award. Design-Builder shall notify City of any protest prior to responding to such protest. Design-Builder shall be solely responsible for determining any protests to any of its subcontract awards.
b. Design-Builder may reject all bids or proposals and may waive any inconsequential irregularities in any bid or proposal. If Design-Builder rejects a bid or proposal as non-responsive, or otherwise determines the bidder or proposer is not eligible or qualified, Design-Builder shall document the basis for any rejection.
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76 8. Contracts. Construction subcontracts shall be on a lump sum or unit price basis, and Design-Builder shall not award contracts to Subcontractors on a basis that uses a percentage of construction cost contracting.

9. Rights of City.
a. Without limiting anything set forth herein, Design-Builder acknowledges and agrees that City shall have the right to: (a) review and comment on all procurement documents; (b) attend any bid or proposal openings; (c) attend any meetings with prospective subcontractors; (d) review all bids, proposals, and other information developed or otherwise resulting from any competitive procurement, including Design-Builder’s tabulation, scoring or evaluation materials; and (e) otherwise participate in the contract award process. Design-Builder shall provide City sufficient time, but in no case less than 20 Days, to exercise its rights regarding the foregoing.

Upon contract award, Design-Builder shall provide the City with a description of the competitive process undertaken in connection with such contract award, together with copies of all material documents used in connection therewith and agreements resulting therefrom. b. City, in its discretion, shall have the right to direct Design-Builder to reject any or all bids and proposals and re-solicit any Subcontracted Construction Work in accordance with the procurement
requirements of this Article in the event City is not satisfied that the competitive process or pricing received is fair, reasonable and consistent with industry standards for similar services. DesignBuilder shall not be entitled to an increase of the GMP or any extension of Contract Time if City requires Design-Builder to resolicit any Subcontracted Construction Work due to Design-Builder failing to follow the Contract requirements for solicitation of Subcontracted Construction Work.

C. Noncompetitive Subcontractor Procurement.

1. Design-Builder may procure Subcontractors without following the above competitive procurement procedures only if:
a. The Phase 2 Price is less than $10,000,000; or
b. If the Phase 2 Price is equal to or greater than $10,000,000, the Subcontracted Construction Work is equal to or less than one-half of one percent (0.5%) of the Phase 2 Price.

2. If following Design-Builder’s diligent and good faith solicitation of a number of sources, Design-Builder determines that competition is determined to be inadequate, Design-Builder may, with City’s express written authorization, utilize a noncompetitive process or may self-perform the Subcontracted 452
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77 Construction Work by following the procurement procedures for SelfPerformed Construction Work.

3. For a noncompetitive procurement, Design-Builder may obtain quotes, negotiate price or utilize any other selection method. Noncompetitively procured Subcontractors must still meet all other requirements of the Contract Documents, including but not limited to agreeing to being registered with the Department of Industrial Relations to perform public works and maintaining all appropriate licenses and qualifications to perform the respective Subcontracted Construction Work.

6.8 GMP Proposal.

A. Generally.

1. As part of Phase 1 Services, Design-Builder shall prepare a GMP Proposal as directed by City.

2. Prior to providing City with a GMP Proposal, Design-Builder shall provide City notice of when the GMP Proposal will be submitted. City shall be provided with a sufficient amount of time to review a GMP Proposal.

3. The GMP Proposal shall include and be based upon the Contract Documents and all other information, analysis, findings and reports provided to Design-Builder during the performance of Phase 1 Services and shall be prepared in accordance with the Contract Documents, including the Phase 1 Scope of Services.

4. Design-Builder shall develop the GMP on an Open Book Basis, providing City with full access to all details that make up the GMP Proposal.

5. Each GMP Proposal shall include a detailed and comprehensive description of how the proposed GMP was derived and the material factors on which it was based, all in compliance with the contractual requirements for establishing the GMP, together with any other related information required pursuant to this Article. All costs, bids, quotes, estimates and other information supporting the GMP Proposal shall be made available to City.

6. Design-Builder shall not be entitled to an increase of the GMP or any extension of Contract Time related to the GMP Proposal process.

B. Components of GMP Proposal. Design-Builder shall include with the GMP Proposal a written statement of its basis for the GMP, which shall include the following:

1. A list of the Construction Documents, including, among other things, the Drawings and Technical Specifications used as the basis for the GMP. 453
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78 2. A list of the assumptions, exceptions, and clarifications made by DesignBuilder in the preparation of the GMP Proposal, which list is intended to supplement the information contained in the Construction Documents.

3. Design-Builder’s proposed GMP on an Open Book Basis, including, but not limited to, the following:
a. A proposed cost to complete the Design Work for the Project and providing design support services during Phase 2;
b. A proposed Cost of Work with Design-Builder’s Self-Performance Fee and Design-Builder’s Subcontractor Fee;
c. A proposed bond cost;
d. A proposed insurance cost;
e. A proposed Design-Builder Contingency, if any;
f. A proposed Allowance, if any;
g. A proposed schedule of values for the Work; and
h. A proposed list of Subcontractors performing Subcontracted Construction Work, if known.

4. A proposed Phase 2 CPM Schedule.

5. A proposed Contract Time; and

6. Any other information requested by City as necessary or appropriate to negotiate and execute the GMP Amendment.

C. Early Purchase Items; Early Construction Packages. In the event that an Early Purchase Item Amendment or Early Construction Package Amendment has been executed prior to submittal of the Phase 1 Proposal, a proposal as to the manner in which the technical, price, schedule and other terms and conditions contained in the Early Purchase Item Amendment or Early Construction Package Amendment will be incorporated and taken account of in the GMP Amendment, with the objective that the GMP Amendment will contain and supersede all of the terms and conditions of any Early Purchase Item Amendment or Early Construction Package Amendment.

6.9 GMP Amendment.

A. Obligations of Design-Builder.

1. Design-Builder shall be obligated (1) to make a complete bona fide GMP Proposal in accordance with this Article and the Contract Documents, and 454
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79 (2) to negotiate in good faith toward a GMP Amendment based on the GMP Proposal.

2. If the GMP Proposal does not comply with the requirements of the Contract, City’s Representative shall provide written notice to Design-Builder of any additions, corrections or revisions required to achieve such compliance. In such event, Design-Builder, at its cost and expense and without any increase in the Phase 1 Fee, shall promptly take all necessary rectification action, make multiple re-submittals if required. The failure of Design-Builder to provide a GMP Proposal in accordance with the Contract Documents shall be a material breach of the Contract.

B. Negotiation, Execution of GMP Amendment.

1. City and Design-Builder acknowledge and agree that each intends to negotiate and enter a GMP Amendment mutually acceptable to the Parties for the performance of the Work based on the GMP Proposal.

2. The execution and delivery of the GMP Amendment shall establish the GMP and the Contract Time for Phase 2, along with other basic terms and conditions of the Contract which were not established at the Effective Date.

Unless otherwise expressly stated by the Parties in the GMP Amendment, the GMP Amendment shall not modify any portion of the Contract Documents.

3. The execution of a GMP Amendment shall not prejudice any right of City with respect to the remainder of the Construction Work, including City’s right to terminate the Contract and not construct Work Packages.

C. Representations in the GMP Amendment.

1. In the event the Parties execute a GMP Amendment, the GMP Amendment shall be deemed to constitute a representation by Design-Builder that:
a. It has examined, carefully studied, and thoroughly understands the Contract Documents associated with the Project;
b. It has thoroughly reviewed and verified all information provided to or obtained by Design-Builder through the performance of Phase 1 Services, including reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site;
c. It has become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Project;
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80 d. It is familiar with and is satisfied as to all Applicable Law that may affect cost, progress, and performance of the Project;
e. It has considered the information known to Design-Builder, including information commonly known to contractors doing business in the localities of the Site; information and observations obtained from visits to the Site; and the Site-related reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on:
(i) The cost, progress, and performance of the Project; and (ii) The means, methods, techniques, sequences, and procedures of construction to be employed by Design-Builder, including any specific means, methods, techniques, sequences, and
procedures of construction expressly required by the Contract Documents.
f. Based on all of the foregoing and the performance of Phase 1 Services, the Site constitutes an acceptable and suitable location for construction of the Project;
g. It does not consider that further examinations, investigations, explorations, tests, studies, or data are necessary for it to enter into the GMP Amendment for the completion of the Work for the GMP within the Contract Time, and in accordance with the other terms and conditions of the Contract;
h. The Contract Documents are sufficient to enable Design-Builder to determine the GMP and Contract Time; and
i. Subject to the terms and conditions of the Contract, the GMP can be completed in accordance with the Contract Documents for the GMP within the Contract Time.

D. Failure to Execute GMP Amendment.

1. If the Parties are unable to reach an agreement on Design-Builder’s GMP Proposal and execute a GMP Amendment, City reserves the right, in its sole discretion, to, without limitation, do any of the following (or, a combination thereof):
a. Allow the Design-Builder to complete Phase 1, if not yet completed.

City shall pay Design-Builder only for the compensation agreed to for Phase 1. All deliverables. including but not limited to. Work Product and Construction Documents shall become the exclusive property of City.
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81 b. Complete the Project as a traditional design-bid-build project and have the Design-Builder prepare of a fully biddable set of Drawings and Technical Specifications, provide bid phase support, and provide design support services during construction. City and Design-Builder shall negotiate compensation for Design-Builder to perform such services based on Design-Builder’s Cost Proposal Form.
c. Terminate Design-Builder for convenience in accordance with the General Conditions and take possession of any Work Product Construction Documents, even if not complete.
d. Complete the Project by any other project delivery method, including, but not limited to, soliciting proposals to complete the Project from other firms that submitted SOQs in response to the RFP for this Project, or seek approval from the City Council that it is in the best interest of City to formally solicit proposals from other design-build entities. Design-Builder shall not be entitled to bid or propose on any part of the Project.

2. City shall have the right at any time in its discretion to proceed to develop and implement Work Packages with other contractors. City may exercise such right during the performance of Phase 1 Services, upon termination of the Contract or upon any failure of the Parties to execute a GMP Amendment.
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82 ARTICLE 7 - SUBMITTALS; SHOP DRAWINGS

7.1 Submittals.

A. Schedule of Submittals. Within five (5) Days after the Notice to Proceed for Phase 2 or any GMP (unless otherwise specified in the Contract Documents), Design-Builder will prepare and deliver a Schedule of Submittals to City that has been fully integrated with the Phase 2 CPM Schedule and identifies each Submittal required by the Contract Documents as well as the date on which Design-Builder will deliver each Submittal to City. Each Submittal must be delivered to City at least thirty (30) Days prior to the date the material or equipment is scheduled to be incorporated into the Work. Design-Builder is responsible for any schedule delays resulting from the Submittal process.

B. Submittal Procedures.

1. Procedures. Except as otherwise specifically stated in the Contract Documents, Design-Builder will abide by the following procedures for each Submittal, Shop Drawing and Sample required by the Contract Documents:
a. Submittals must be transmitted electronically.
b. Transmittals will be sequentially numbered. Design-Builder to mark revised Submittals with original number and sequential alphabetic suffix.
c. Each Submittal will identify the Project, Design-Builder, Subcontractor and Supplier, pertinent Drawing and detail number, and Specification section number appropriate to Submittal. d. By transmitting a Submittal, Design-Builder certifies it has reviewed and approved each Submittal, verified products required, field dimensions, adjacent construction work, and that coordination of information is according to requirements of the Work and Contract Documents.
e. Identify variations in Contract Documents and product or system limitations that may differ and/or be detrimental to successful performance of a completed Work.
f. When Submittal is returned to Design-Builder with comments for revision, Design-Builder shall promptly address the City’s Representative’s comments and resubmit. Design-Builder shall identify changes made since previous submission. Delays resulting from incorrect submittals are not the responsibility of City. g. City’s review of Shop Drawings shall not relieve Design-Builder from responsibility for deviations from the Contract Documents unless 458
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83 Design-Builder has, in writing, called City’s attention to such deviations at time of submission and City has taken no exception to the deviation. City’s review of Shop Drawings shall not relieve Design-Builder from responsibility for errors in Shop Drawings. h. Submittals not required by the Contract Documents or requested by City will not be acknowledged or processed.
i. Incomplete Submittals will not be reviewed by City and returned to Design-Builder. Delays resulting from incomplete Submittals are not the responsibility of City.
j. Design-Builder shall not be entitled to an increase of a GMP or any extension of the Contract Time as a result of the Submittal process. k. Design-Builder shall allow a minimum of 20 Days for review of Submittals unless otherwise specified in the Contract Documents.

2. Early Work. Where a Submittal, Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to City review and acceptance of the pertinent submittal will be performed at the risk and sole expense and responsibility of DesignBuilder.

C. Schedule Milestone for Submittals. Design-Builder must submit all Submittals required by the Contract Documents in accordance with the Schedule of Submittals. If Design-Builder fails to submit the Submittals in accordance with the Schedule of Submittals, Design-Builder will be solely liable for any delays or impacts caused by the delayed Submittal, whether direct or indirect. DesignBuilder will be liable for the time calculated from the date the Submittal is due until the date a compliant Submittal is made. A compliant Submittal will be one that is complete and satisfies the requirements of the Contract Documents.

7.2 Shop Drawings and Sample Submittal Procedures.

A. Prerequisites. Except as otherwise specifically stated in the Contract Documents, Design-Builder will abide by the following procedures for Shop Drawings and Samples. Before submitting each Shop Drawing or Sample, Design-Builder shall have:

1. Reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents;

2. Determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; 459
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84 3. Determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and

4. Determined and verified all information relative to Design-Builder’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto.

B. Variations. With each Submittal, Design-Builder shall give City specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample Submittal and, in addition, a specific notation made on each Shop Drawing or Sample submitted to City for review and approval of each such variation.

C. Shop Drawings.

1. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show City the services, materials, and equipment Design-Builder proposes to provide and to enable City to review the information for assessing conformance with information given and design concept expressed in Contract Documents.

2. When required by individual Specification sections, provide Shop Drawings signed and sealed by a professional engineer responsible for designing components shown on Shop Drawings. Shop Drawings must include signed and sealed calculations to support design in a form suitable for submission to and approval by Governmental Bodies having jurisdiction over the Project.

3. Shop Drawings for steel structures shall consist of shop details, erection and other working drawings showing details, dimensions, sizes of members and other information necessary for the complete fabrication and erection of the metal work.

4. Shop Drawings of concrete structures shall consist of such detailed drawings as may reasonably be required for the successful prosecution of the Work and which are not included in the Drawings. These may include drawings for false work, bracing, centering and form work, masonry layout diagrams, and diagrams for bent reinforcement.

5. Design-Builder shall make revisions and provide additional information when required by Governmental Bodies having jurisdiction over the Project.

D. Samples. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as 460
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85 required to enable City to review the submittal for assessing conformance with information given and design concept expressed in Contract Documents.

Samples should be of appropriate size and detail to assess functional, aesthetic, color, texture, patterns and finish selection.

E. City’s Review. City will review Shop Drawings and Samples in accordance with the Schedule of Submittals. City’s review and acceptance will be only to determine if the items covered by the Submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. City review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. City’s review and acceptance shall not relieve Design-Builder from responsibility for any variation from the requirements of the Contract Documents unless City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample.

F. Resubmittal Procedures. Design-Builder shall make corrections required by City and shall return corrected Shop Drawings and submit, as required, new Samples for review and approval. Design-Builder shall direct specific attention in writing to revisions other than the corrections called for by City on previous Submittals.
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86 ARTICLE 8 - MATERIALS; EQUIPMENT

8.1 Materials, Equipment.

A. New Materials,Equipment. Unless otherwise specified, all materials, parts, and equipment furnished by Design-Builder in the Work shall be new, the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality. No materials, supplies, or equipment for Construction Work under the Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or Supplier. Design-Builder warrants good title to all material, supplies, and equipment installed or incorporated in the Work and agrees upon completion of all work to deliver the Project, to City free from any claims, Liens, or charges.

B. Necessary Materials, Equipment. Except as otherwise specifically stated in the Contract Documents, Design-Builder shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities whatsoever necessary to execute and complete this Project within the Contract Time. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of the Construction Work and shall be stored properly and protected as required by the Contract Documents. Design-Builder shall be entirely responsible for damage or loss by weather or other causes to materials or Work. Materials shall be stored on the Site in such manner so as not to interfere with any operations of City or any Separate Contractor.

C. Verifications of Needed Materials, Equipment. Design-Builder shall verify all measurements, dimensions, elevations, and quantities before ordering any materials or equipment or performing any Work, and City shall not be liable for Design-Builder’s failure to so. No additional compensation will be allowed because of differences between actual measurements, dimension, elevations and quantities and those indicated on the Construction Documents.

D. Materials and Equipment Provided by City. If applicable and upon written request of Design-Builder, any materials or equipment furnished by City shall be available to Design-Builder within a reasonable time at the points designated in the Contract Documents. The cost of handling, including loading and unloading, transport, storing, and placing all materials or equipment after they are made available to Design-Builder shall be considered as included in the GMP. Design-Builder shall be responsible for all material or equipment furnished to Design-Builder, and deductions will be made from any monies due to Design-Builder to make good any shortages, damages and deficiencies, from any cause whatsoever, which may occur after materials or equipment are provided.
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87 E. Storage of Materials, Equipment. Design-Builder may request payment for materials and equipment not incorporated in the Work but properly stored at the Site or at another location. Such request must be writing, accompanied by a bill of sale, paid invoice or other documentation warranting that DesignBuilder has received the materials and equipment free and clear of all charges, security interests and encumbrances, and include evidence that the materials and equipment are covered by appropriate property insurance and other arrangements to protect City’s interest therein, including security and transportation to the Site. City has the sole discretion whether or not to approves the request. If City approves the request, payment may be requested on the next application for payment. No payment will be made for perishable materials that could be rendered useless because of long storage periods.

8.2 Test and Inspections of Work.

A. Inspection of Work.

1. Inspection Notifications, Costs. If the Contract Documents, City’s Representative, Applicable Law, or Governmental Body requires any part of the Work to be tested or approved by City, Design-Builder shall provide City’s Representative at least two (2) Days’ notice of its readiness for observation or inspection. If inspection is by a Governmental Body other than City, Design-Builder shall provide proper notice as required by the Governmental Body and promptly inform City of the date fixed for such inspection. Required certificates of inspection (or similar) shall be secured by Design-Builder. Costs for City testing and inspection shall be paid by City. Cost for any testing and inspection not performed by Agency shall be included in the GMP. Costs of tests for Work found not to be in compliance shall be paid by Design-Builder.

2. Inspection Hours. If Design-Builder gives notice of an inspection pursuant to the Contract Documents, City will provide inspection during normal working hours, Monday through Friday, between 7:00 a.m. and 5:00 p.m.

For inspections on Saturdays, Sundays, or Holidays, Design-Builder shall first, pursuant to procedures in the Contract Documents, receive authorization in writing from City to work outside normal working hours.

3. Extra Costs. Design-Builder shall pay for the cost of any minimum “show up” costs of a materials testing technician that was called for by DesignBuilder but ultimately Design-Builder work was not ready for the inspection.

Any such costs shall be deducted from any amounts due to Design-Builder.

If any Work is done or covered up without the required testing or approval, Design-Builder shall uncover or deconstruct the Work, and the Work shall be redone after completion of the testing at Design-Builder’s cost in compliance with the Contract Documents.
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88 4. Independent Laboratory. Where inspection or testing is conducted by an independent laboratory or agency, materials or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by City’s Representative, and not by Design-Builder. Unless otherwise stated and as provided by the Contract Documents, City shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents. All tests or inspections of materials shall be made in accordance with the commonly recognized standards of national organizations.

5. Reexamination of Work. Reexamination of Work may be ordered by City. If so ordered, Work must be uncovered or deconstructed by Design-Builder.

If Work is found to be in accordance with the Contract Documents, City shall pay the costs of reexamination and reconstruction. If such work is found not to be in accordance with the Contract Documents, Design-Builder shall pay all costs.

B. Testing of Materials.

1. Manufactured Materials. In advance of manufacture of materials to be supplied by Design-Builder which must be tested or inspected, DesignBuilder shall notify City so that City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into the Work. If the manufacture of materials to be inspected or tested will occur in a plant or location greater than sixty (60) miles from City, Design-Builder shall pay for and include in the GMP any excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging.

2. Testing. Unless otherwise specified in the Contract Documents, all initial testing and a reasonable amount of retesting will be performed under the direction of the City’s Representative, and at no expense to Design-Builder.

Design-Builder shall notify the City’s Representative in writing, at least 15 Days in advance, of its intention to use materials for which tests are specified, to allow sufficient time to perform the tests. The notice shall name the proposed Supplier and source of material. If the notice of intent to use is sent before the materials are available for testing or inspection, or is sent so far in advance that the materials on hand at the time will not last but will be replaced by a new lot prior to use on the Work, it will be Design-Builder's responsibility to re-notify the City’s Representative when samples which are representative may be obtained.

3. Certificate of Compliance. A certificate of compliance shall be furnished to the City’s Representative prior to the use of any material or assembled material for which these Contract Documents so require or if so required by the City’s Representative. The City’s Representative may waive the 464
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89 materials testing requirements and accept a certificate of compliance.

Material test data may be required by the City’s Representative to be included with the Submittal. Materials used on the basis of a certificate of compliance may be sampled and tested at any time. The submission of a certificate of compliance shall not relieve Design-Builder of responsibility for incorporating material into the Work which conforms to the requirements of the Contract Documents, and any material not conforming to the requirements will be subject to rejection by the City’s Representative whether in place or not. Copies of mill certificates of composition and quality of all component materials (e.g., reinforcing steel, structural steel, lumber, etc.) incorporated in the construction of the Work shall be provided to City at the time of delivery. City shall retain the right to reject any raw material not provided with a mill certificate at the time of delivery.

4. Unacceptable Material. If, after incorporating such materials into the Work, it is found that sources of supply that have been approved do not furnish a uniform product, or if the product from any source proves unacceptable at any time, Design-Builder shall remove such material and furnish approved material from other approved sources. If any product proves unacceptable after improper storage, handling or for any other reason it shall be rejected, not incorporated into the Work, and shall be removed from the Site all at Design-Builder’s expense.
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90 ARTICLE 9 - PROJECT SITE

9.1 Use of Project Site.

A. Design-Builder Laydown Areas, Field Office. Laydown and staging areas for construction materials and equipment required for the Work and DesignBuilder’s field office shall be located on the Site or at other locations approved by City. The locations at the Site shall be identified in a GMP Amendment or the Construction Documents.

B. City Field Office. If specified in a GMP Amendment or the Construction Documents, Design-Builder shall provide and maintain an on-site field office and bathroom for the exclusive use of the City’s Representative and their staff.

The field office shall be completely equipped, fully functional, and ready for use within ten (10) Days of the commencement date for Phase 2 stated in the Notice to Proceed and must be maintained for the duration of the entire Project.

The locations at the Site shall be identified in a GMP Amendment or the Construction Documents.

C. Limitation of Use of Site and Other Areas. Rights-of-way, easements, or rightsof-entry for the Project will be provided as shown in the Contract Documents.

Unless otherwise specified in the Contract Documents, Design-Builder shall make arrangements, pay for, and assume all responsibility for acquiring, using, and disposing of additional work areas and facilities temporarily required.

Design-Builder shall indemnify, defend and hold City harmless from all claims for damages caused by such actions. Design-Builder shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Applicable Laws and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Design-Builder shall not use the Site for anything not directly related to constructing the Work, including, but not limited to, housing employees and other non-Work activities. Design-Builder shall assume full responsibility for any damage to any such land or area, or to City or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work.

D. Sanitary Facilities. Design-Builder shall provide sanitary temporary toilet buildings and hand washing facilities for the use of all workers. All toilets and hand washing facilities shall comply with Applicable Laws. Toilets shall be placed inside sealed secondary containment devices installed on a flat, level surface. Accumulated liquids in the secondary containment devices shall be properly removed and legally disposed of without spillage onto the ground.

Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets and hand washing facilities shall be serviced no less than once weekly and shall be presented in a quantity of not less than 1 per 20 workers as required by Cal/OSHA regulations. The toilets and hand washing facilities shall be maintained in a sanitary condition at all times. Any other 466
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91 sanitary facilities required by Cal/OSHA shall be the responsibility of DesignBuilder.

E. Utility Usage. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used for the Project shall be furnished and paid for by Design-Builder. Design-Builder shall provide necessary temporary distribution systems, including meters, if necessary, from distribution points to points where the utility is needed. Upon completion of the Project, DesignBuilder shall remove all temporary distribution systems. Design-Builder shall provide necessary and adequate utilities and pay all costs for water, electricity, gas, oil, and sewer charges required for completion of the Project, including but not limited to startup and testing required in the Contract Documents. All permanent meters installed shall be listed in Design-Builder’s name until the Project is accepted. For Work to be performed in existing City facilities, DesignBuilder may use City’s existing utilities, provided such use is reasonable under the circumstances. If Design-Builder uses City utilities, it will not need to compensate City for reasonably consumption of utilities, but Design-Builder will be responsible for any excessive, unreasonable or wasteful utility usage.

F. Site Maintenance. During the progress of the Work, Design-Builder shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris including without limitation before the end of each shift.

Removal and disposal of such waste materials, rubbish, and other debris shall conform to Applicable Laws. Design-Builder shall furnish trash bins for all debris from construction. All debris shall be placed in trash bins daily. Forms and false-work that are to be re-used shall be stacked neatly concurrently with their removal. Forms and false-work that are not to be re-used shall be disposed of concurrently with their removal.

G. Cleaning. Prior to completion of the Project, Design-Builder shall clean the Site and make it ready for utilization by City. At the completion of the Project DesignBuilder shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents.

H. Work Hours. Work may be performed at the Site Monday through Friday, between 7:00 a.m. and 5:00 p.m. and shall be considered normal working hours. For Work performed on Saturdays, Sundays, or Holidays, DesignBuilder shall request authorization in writing from City at least 72 hours prior to the requested date of work. Approval from City to work outside normal working hours shall be at its sole discretion.

I. Parking. Design-Builder shall be responsible for the parking of any and all vehicles belonging to its employees or employees of its Subcontractors in a legal manner at no additional expense or inconvenience to the City.

9.2 Preservation and Restoration of Property.
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92 A. Document Site. With the latest technology and prior to Construction Work, Design-Builder shall digitally record video and take photographs of the Site and adjacent improvements in a manner and quality that clearly depicts the existing condition of the Site and adjacent improvements immediately prior to the start of work. Design-Builder shall submit the video and photos in a manner specified by City.

B. Responsible for Damage. Design-Builder shall be responsible for all damages to persons or property that occur as a result of the Work. Design-Builder shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final acceptance by City. All Work shall be solely at Design-Builder’s risk. Design-Builder shall be responsible for the preservation of public and private property including along and adjacent to the Site. Design-Builder shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Design-Builder shall take every precaution necessary to prevent damage to pipes, conduits, and other underground structures and shall protect carefully from disturbance or damage all land, survey monuments, and property markers. When or where any direct or indirect damage is done to City’s, or adjacent, property by or on account of any act, omission, neglect, or misconduct in the performance of Work or in consequence of the non-performance thereof on the part of Design-Builder, Design-Builder shall restore, at Design-Builder’s own expense, such property to a condition equal to that existing before such damage was done by repairing, rebuilding, or otherwise restoring same, or Design-Builder will make good such damage in an acceptable manner.

C. Protection of Site. Design-Builder shall comply with all Applicable Laws to prevent accidents or injury to persons on, about, or adjacent to the Project site where Work is being performed. Design-Builder shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction. Design-Builder shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions.

Design-Builder shall:

1. Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public.

2. Provide substantial barricades around any shrubs or trees indicated to be preserved.

3. Deliver materials to the Site over a route designated by City.

4. Confine Design-Builder’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or 468
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93 directions of City. Design-Builder shall not unreasonably encumber the Site with its materials.

5. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by a civil engineer or land surveyor acceptable to City, at no cost to City.

6. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to City.

7. Preserve and protect from injury all buildings, pole lines and all directional, warning and mileage signs that have been placed within the right-of-way.

8. At the completion of work each day, leave the Work and the Site in a clean, safe condition.

9. Comply with any stage construction and/or traffic handling plans. Access to residences and businesses shall be maintained at all times, except with City’s written approval. Any request for approval to reduce or restrict access to residences and business must be submitted to City at least seven (7) Days in advance, and City may issue or withhold approval in its sole discretion.

D. Continuous Protection of Site. These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the work involved in the protection and preservation of life, safety and property as above specified shall be considered as included in the GMP, and no additional allowance will be made therefor.

E. Notification of Damage. Should damage to persons or property occur as a result of the Work, Design-Builder shall promptly notify City in writing. DesignBuilder shall be responsible for proper investigation and documentation, including video or photography, to adequately memorialize and make a record of what transpired. City shall be entitled to inspect and copy any such documentation, video, or photographs. If Design-Builder fails to respond to written demand for the repair of damage to property within twenty-four (24) hours of such notification, City reserves the right to repair the damage. Repairs made by City on Design-Builder’s behalf shall be reimbursed by Design-Builder to City or said costs of repairs may be deducted from amounts owed to DesignBuilder.

9.3 Conditions at Project Site.

A. Reports and Drawings. City has provided to Design-Builder those reports known to City of explorations and tests of subsurface conditions at or contiguous to the Site; and those drawings known to City of physical conditions 469
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94 relating to existing surface or subsurface structures at the Site, including, among other things, Underground Facilities.

B. Verification of Reports and Drawings. As part of Phase 1, Design-Builder shall independently verify and confirm the accuracy, completeness, and sufficiency of any documents furnished by City, and shall promptly report in writing to City any error, omission, or insufficiency in such documents that Design-Builder discovers.

C. Unverified Reports and Drawings. For “technical data” in reports and drawings provided to Design-Builder, but not verified during Phase 1, Design-Builder may rely upon the accuracy of the “technical data” contained in such reports and drawings, which were expressly not created or obtained to evaluate or assist in the evaluation of constructability, and are not Contract Documents.

D. Reports and Drawings. Design-Builder shall make its own interpretation of the “technical data” in the reports and drawings and shall be solely responsible for any such interpretations. Except for reliance on the accuracy of such “technical data,” Design-Builder may not rely upon or make any claim against City, City’s Representative, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, with respect to:

1. The completeness of such reports and drawings for Design-Builder’s purposes, including without limitation any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Design-Builder, and safety precautions and programs incident thereto;

2. Other data, interpretations, opinions, conclusions and information contained in such reports or shown or indicated in such drawings; or

3. Any Design-Builder interpretation of or conclusion drawn from any “technical data” or any such other data, interpretations, opinions, or information.

9.4 Ownership of Site Materials Found.

A. The title to water, soil, rock, gravel, sand, minerals, timber and any other materials developed or obtained in the excavation or other operations of Design-Builder or any of its Subcontractors in the performance of the Contract, and the right to use said items in carrying out the Contract, or to dispose of same, is hereby expressly reserved by City. Neither Design-Builder nor any of its Subcontractors nor any of their representatives or employees shall have any right, title, or interest in said materials, nor shall they assert or make any claim thereto. Except as otherwise specified in the Contract Documents, DesignBuilder will, as determined by City, be permitted to use in the Work without charge, any such materials which meet the requirements of the Contract Documents, provided City shall have the right to use or consume these materials without payment to a third party.
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95 9.5 Existence of Utilities at the Work Site.

A. Existing Utilities. The location of known existing utilities and pipelines are shown on the Construction Documents in their approximate locations.

However, nothing herein shall be deemed to require City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the Site of the project can be inferred from the presence of other visible facilities, such as buildings, cleanouts, meter and junction boxes, on or adjacent to the Site of the Project. City will assume the responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project site if such utilities are not identified in the Contract Documents, cannot reasonably be inferred from the presence of other visible facilities, or could not have identified by Design-Builder in its performance of its Phase 1 Services or other contractual responsibilities.

B. Utility Location.

1. Location. It shall be Design-Builder’s responsibility to determine the exact location and depth of all utilities, including service connections, which Design-Builder believes may affect or be affected by Design-Builder’s operations, by taking all reasonable steps necessary including, but not limited to, calling Underground Service Alert to locate utilities in accordance with the procedures described in Government Code 4216 et seq. DesignBuilder shall not be entitled to additional compensation nor time extensions for work necessary to avoid interferences nor for repair to damaged utilities if Design-Builder does not expose all such existing utilities as required by this Article. The locating of utilities shall be in conformance with Government Code section 4216 et seq. except for City’s utilities located on City’s property and not on public right-of-way.

2. Notification. Pursuant to Government Code section 4216.2, Design-Builder shall contact the appropriate regional notification center at least two (2) working days but not more than 14 Days before performing any excavation.

The date of the notification shall not count as part of the two-working-day notice. Before notifying the appropriate regional notification center, DesignBuilder shall delineate the area to be excavated. Design-Builder shall request that the utility owners conduct a utility survey and mark or otherwise indicate the location of their service. Design-Builder shall furnish to the City’s Representative written documentation of its contact(s) with the regional notification center prior to commencing excavation at such locations.

3. Potholing. After the utility survey is completed, Design-Builder shall commence “potholing” or hand digging to determine the actual location of the pipe, duct, or conduit and in accordance with Government Code section 4216.4 if the excavation within the “tolerance zone” of a subsurface installation. A “subsurface installation” is defined in Government Code 471
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96 section 4216 (s) as “any underground pipeline, conduit, duct, wire, or other structure, except non-pressurized sewer lines, non-pressurized storm drains, or other non-pressurized drain lines.” The City’s Representative shall be given notice prior to commencing potholing operations. DesignBuilder shall uncover all piping and conduits, to a point one (1) foot below the pipe, where crossings, interferences, or connections are shown on the Construction Documents, prior to trenching or excavating for any pipe or structures, to determine actual elevations. New pipelines shall be laid to such grade as to clear all existing facilities, which are to remain in service for any period subsequent to the construction of the run of pipe involved.

4. High Priority Subsurface Installation. Design-Builder's attention is directed to the requirements of Government Code section 4216.2 (c) which provides:
“When the excavation is proposed within 10 feet of a high priority subsurface installation, the operator of the high priority subsurface installation shall notify the excavator of the existence of the high priority subsurface installation to set up an onsite meeting prior to the legal excavation start date and time or at a mutually agreed upon time to determine actions or activities required to verify the location and prevent damage to the high priority subsurface installation. As part of the meeting, the excavator shall discuss with the operator the method and tools that will be used during the excavation and the information the operator will provide to assist in verifying the location of the subsurface installation. The excavator shall not begin excavating until after the completion of the onsite meeting.” A “high priority subsurface installation” is defined in Government Code section 4216 (j) as “high-pressure natural gas pipelines with normal operating pressures greater than 415kPA gauge (60psig) or greater than six inches nominal pipe diameter, petroleum pipelines, pressurized sewage pipelines, high-voltage electric supply lines, conductors, or cables that have a potential to ground of greater than or equal to 60kv, or hazardous materials pipelines that are potentially hazardous to workers or the public if damaged.” Design-Builder shall notify the City’s Representative in advance of this meeting.

C. Utility Relocation and Repair. If interferences occur at locations other than those indicated in the Contract Documents with reasonable accuracy, DesignBuilder shall notify the City’s Representative in writing. The City’s Representative will supply a method for correcting said interferences in accordance with the responsibilities of this Article and Government Code section 4215. Care shall be exercised by Design-Builder to prevent damage to adjacent existing facilities and public or private works; where equipment will pass over these obstructions, suitable planking shall be placed. If high priority subsurface installations are damaged and the operator cannot be contacted, Design-Builder shall call 911 emergency services. Temporary or permanent relocation or alteration of utilities desired by Design-Builder for its own convenience shall be Design-Builder’s responsibility and it shall make arrangements and bear all costs for such work.
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97 D. Construction at Existing Utilities. Where the Work to be performed crosses or otherwise interferes with water, sewer, gas, or oil pipelines; buried cable; or other public or private utilities, Design-Builder shall perform construction in such a manner so that no damage will result to either public or private utilities.

It shall be the responsibility of Design-Builder to determine the actual locations of, and make accommodates to maintain, all utilities. Before any utility is taken out of service, permission shall be obtained by Design-Builder from the owner.

The owner, any impacted resident or business owner and City will be advised of the nature and duration of the utility outage as well as Design-Builder’s plan for providing temporary utilities if required by the owner. Design-Builder shall be liable for all damage which may result from its failure to maintain utilities during the progress of the Work, and Design-Builder shall indemnify City as required by the Contract Documents from all claims arising out of or connected with damage to utilities encountered during construction; damages resulting from disruption of service; and injury to persons or damage to property resulting from the negligent, accidental, or intentional breaching of utilities.

9.6 Trenches.

A. Trenches Five Feet or More in Depth. Design-Builder shall submit to City prior to Construction Work, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from hazards of caving ground during the excavation of any trench or trenches five feet or more in depth. If such plan varies from shoring system standards established by the Construction Safety Orders of the California Code of Regulations, Department of Industrial Relations, the plan shall be prepared by a California registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations. Design-Builder shall designate in writing the “competent person” as defined in Title 8, California Code of Regulations, who shall be present at the Site each day that trenching and excavation is in progress. The “competent person” shall prepare and provide daily trenching and excavation inspection reports to the City’s Representative.

Design-Builder shall also submit a copy of its annual California Occupational Safety and Health Administration (Cal/OSHA) trench and excavation permit.

9.7 Differing Site Conditions.

A. Phase 1 Services. Design-Builder shall, during Phase 1, take all measures necessary to determine the conditions of the Site. Design-Builder shall be responsible for any Site conditions that are not as Design-Builder anticipated, and such conditions shall not be considered Differing Site Conditions.

B. Discovery of Differing Site Conditions.
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98 1. If Design-Builder encounters a Differing Site Condition, Design-Builder shall within three (3) Days, and before the Differing Site Condition is further disturbed, notify City in writing of the Differing Site Condition.

2. The written notice from Design-Builder shall describe the specific Differing Site Condition encountered and demonstrate that a Differing Site Condition exists, why Design-Builder could not reasonably have worked around the Differing Site Condition, and how the Differing Site Condition adversely impacted the GMP or Contract Time.

3. City shall promptly investigate the conditions and, if it finds that there is a Differing Site Condition that causes an increase in the GMP or Contract Time, shall issue a Change Order under the procedures described in these General Conditions.

4. In the event that a dispute arises between City and Design-Builder as to whether there is a Differing Site Condition or whether it causes an increase in the GMP or Contract Time, Design-Builder shall not be excused from the GMP or Contract Time, but shall proceed with all Work to be performed under the Contract. Design-Builder shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the Parties.
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99 ARTICLE 10 - PROSECUTION OF THE WORK

10.1 Access to Work.

A. City, Designer of Record, City’s Representative, their consultants and other representatives and personnel, independent testing laboratories, and Governmental Bodies with jurisdictional interests will have access to the Site and Project at reasonable times for their observation, inspection, and testing.

Design-Builder shall provide them proper and safe conditions for such access and advise them of Design-Builder’s safety procedures and programs.

10.2 Construction Quality Assurance, Quality Control.

A. Generally. Design-Builder shall have full responsibility for quality assurance and quality control for the Construction Work, including compliance with the Contract Documents. Without limiting any other requirement hereunder, Design-Builder shall perform quality control inspection and testing services to ensure compliance with the Contract Documents. Sampling and testing of materials, laboratory inspection of materials and processes for quality control purposes shall be performed in compliance with the Contract Documents.

B. Quality Control Plan. Design-Builder shall prepare and submit to City for review and approval a written Quality Control Plan that encompasses all requirements of the Contract Documents with regard to all quality control processes for the Construction Work. The Quality Control Plan shall identify Design-Builder’s overall framework for implementation of its Quality Control programs across all aspects of the Work. Design-Builder shall submit the Quality Control Plan for City’s approval. City’s approval of the overall Quality Control Plan shall be a condition precedent to Design-Builder performing Construction Work. The Technical Specifications provide more detail on what shall be included in the Quality Control Plan.

C. Internal Quality Control Audits. Design-Builder shall establish and maintain documented procedures for planning and implementing internal quality audits to verify whether quality activities and related results comply with planned arrangements and to determine the effectiveness of the quality system. Audits shall be conducted on a planned and scheduled basis, consistent with the importance of the activities being performed. Design-Builder’s management personnel responsible for the relevant area shall take timely corrective action on deficiencies found during the audit. City shall have the right to request and review the audit results. Follow-up audit activities shall verify and record the implementation and effectiveness of the corrective action taken. City may require Design-Builder to perform follow-up audits at City’s sole discretion.

D. Review and Update of QC Plan. Design-Builder shall continuously review the performance of the Quality Control Plan to ensure its continuing suitability in satisfying the requirements of the Contract Documents. Design-Builder’s 475
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reviews shall, at a minimum, review the results of internal audits, City audit results, corrective actions taken, trends in Defective Work, and time to resolution. City may, in its sole discretion, participate in Design-Builder’s reviews and may request data from the reviews. Design-Builder shall incorporate the findings and quality improvement recommendations of DesignBuilder reviews into the Quality Control Plan.

10.3 Design-Builder’s Performance of Services.

A. Means and Methods. Design-Builder is solely responsible for the means and methods utilized to perform Work. Design-Builder shall perform all Work in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Design-Builder warrants that all employees and Subcontractors shall have sufficient skill and experience to perform the Work assigned to them. Design-Builder represents that it, its employees and Subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, and that such licenses and approvals shall be maintained throughout the term of the Contract.

Design-Builder shall perform the Work in full compliance with all Applicable Laws and to all Governmental Bodies having authority over the Project.

B. Design-Builder’s Responsibility for Work. Responsibility for, and security of, all Work and materials related to Design-Builder’s Work is the responsibility of Design-Builder until final acceptance of Design-Builder’s Work by City. City shall not be held responsible for the care or protection of any material or parts of the Work prior to final acceptance. Design-Builder shall take every necessary precaution against injury or damage to any part thereof by the action of the elements or from any cause whether arising from the execution or nonexecution of the Work and all loss or damage shall be borne by Design-Builder.

Design-Builder shall rebuild, repair, restore and make good at its own expense all injuries or damages to any portion of the Work before its completion and acceptance. In the event of damage proximately caused by an Act of God, City will pay for repair or restoration to damaged Work in excess of 5% of the Contract Price unless City has required Design-Builder to obtain insurance to indemnify City for any damage to the Project caused by an Act of God.

C. Layout and Field Engineering. Design-Builder shall utilize a properly licensed surveyor to perform all layout surveys required for the control and completion of the Work and all necessary surveys to compute quantities of Work performed.

10.4 Related Projects; Cooperation.

A. Generally. City reserves the right to let other contracts in connection with this Work or at or adjacent to the Site. Design-Builder acknowledges that City will be undertaking several other projects at and in the vicinity of the Site and, 476
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without limiting any other obligation under the Contract, agrees to reasonably coordinate the Construction Work (including making reasonable adjustments to its construction schedule and activities) to minimize conflicts with the work associated with such other projects in accordance with the Contract Documents.

B. Cooperation. Design-Builder shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by City in prosecution of the Project in the light of such other contracts, if any.

Nothing herein contained shall be interpreted as granting to Design-Builder exclusive occupancy of the Site. Design-Builder shall not cause any unnecessary hindrance or delay to any other contractor working at the Site.

City shall not be responsible for any damages suffered or for extra costs incurred by Design-Builder resulting directly or indirectly from award, performance, or attempted performance of any other contract or contracts on the Site.

C. Coordination Meetings. City intends to have coordination meetings among City, Design-Builder and the various Separate Contractors in an effort to manage the overall program associated with the work being performed at or in the vicinity of the Site and to avoid or mitigate cost and time impacts to the overall Project. Design-Builder agrees that it will attend and participate in these logistics meetings and shall cooperate with City and the Separate Contractors to the extent reasonably necessary for the performance by such Separate Contractors of their work.

D. Equipment and Materials Storage at Site. Design-Builder shall afford City and any Separate Contractors reasonable opportunity for the introduction and storage of their equipment and materials and the execution of their work at and in the vicinity of the Site. Design-Builder shall coordinate with City and any Separate Contractors to store apparatus, materials, supplies and equipment in such orderly fashion at the Site as will not unduly interfere with the progress of the Construction Work or the work of City or any Separate Contractor.

E. Interrelated Work. If part of the Work depends on proper execution of construction or operations by City or a Separate Contractor, Design-Builder shall, prior to proceeding with that portion of the Work, inspect the other work and promptly report to City any apparent discrepancies or defects in the other construction that would render it unsuitable for the proper execution of the Work. Failure of Design-Builder to report apparent discrepancies or defects in the other construction shall constitute acknowledgment that City’s or the Separate Contractor’s completed or partially completed construction is fit and proper to receive the Work.

F. Disputes Associated with Separate Work. If simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, City shall decide which contractor shall cease work 477
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temporarily and which contractor shall continue or whether work can be coordinated so that contractors may proceed simultaneously.

10.5 Traffic Control.

A. Except for as otherwise provided for in the Contract Documents, traffic control plans, if required, shall be prepared by Design-Builder. Traffic control shall be performed by Design-Builder in accordance with the requirements of City or the Governmental Body with jurisdiction over traffic control. Costs for traffic control plans, implementation of traffic control, or traffic signal services required by City shall be included in the GMP. All warning signs and safety devices used by Design-Builder to perform the Work shall conform to the requirements contained in the State of California, Department of Transportation’s current edition of “Manual of Traffic Controls for Construction and Maintenance Work Zones” and to the requirements of the Governmental Body with jurisdiction over traffic control. Design-Builder shall be responsible for all traffic control required by the Governmental Body having jurisdiction over the Project on the intersecting streets. Design-Builder must submit a traffic control plan to the Governmental Body having jurisdiction over the Project for approval prior to starting Work. Design-Builder’s representative on the Site responsible for traffic control shall produce evidence that he or she has completed training acceptable to the California Department of Transportation for safety through construction zones. All of the streets in which the Work will occur shall remain open to traffic and one lane of traffic maintained at all times unless otherwise directed by the Governmental Body having jurisdiction. Businesses and residences adjacent to the Work shall be notified forty-eight (48) hours in advance of closing of driveways. Design-Builder shall make every effort to minimize the amount of public parking temporarily eliminated due to construction in areas fronting businesses. No stockpiles of material will be allowed in traveled rights-of-way after working hours unless otherwise approved by City.

10.6 Record Drawings.

A. Design-Builder shall maintain one record set of Construction Documents at the Site or digitally in an acceptable format. On these, it shall mark all Project conditions, locations, configurations, and any other changes or deviations which may vary from the information represented in the original Construction Documents, including buried or concealed construction and utility features which are revealed during the course of construction. Special attention shall be given to recording the horizontal and vertical location of all buried utilities that differ from the locations indicated, or which were not indicated on the Drawings.

If Work involves the installation of pipelines, Design-Builder shall survey and record the top of the pipe at a minimum of every 100 linear feet, and at each bend, recording both the horizontal and vertical locations. Drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed. Any required as-built drawings of 478
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civil engineering elements of the Work shall be prepared by a registered civil engineer. These master Record Drawings of the as-built conditions, including all revisions made necessary by Change Orders, shall be maintained up-todate during the progress of the Project. Red ink shall be used for alterations and notes. Notes shall identify relevant Change Orders by number and date.

Record Drawings shall be accessible to the City’s Representative at all times during the construction period. Failure on Design-Builder’s part to keep Record Drawings current could result in withholding partial payment to Design-Builder.

As a condition of Final Completion, Design-Builder shall finalize and deliver a complete set of Record Drawings to City’s Representative. The information submitted by Design-Builder will be assumed to be correct, and Design-Builder shall be responsible for, and liable to City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the Record Drawings.

10.7 Defective Work.

A. Correction of Defective Work.

1. Failure to Correct. If Design-Builder fails to correct Defective Work, remove and replace rejected Work as required by City, or fails to perform the Work in accordance with the Contract Documents, City may, after seven (7) Days written notice to Design-Builder, correct, or remedy any such deficiency if Design-Builder has failed to schedule or commence correcting such deficient Work.

2. Correction of Work by City. In connection with such corrective or remedial action, City may exclude Design-Builder from all or part of the Site, take possession of all or part of the Work and suspend Design-Builder’s services related thereto, take possession of Design-Builder’s tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which City has paid Design-Builder but which are stored elsewhere. Design-Builder shall allow City, and the agents, employees, other contractors, and consultants of each of them, access to the Site to enable City to exercise the rights and remedies to correct the Defective Work.

3. Costs of Correcting Defective Work. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or other dispute resolution costs) incurred or sustained by City correcting the Defective Work will be charged against Design-Builder, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and City shall be entitled to reimbursement of the costs from Design-Builder. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Defective 479
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Work. If the Change Order is executed after all payments under the Contract have been paid by City and the Project retention is held in an escrow account as permitted by the Contract Documents, Design-Builder will promptly alert the escrow holder, in writing, of the amount of retention to be paid to City. Design-Builder shall not be allowed an extension of Contract Time because of any delay in the performance of the Work attributable to City correcting Defective Work.

B. Acceptance of Defective Work. If, instead of requiring correction or removal and replacement of Defective Work, City prefers to accept it, City may do so.

Design-Builder shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or other dispute resolution costs) attributable to City’s evaluation of and determination to accept the Defective Work and for the diminished value of the Work. A Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and City shall be entitled to an appropriate decrease in the GMP, reflecting the diminished value of Work, and reimbursement of all costs incurred by City.

10.8 Partial Utilization.

A. Use by City, at City’s option, of any part of the Project which (a) has specifically been identified in the Contract Documents or (b) constitutes a separately functioning and usable part of the Project that can be used by City for its intended purpose without significant interference with Design-Builder’s performance of the remainder of the Work, may be accomplished prior to Final Completion. This use shall not relieve Design-Builder of its responsibilities under the Contract. Partial utilization of the Project shall not be deemed an acceptance of any Work not conforming to the requirements of the Contract Documents, unless specifically accepted in writing by City, and this use shall not relieve Design-Builder of its responsibilities under the Contract. 480
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ARTICLE 11 - SCHEDULE; CONTRACT TIME

11.1 Progress and Completion.

A. Design-Builder shall proceed expeditiously with adequate forces and shall achieve full completion of the Work within the Contract Time. If City’s Representative determines and notifies Design-Builder that Design-Builder’s progress is such that Design-Builder will not achieve full completion of the Work within the Contract Time, Design-Builder shall immediately and at no additional cost to City, take all measures necessary, including working such overtime, additional shifts, Sundays, or holidays as may be required to ensure that the entire Project is completed within the Contract Time. Upon receipt of such notice from City’s representative, Design-Builder shall immediately notify City’s Representative of all measures to be taken to ensure full completion of the Work within the Contract Time. Design-Builder shall reimburse City for any extra costs or expenses (including the reasonable value of any services provided by City’s employees) incurred by City as the result of such measures.

11.2 Time for Completion.

A. Completing Work. Design-Builder shall complete all or any designated portion of the Work called for under the Contract in all parts and requirements within the Contract Time. If, at any time Design-Builder’s Critical Path Work progress falls behind schedule, City reserves the right to require Design-Builder to work overtime to bring the Project back on schedule. Such overtime shall be at the Design-Builder’s expense. Design-Builder shall furnish City’s Representative a monthly statement showing the following:

1. Number of days originally specified for completion;

2. Number of days charged to date;

3. Number of days of time extensions approved;

4. Number of days remaining to completion; and

5. Revised date for completion.

B. Time for Completion. The Contract Time shall commence: (1) on the date stated in the Notice to Proceed, or (2) if the Notice to Proceed does not specify a commencement date, then on the date of the Notice to Proceed and, in both cases, shall be completed within the Contract Time. City is under no obligation to consider early completion of the Work and Contract Time shall not be amended by City’s receipt or acceptance of Design-Builder’s proposed earlier completion date. Any difference in time between Design-Builder’s early completion and the Contract Time shall be considered a part of the Project float.

Design-Builder shall not be entitled to compensation, and City will not compensate Design-Builder, for delays which impact early completion. Design481 Contract No. _____________
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Builder shall not, under any circumstances, receive additional compensation from City (including but not limited to direct, indirect, general, administrative, or other forms of overhead costs) for the period between the time of earlier completion proposed by Design-Builder and the Contract Time.

11.3 Extension of Time for Completion.

A. Procedure for Extension of Contract Time and Delay Damages. Design-Builder shall not be entitled to any extension of Contract Time or adjustment to the GMP for delay damages unless Design-Builder properly notices the delay and requests a Change Order in accordance with these General Conditions.

Design-Builder’s failure to timely and fully comply with the Change Order procedures in the Contract Documents shall constitute a waiver of DesignBuilder’s right to an extension of Contract Time or adjustment to the GMP for delay damages.

B. Extension of Time.

1. City-Caused Extension of Time. Design-Builder’s entitlement to an extension of Contract Time for an City-caused delay shall only be allowed when, and then only to the extent that, the City-caused delay extends the Critical Path beyond the Contract Time. The delay to the Critical Path must be established by a proper time impact analysis. City shall ascertain the facts and extent of delay and grant extension of time for completing the Work when, in its judgment, the facts justify such an extension. DesignBuilder shall not be entitled to an adjustment of Contract Time for delays within the control of Design-Builder. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Design-Builder. If approved, the increase in time required to complete Work shall be added to the Contract Time.

2. Concurrent Delay. In the event of Concurrent Delay, the Contract Time may be extended, as determined by City, however, such delay is noncompensable and the GMP shall not be adjusted.

3. Inclement Weather. Design-Builder shall abide by City’s determination of what constitutes inclement weather. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the Critical Path of the applicable CPM Schedule.

4. Utility-Related Delays. If a delay to the Critical Path results from acts of public utilities or delays caused by failure of a public agency or owner of a utility to provide for removal or relocation of existing main or trunkline utility facilities or other known utility facilities, Design-Builder will be entitled to a time extension, but will not receive an adjustment to the GMP or any other compensation.
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5. Force Majeure. If a delay to the Critical Path results from a Force Majeure Event, Design-Builder will be entitled to a time extension, but will not receive an adjustment to the GMP or any other compensation. Such a noncompensable adjustment shall be Design-Builder’s sole and exclusive remedy for a Force Majeure Event.

C. No Damages for Reasonable Delay.

1. City’s liability to Design-Builder for delays for which City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall City be liable for any costs which are borne by Design-Builder in the regular course of business, including, but not limited to, home office overhead and other ongoing costs.

2. Damages caused by unreasonable City delay shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages. This includes the following allowable costs:
a. Those actual necessary costs of idle time of construction equipment, idle time of workers, moving of construction equipment, and hauling of materials and equipment which are incurred solely by reason of the delay and which could not have been avoided by the judicious handling of forces, construction equipment and plant;
b. General Conditions Cost that are incurred solely by reason of the delay and extension of the Critical Path; and
c. Design-Builder’s Self-Performance Fee and Design-Builder’s Subcontractor Fee, as applicable, on the costs allowed above.

11.4 Liquidated Damages.

A. Liquidated Damages. Time is of the essence. If the Work is not completed within Contract Time, it is understood that City will suffer damage. In accordance with Government Code section 53069.85 and Public Contract Code section 7102, being impractical and infeasible to determine the amount of actual damage, it is agreed that Design-Builder shall pay to City as fixed and liquidated damages, and not as a penalty, the sum stipulated in the Contract or the GMP Amendment for each calendar day of delay until the Work is fully completed. Design-Builder and its surety shall be liable for any liquidated damages. Any money due or to become due Design-Builder may be retained to cover liquidated damages.

B. Guaranteed Completion Date. Design-Builder agrees that it shall be liable to City for liquidated damages in an amount determined in the GMP Amendment for each and every calendar day beyond the Guaranteed 483
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Completion Date that Final Completion has not been achieved for the Project.

C. Milestone Date. Design-Builder agrees that it shall be liable to City for liquidated damages in an amount determined in the GMP Amendment for each and every calendar day beyond a Milestone Date where Final Completion has not been achieved.

11.5 Schedule.

A. General Requirements. Except as otherwise specifically stated in the Contract Documents, this Article will apply to a CPM Schedule for the Work. The CPM Schedule shall be prepared in an electronic scheduling program acceptable to City and as specified in the Contract Documents. Design-Builder shall deliver the CPM Schedule and all updates to City in both paper and electronic form.

The electronic versions shall be in the format, and include all data used, to prepare the CPM Schedule.

B. Schedule. The receipt or approval of any CPM Schedule by City shall not in any way relieve Design-Builder of its obligations under the Contract Documents. Design-Builder is fully responsible to determine and provide for any and all staffing and resources at levels which allow for good quality and timely completion of the Project. Design-Builder’s failure to incorporate all elements of Work required for the performance of the Contract or any inaccuracy in the CPM Schedule shall not excuse Design-Builder from performing Work required within the specified Contract Time. If the required CPM Schedule is not received by the time the first payment under the Contract is due, Design-Builder shall not be paid until the CPM Schedule is received, reviewed, and accepted by City.

C. Schedule Contents. The CPM Schedule shall be cost-loaded, indicating the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and “float time” for all “slack” or “gaps” in the non-critical activities. The CPM Schedule shall include appropriate time allowances and constraints for Submittals, items of interface with Work performed by others, and specified construction, start-up and performance tests. All float shall be owned by the Project. CPM Schedules indicating early or late completion shall not modify or have any effect on the Contract Time, regardless of whether the schedules are reviewed and/or accepted by City.

D. Schedule Updates. Design-Builder shall continuously update its CPM Schedule. Design-Builder shall submit an updated and accurate CPM Schedule to City: (1) prior to the start of construction, if there are any changes to the initial schedule; (2) with each progress payment request; and (3) whenever requested to do so by City. City may withhold progress payments or other amounts due under the Contract Documents if Design-Builder fails to 484
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submit an updated and accurate CPM Schedule. Upon City’s request, DesignBuilder shall submit any schedules or updates to City in the native electronic format of the software used to create the CPM Schedule.

E. Three-Week Look-Ahead Schedules. Design-Builder shall submit a three-week detailed look-ahead schedule at weekly meetings conducted with City. The three-week look-ahead schedule shall clearly identify all staffing and other resources which in Design-Builder’s judgment are needed to complete the Work within the Contract Time, and it shall clearly state the number of staff to be used on each daily segment of the Work.

F. Acceptance. Acceptance of the CPM Schedule by City will not impose on responsibility for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with the Contract Documents. Acceptance will not interfere with or relieve Design-Builder from Design-Builder’s full responsibility therefor.
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ARTICLE 12 - CHANGE IN CONTRACT PRICE; CHANGE IN CONTRACT TIMES

12.1 Phase 1 Changes.

A. Additional Phase 1 Services. City may direct Design-Builder to perform additional Phase 1 Services that City determines to be necessary for the proper completion of Phase 1, which the Parties did not reasonably anticipate would be necessary at execution of the Contract. Additional Phase 1 Services will be compensated at the rates set forth in Design-Builder’s Cost Proposal Form, subject to adjustment as allowed by the Contract Documents. Design-Builder shall not be entitled to a mark-up on the rates set forth in Design-Builder’s Cost Proposal Form for additional Phase 1 Services. If rates (i.e. hourly or unit rates) for additional Phase 1 Services are not identified in Design-Builder’s Cost Proposal Form, City will pay for additional Phase 1 Services at a mutually agreeable rate between the Parties based on current market rates.

B. Excusable Delay. Design-Builder may request additional time to complete a task or submittal milestone only in the event of an excusable delay. For purposes of this Article, an excusable delay is a delay only to the completion of a Phase 1 Service and caused by the following: (i) the actions of City or its employees; (ii) the actions of those in direct contractual relationship with City, except for Design-Builder; (iii) the actions of any Governmental Body having jurisdiction over the Project acting in their role as an authority having jurisdiction that Design-Builder had no control over; (iv) the actions of any parties not within the reasonable control of Design-Builder; or (v) a Force Majeure Event. DesignBuilder shall not be entitled to any damages or costs resulting from an excusable delay.

C. Change Order Procedures.

1. An increase to the Phase 1 Fee and/or extensions of time for the performance of Phase 1 Services must be approved through a Change Order. If Design-Builder determines it is entitled to a Change Order, DesignBuilder must request a Change Order within five (5) Days of a directive from City to perform additional Phase 1 Services or of the event otherwise giving rise to the change.

2. To increase the Phase 1 Fee, Design-Builder's request for a Change Order shall include documentation supporting the need for the request and a cost proposal for the additional Phase 1 that shows the applicable rates and provides a fair estimate of the amount of work needed to complete the additional Phase 1 Services. City may request that Design-Builder propose other options or efficiencies, including de-scoping a portion of the additional Phase 1 Services.

3. To receive an extension of time for the performance of Phase 1 Services, Design-Builder's request shall include documentation supporting the need 486
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for the request, and a time impact analysis showing the impact of the extension on completion of the Phase 1 Services, as well as the impact on potential Work and on the Work as a whole. The time impact analysis shall include options to mitigate the impact to the Critical Path of the Phase 1 Services, including the commencement of Phase 2. The request shall be limited to only the amount of time that is reasonably necessary for DesignBuilder to complete the additional Phase 1 Services. An extension of time shall be a last resort, and shall only be granted if, and to the extent that, Design-Builder cannot reasonably complete the Phase 1 Services on time, including by expediting the Phase 1 Services, at no additional cost to City.

4. If additional Phase 1 Services also result in an excusable delay, DesignBuilder shall request an increase to the Phase 1 Fee and an extension of time concurrently.

D. Exclusions from Additional Phase 1 Services. Additional Phase 1 Services shall not include work or services necessary because of negligent errors, omissions or conflicts of any type in Design-Builder’s performance of Phase 1 Services. This includes, but is not limited to, any redesign or revisions to Drawings, Technical Specifications or other documents required to complete the original scope of work that are: (i) an ordinary part of the design development and review process, including constructability and value engineering review, or (ii) necessary in order to bring such documents into compliance with Applicable Law of which Design-Builder was aware or should have been aware. All such work or services shall constitute Phase 1 Services and shall be performed at no cost to City.

E. Reduction of Phase 1 Services. Design-Builder shall have the right to reduce the scope of Phase 1 Services at any time by written notice to Design-Builder.

Changes to Phase 1 Services that reduce the scope of Phase 1 Services shall be effective upon the delivery of the written notice by City pursuant to this Article. Any reduction in the scope of Phase 1 Services shall result in an appropriate reduction in the Phase 1 Fee, which shall be reflected in a Change Order.

12.2 Phase 2 Changes.

A. Change Orders Generally.

1. All changes to the Contract, including compensation increases and time extensions, shall be through a written Change Order in accordance with this Article. City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, and DesignBuilder’s compensation and the time for completion shall be adjusted accordingly. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions, and provisions of the 487
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original Contract. Design-Builder shall not be entitled to a claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. No dispute, disagreement, or failure of the parties to reach agreement on the terms of the Change Order shall relieve Design-Builder from the obligation to proceed with performance of the Work, including Additional Work, promptly and expeditiously. Any alterations, extensions of time, Additional Work, or any other changes may be made without securing consent of DesignBuilder’s surety or sureties.

2. Design-Builder agrees that one of the purposes of progressive design-build services is to minimize the risk for Change Orders and Change Orders shall be strictly limited. Change Order Requests shall be kept to a minimum. This Article shall continue to apply regardless of whether the Parties continue to utilize a GMP for Construction Work or agree to convert the GMP to a Lump Sum Price.

3. Subject to City approval, the GMP shall not be modified except in the event of the following circumstances: (a) City directs and authorizes a change which is related solely to discretionary changes by City (the foregoing excludes changes resulting from the acts, omissions or other conduct of Design-Builder); (b) Differing Site Conditions; (c) changes directed by a Governmental Body with jurisdiction over the Project, or portions thereof, which could not be reasonably foreseen or anticipated by Design-Builder at the execution of the GMP Amendment; (d) changes necessitated by amendment(s) to or enactment(s) of Applicable Laws which could not be reasonably anticipated or foreseen by Design-Builder at the at the execution of the GMP Amendment; (e) changes resulting from emergencies not caused, in whole or in part, by the acts, omissions or other conduct of Design-Builder or its Subcontractors, employees, agents or representatives; or (f) where expressly allowed by the Contract Documents.

4. Design-Builder has no right to a Change Order for a time extension, extra work, or other costs of any kind whatsoever (including, without limitation, direct and indirect costs, delay and disruption damages, overhead, profit or mark-up) resulting from issues related to, among other things, the following:
costs that result from Phase 1 Services or that Design-Builder otherwise should have foreseen prior to proposing and agreeing to the GMP; design defects or ambiguities; Site conditions that Design-Builder could have foreseen or discovered prior to Construction Work; constructability issues, including but not limited to construction feasibility, schedule or cost; or where Design-Builder failed to recommend alternative solutions as part of their Phase 1 Services.

5. Design-Builder shall not be entitled to an increase to the GMP if it contains any contingency or allowances for the costs, which must be utilized and 488
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exhausted prior to requesting a Change Order. Design-Builder may only increase the GMP through a duly requested and approved Change Order.

B. Contract Change Order Procedures.

1. City Written Directive. City may direct changes in the Work by delivering a written directive. To the extent the written directive results in a change to compensation or time, Design-Builder must timely request a Change Order and comply with all Change Order procedures in accordance with this Article. Notwithstanding issuance of a written directive, Design-Builder’s failure to timely request a Change Order shall constitute a waiver by DesignBuilder of any adjustment to compensation or time extension for Work performed under the directive. City shall not be liable to Design-Builder for Work performed or omitted by Design-Builder in reliance on verbal orders.

City shall have the right to order changes in the Work by a unilateral Change Order setting forth City’s determination of the reasonable additions or savings in the GMP or Contract Time.

2. Design-Builder’s Notice of Change or Delay.
a. If Design-Builder intends to initiate a Change Order Request, Design-Builder shall provide City with written notice of the underlying facts and circumstances that gave rise to the proposed change within the following times:
(i) If due to Differing Site Conditions, as soon as reasonably practicable under the conditions, which shall be no longer than three (3) Days from the discovery date or prior to the alterations of the conditions, whichever is earlier.
(ii) If due to a Force Majeure Event, as soon as reasonably practicable under the conditions, but in no case longer than three (3) Days from the date Design-Builder discovers that the Force Majeure Event gives rise to a change, unless that the conditions are such that notice within three (3) Days is not possible or practicable.
(iii) If due to any other matter that may involve an adjustment to the GMP or Contract Time, as soon as reasonably practicable under the conditions, but in no case longer than seven (7) Days from the early of the discovery date of the matter or when the matter should have been discovered.
b. To be considered valid and complete, the notice of change or delay shall include a general statement of the circumstances giving rise to the notice of change/delay and a reasonable order of magnitude estimate of the additional costs or time. If the circumstances give rise 489
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to both a cost adjustment and time extension, Design-Builder shall submit the notice of change and notice of delay concurrently.

3. Change Order Request.
a. Design-Builder shall submit a Change Order Request for any adjustment to a GMP or Contract Time. The Change Order Request shall be made prior to incurring any expense and within fourteen (14) Days from either Design-Builder’s notice of change or delay or City’s written directive ordering the change. For any costs or information that cannot be determined at the time Design-Builder submits a Change Order Request, Design-Builder shall submit to City notice of the costs or information and all supporting documentation within five (5) Days of when the costs or other information become subject to determination. The Change Order Request shall include all of the following information (unless inapplicable to the change or delay):
(i) A detailed description of the circumstances giving rise to the request;
(ii) A complete itemized cost proposal, including itemized pricing for Subcontractors;
(iii) Supporting documentation for all costs;
(iv) A time impact analysis showing the impact of the delay to the Critical Path of the Work;
(v) If any costs or information cannot be determined at the time of the Change Order Request, a rough order of magnitude of the Change Order costs and the reason the costs or information cannot be determined at the time; and
(vi) Certification to the accuracy of the Change Order Request under penalty of perjury
b. The time impact analysis shall be in the Critical Path method format and shall show the sequencing of all critical and non-critical new activities and/or activity revisions affected by the delay, with logic ties to all affected existing activities noted on the schedule. City may demand, and Design-Builder shall provide, any additional information supporting the Change Order Request, including but not limited to native electronic format version of schedules and time impact analyses. Design-Builder shall provide the requested additional information within five (5) Days of the request.

4. City’s Final Decision on Change Order; Ordered Changes. If City denies the Change Order Request or disagrees with the proposal submitted by 490
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Design-Builder, it will notify Design-Builder, and City will provide its opinion of the appropriate price or time extension. If no agreement can be reached, City shall have the right in its sole discretion to order the Work performed, to the extent permitted by law, on a time and materials basis or to issue a unilateral Change Order setting forth City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. City’s determination shall become final and binding if Design-Builder fails to submit a claim in writing in accordance with the General Conditions to City within fourteen (14) Days of denying the Change Order Request, or for the issuance of a unilateral Change Order, disputing the terms of the unilateral Change Order and providing such supporting documentation for its position as City may reasonably require.

5. Design-Builder’s Waiver of Further Relief.
a. Design-Builder recognizes and acknowledges that timely submission of a formal written notice of change or delay and Change Order Request, whether or not the circumstances of the change may be known to City or available to City through other means, is not a mere formality but is of crucial importance to the ability of City to promptly identify, prioritize, evaluate and mitigate the potential effects of changes. Any form of informal notice, whether verbal or written (including, without limitation, statements in requests for information, statements in Submittals, statements at any job meeting or entries on monthly reports, daily logs or job meeting minutes), that does not strictly comply with the formal requirements of this Article, shall accordingly be insufficient.
b. DESIGN-BUILDER’S FAILURE TO PROVIDE A COMPLETE AND

TIMELY NOTICE OF CHANGE OR DELAY, CHANGE ORDER

REQUEST, NOTICE DISPUTING A UNILATERAL CHANGE

ORDER, OR TO COMPLY WITH ANY OTHER REQUIREMENT OF
THIS ARTICLE, SHALL CONSTITUTE A WAIVER BY DESIGNBUILDER OF THE RIGHT TO A GMP ADJUSTMENT ON

ACCOUNT OF SUCH CIRCUMSTANCES AND A WAIVER OF

ANY RIGHT TO FURTHER RECOURSE OR RECOVERY BY

REASON OF OR RELATED TO SUCH CHANGE BY MEANS OF

THE CLAIMS DISPUTE RESOLUTION PROCESS OR BY ANY

OTHER LEGAL PROCESS OTHERWISE PROVIDED FOR
UNDER APPLICABLE LAWS.

C. Change Order Format. A Change Order signed by Design-Builder indicates Design-Builder's agreement therewith, including any adjustment in compensation or extension of time, and the full and final settlement of all costs (direct, indirect and overhead) related to the Work authorized by the Change Order. City may designate the forms to be used for notices, requests, and Change Orders. If so designated, Design-Builder may only use such forms. 491
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Design-Builder shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the Change Order. No claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/or clarifications.

Design-Builder may not change or modify City’s Change Order form in an attempt to reserve additional rights.

Palm Desert City CouncilSeptember 10, 2026

Palm Desert City Council
September 10, 2026