Revised: 2.9.22
AMENDMENT NO. 1 TO AGREEMENT A9082
EQUIPMENT RENTAL SERVICES
SOURCEWELL CONTRACT 062320-URI
BETWEEN THE CITY PALM SPRINGS AND UNITED RENTAL (NORTH
AMERICA), INC.
1. Parties and Date.
This Amendment No. 1 to Agreement No. A9082 is made and entered into as of this 8th day of June, 2022 , by and between the City of Palm Springs (“City”) and United Rental s (N orth America), Inc., a Delaware corporation , ( “Corporation”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. The City and Contractor have entered into an agreement entitled “Agreement A9082, Equipment Rental Services” dated April 6, 2022 (“Agreement”) for the purpose of retaining the services of Contractor to provide equipment rental services.
2.2 Amendment. The City and Contractor desire to amend the Agreement to add $50,000 for a new not to exceed of $75,000.00.
2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Section 3.3 of the Agreement.
3. Terms.
3.1 Compensation of Contractor. Section 3.1 of the Agreement is hereby amended in its entirety to read as follows:
“Contractor shall be compensated and reimbursed f or the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount to Compensation shall not exceed $75,000.00.”
3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1.
3.3 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. 1.
3.4 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or DocuSign Envelope ID: 6BF7D0FF-5950-44C7-85F6-7FB025801F5E Item 1K - Page 101
Revised: 2.9.22
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: 6BF7D0FF-5950-44C7-85F6-7FB025801F5E Item 1K - Page 102
Revised: 2.9.22
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND UNITED RENTAL (NORTH AMERICA), INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: N/A Item No. N/A
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
DocuSign Envelope ID: 6BF7D0FF-5950-44C7-85F6-7FB025801F5E 6/8/2022
6/14/2022
6/15/2022
Item 1K - Page 103
ATTACHMENT E
Item 1K - Page 104
CONTRACT ABSTRACT
2 Originals: Agreement; 1 Original: Performance & Payment Bond and Insurance Contract
Company Name:
Company Contact:
Summary of Services:
Contract Price:
Funding Source:
Contract Term:
United Rental (North America), Inc.
Nathan Getz, Strategic Account Manager
Equipment Rental Services - Sourcewell 062320-URI
$75,000 + $225,000 = $300,000
Facilities: 5206570-40105; Aviation: 4157030-50105
April 6, 2022 through April 5, 2023 August 27, 2024
Contract Administration
Lead Department:
Contract Administrator:
Facilities Maintenance
Daniel Martinez
Contract Approvals
Council Approval:
Resolution Number:
Agreement Number:
11/28/2022
1G
A9082
Contract Compliance
Exhibits:
Signatures:
Insurance:
Bonds:
Y es
Yes
Yes
N/A
Contract Prepared By: Procurement and Contracting
S
ubmitted on: October 20, 2022 By: Brian Sotak-Rossman DocuSign Envelope ID: 439BE144-5D06-481F-9DE1-21708702180E Item 1K - Page 105
Revised: 2.9.22
AMENDMENT NO. 2 TO AGREEMENT A9082
EQUIPMENT RENTAL SERVICES
SOURCEWELL CONTRACT 062320-URI
BETWEEN THE CITY PALM SPRINGS AND UNITED RENTAL (NORTH
AMERICA), INC.
1. Parties and Date.
This Amendment No. 2 to Agreement No. A9082 is made and entered into as of this 28 th day
of November, 2022, by and between the City of Palm Springs (“City”) and United Rentals (North America), Inc., a Delaware corporation , ( “Corporation”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. T he City and Contractor have entered into an agreement entitled “Agreement A9082, Equipment Rental Services” dated April 6, 2022 (“Agreement”) for the purpose of retaining the services of Contractor to provide equipment rental services.
2.2 Amendment No.1. On June 8, 2022, Parties entered into Amendment No. 1 to add $50,000 for a new not to exceed amount of $75,000.
2.3 Amendment No.2. T he City and Contrac tor desire to amend the A greement to add $225,000 for a new not to exceed of $300,000.00 and extend the term through August 27, 2024.
2.4 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section 3.3 of the Agreement.
3. Terms.
3.1 Compensation of Contractor. Section 3.1 of the Agreement is hereby amended in its entirety to read as follows:
“Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount to Compensation shall not exceed $300,000.00.”
3.2 Term. Section 4.4 of the Agreement is hereby amende d in its entirety to read as follows:
“Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of two years, commencing on April 6, 2022, and ending on August 27, 2024, unless extended by mutual written agreement of the Parties.
DocuSign Envelope ID: 439BE144-5D06-481F-9DE1-21708702180E Item 1K - Page 106
Revised: 2.9.22
3.3 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. 1, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.
3.4 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.
3.5 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.6 Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: 439BE144-5D06-481F-9DE1-21708702180E Item 1K - Page 107
Revised: 2.9.22
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND UNITED RENTAL (NORTH AMERICA), INC.
IN WITNESS WHEREOF, the P arties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: 11/28/2022 Item No. 1G
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
DocuSign Envelope ID: 439BE144-5D06-481F-9DE1-21708702180E 12/1/2022
12/1/2022
12/7/2022
Item 1K - Page 108
CITY COUNCIL STAFF REPORT
DATE: MARCH 14, 2024 CONSENT CALENDAR
SUBJECT: APPROVE AMENDMENT NO. 1 TO AGREEMENT A9079 WITH AJ
FISTES CORPORATION FOR PAINTING AND WALLCOVERING
SERVICES
FROM: Scott C. Stiles, City Manager
BY: David McAbee, Director of Public Works
SUMMARY:
This action will approve Amendment No. 1 to Agreement A9079 with AJ Fistes Corporation for painting and wallcovering services in the amount of $1 00,000, for a revised contract amount not to exceed $400,000.
RECOMMENDATION:
1. Approve Amendment No. 1 to Agreement A9079 ( Attachment A) with AJ Fistes Corporation, to provide painting and wallcovering services for an additional amount of $100,000, for a total revised contract amount not to exceed $40 0,000 through April 10, 2025.
2. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form (Attachment B), submitted on March 3, 2022, AJ Fistes Corporation, is registered in the state of California.
BACKGROUND:
An Invitation for Bids (IFB 22-12 ) was initiated by the City’s Procurement & Contracting Department on February 7, 2022, based on Public Works specifications. On April 7, 2022, City Council awarded a Contract Service Agreement A9079 , Attachment C , with AJ Fistes Corporation, for a three- year term in the amount of $300,000 effective April 11 , 2022, through April 10 , 2025, subject to two one- year optional extensions at mutual consent of the parties.
Item 1L - Page 1
City Council Staff Report
March 14, 2024 -- Page 2
Amend Painting and Wallcovering Services Contract
STAFF ANALYSIS:
The Public Works Department has painting and wallcovering services scheduled for various City facilities that total approximately $300,000 as follows:
• Airport $ 36,000
• City Hall $ 11,000
• City Yard $ 64,000
• Human Resources/Fire Administration $ 12,000
• Finance $ 10,000
• Leisure Center $ 22,000
• Pavilion $ 31,000
• Palm Springs Stadium $100,000
• Swim Center $ 14,000
Increasing the contract to a not -to-exceed amount of $400,000 through April 10, 2025, will allow for current and future as-needed painting and wallcovering service needs to be met.
Therefore, staff is requesting approval of Amendment No. 1 in the amount of $100,000 to add sufficient funding for current and future planned painting and wallcovering services at various City facilities. This Amendment No. 1 will provide for a revised contract amount not to exceed $400,000 through April 10, 2025, for these needed services.
ENVIRONMENTAL ASSESSMENT
:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for t he above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
Approval of this action supports City Council priority 2, Community Infrastructure.
FISCAL IMPACT:
Sufficient funds are budgeted and available in Fiscal Year 2023- 24 and 2024- 25 in Facilities Maintenance Accounts 5206570-40105 and 5206570-50119.
Item 1L - Page 2
City Council Staff Report
March 14, 2024 -- Page 3
Amend Painting and Wallcovering Services Contract
REVIEWED BY:
Assistant Director of Maintenance and Facilities: Daniel Martinez Director of Public Works: David McAbee
Director of Procurement and Contracting: Kim Baker
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. Amendment No.1 A9079
B. Public Integrity Disclosure
C. Contract Service Agreement No. A9079
Item 1L - Page 3
ATTACHMENT A
Item 1L - Page 4
AMENDMENT NO. 1 TO CONTRACT SERVICES AGREEMENT NO. A9079
PAINTING AND WALLCOVERING SERVICES
This Amendment No. 1 to the Contract Services Agreement ( A9079), (“Amendment No. 1”), is made and entered into this 18th day of March, 2024, by and between the City of Palm Springs, a California charter city and municipal corporation, hereinafter designated as the City, and AJ Fistes Corporation, a California corporation, hereinafter designated as the Contractor. City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City has determined that there is a need for a license d painting contractor, for painting and wallcovering services at various city facilities.
B. City issued an Invitation for Bid (“IFB”) No. 22-12 , seeking sealed bids to provide painting and wallcovering services, and setting for the terms, conditions, and covenants governing the provision of such services.
C. On April 7, 2022, City Council approved a Contract Services Agreement ( A9079) with Contractor to provide painting and wallcovering services , for a total contract amount of $300,000.
D. City desires to modify the contract amount to add $1 00,000, for a total revised contract amount not to exceed $400,000.
E. Contractor desires to perform said services on the terms and conditions set forth in this Amendment.
In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows:
AGREEMENT
SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Third Amendment.
Item 1L - Page 5
SECTION 2. 3.1. Compensation and Payment. is hereby replaced in its entirety as follows:
“3.1. Compensation and Payment. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $400,000.
SECTION 3. Full Force and Effect. All terms, conditions, and provisions of the Contract Services Agreement A9079, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 1 and any provisions of the Contract Services Agreement A9079, the provisions of this Amendment No. 1 shall in all respects govern and control.
SECTION 4. The persons executing this Amendment No. 1 on behalf of the Parties hereto warrant that (I) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this Amendment No. 1 , such party is formally bound to the provisions of this Amendment No. 1, and (iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement to which said Party is bound.
Except as specifically amended by this Amendment No. 1, all terms and provisions of Agreement No. A9079 remain in full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
Item 1L - Page 6
SIGNATURE PAGE TO AMENDMENT NO. 1 (A9079) BY AND BETWEEN THE CITY OF
PALM SPRINGS AND AJ FISTES CORPORATION
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By:___________________________ By:____________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By:
City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1L - Page 7
ATTACHMENT B
Item 1L - Page 8
Item 1L - Page 9
1. 2.
3. 4.
5. Name of Entity
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
AJ FISTES CORPORATION
Address of Entity (Principal Place of Business)
1244 N GAFFEY ST. SAN PEDRO CA 90731
Local or California Address (if different than #2)
CALIFORNIA
State where Entity is Registered with Secretary of State CI-J ti Ft?(2l✓l4
If other than California, is the Entity also registered in California? D Yes D No Type of Entity
IX! Corporation D Limited Liability Company D Partnership D Trust D Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
ANASTASIOS FISTES 1K] Officer D Director D Member Ii] Manager [name] D General Partner D Limited Partner
Other
JACOB FISTES Ix] Officer D Director D Member Ix] Manager [name] D General Partner D Limited Partner
D Other
NIKI FISTES ~ Officer D Director D Member D Manager
[name] D General Partner D Limited Partner
Other
Item 1L - Page 10
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE 50%, ABC COMPANY, Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
A.
ANASTASIOS FISTES Ao% AJ FISTES CORPORATION
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.
JACOB FISTES ~ 0% AJ FISTES CORPORATION
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
-4 0 % 6 :) f:?1!.~~~ Gv,0124f1c>"' l>t kJ "P1 q. "i"E::!a [name of owner/investor] [pefuentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDE PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing arty, Printed Name, Title
ANASTAIOS FISTES - RESIDENT
Date
ATTACHMENT C
Item 1L - Page 11
CONTRACT ABSTRACT
2 Originals: Agreement; 1 Original: Performance & Payment Bond and Insurance Contract
Company Name:
Company Contact:
Summary of Services:
Contract Price:
Funding Source:
Contract Term:
AJ Fistes Corporation
Anastasios Fistes, President
Painting and Wallcovering Services
$300,000
Facilities: 5206570-50105 / Airport: 4157050-40105
April 11, 2022 through April 10, 2025
Contract Administration
Lead Department:
Contract Administrator:
Facilities Maintenance
Staci Schafer
Contract Approvals
Council Approval:
Resolution Number:
Agreement Number:
4/7/2022
1J
A9079
Contract Compliance
Exhibits:
Signatures:
Insurance:
Bonds:
Yes
Yes
Yes
N/A
Contract Prepared By: Procurement and Contracting
Submitted on: April 7, 2022 By: Brian Sotak-Rossman
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 12
Revised 2.9.22 Page 1 of 24
CONTRACT SERVICES AGREEMENT A9079
PAINTING AND WALLCOVERING SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on April 11, 2022, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and AJ Fistes Corporation , a California Corporation , (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed painting contractor, for painting and wallcovering services, (“Project”).
B. Contractor has submitted to City a proposal to provid e painting and wallcovering services, to City under the terms of this Agreement.
C. Based on its e xperience, education, training, and reputa tion, Contractor is qualified and desires to provide the necessary services to City for the Project.
D. City desires to retain the services of Contractor for the Project.
NOW, THEREFORE, in c onsideration of the pro mises and mutual obligations, covenants, a nd conditions contained herein, and other valuable consider ation, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. CONTRACTOR SERVICES
1.1 Scope of Services . In compliance with all terms and condit ions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (th e “Services” or “Work”). Exhibit "A" includes the agreed upon sc hedule of performance and the schedule of fees. Contractor warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with the level of ca re and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently pract icing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.
1.2 Compliance with Law . Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regula tions when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 13
Revised 2.9.22 Page 2 of 24
1.3 Licenses and Permits . Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the perfo rmance of the Services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be perform ed and fully understand s the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.
2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit “A .” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the Party responsible for the delay.
3. COMPENSATION OF CONTRACTOR
3.1 Compensation of Contractor. Contractor shall be compensated and reimburse d for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $300,000.00.
3.2 Method o f Payment . In any mont h in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month , in the form approved by City’s finance director . Payment s shall be based on the hourly rates set f orth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within t hirty (30) days of rece ipt of Contractor’s invoice.
3.3 Changes. In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additio nal fees. An amendment may be entered into:
A. To provide for revisions or modifications to docu ments, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this A greement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal ye ar. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
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Revised 2.9.22 Page 3 of 24
4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of perform ance set forth in Exhibit “A .” Any time period extension must be approved in writing by the Contract Officer.
4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Forc e Majeure Event shall m ean an event that materially affects the C ontractor’s performance and is one or more of the follo wing: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) order s 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); and (4) pandemics, epidemics or quarantine restrictions . For purposes of this s ection, “orders of governmental authoritie s,” includes ordinances, emergency proclamations and or ders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the Services for the period of the enforced delay when and if , in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall b e final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminat e this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement s hall continue in full force and effect for a period of 3 years , commencing on April 11, 2022 , and ending on April 10 , 2025 , unless ext ended by mutual written agreement of the Parties.
4.5 Termination Prior to Expiration of Term . City may terminate this Agreement at any time, with or without cause, up on thirty (30) days wri tten notice to Contractor. W here termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the C ity. Upon receipt of t he notice of terminati on, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt o f the notice of termina tion and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for ter mination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action .
Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 15
Revised 2.9.22 Page 4 of 24
5. COORDINATION OF WORK
5.1 Representative of Contractor. The following principal of Contractor is designated as being the prin cipal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Anastasios Fistes (name), President (title). It is expressly understood that the experience, know ledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsi ble during t he term of this Agreement for directing all activiti es o f Contractor and devoting sufficient time to personally supervise the Services under this Agreement . The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
5.2 Contract Officer . The Contract O fficer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance o f the Services. Contractor shall refer any decisions that must b e made by City to th e Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
5.3 Prohibition Against Subcontracting or Assignment . The experi ence, knowledge, education, capability, and reputati on o f Contractor, it s pr incipals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perfo rm any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them sub ject to all provisio ns stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by Ci ty, Contractor s hall be responsible to City for the acts and omissions o f i ts subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
5.4 Independent Contractor. Neither City nor any of its e mployees shall have any control over the manner, mode , or means by which Contractor, its agents or employees, perform the Services required, except as otherwise specified. Contractor shall perform al l required Services as an independen t contractor of City and s hall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wa ges, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: soci al security taxes, income ta x withholding, unemployment insurance, and workers’ comp ensation insurance. Contractor shall not have any authority to bind City in any manner.
5.5 Personnel. Contractor agrees to assign the following individuals to perform th e services in this Agreement. Contractor shall not alter the as signment of the foll owing personnel DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 16
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without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the remova l of any per sonnel assigned by Contractor by providing written notice to Contractor.
Name: Title:
Anastasios Fistes President
5.6 California Labor Code Requirements.
A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailin g wa ge rates a nd the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applic able “public works” or “maintenan ce” project, as defined by the P revailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees t o fully comply with such Prevailing Wage Laws. Contractor shall defend, indemn ify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or a lleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon t he Contractor and all subcon tractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of app rentices (Labor Code Section 177 7.5), certified p ayroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, t he Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the P roject and require the same of an y subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
6. INSURANCE
Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. INDEMNIFICATION.
7.1 Indemnification. To the f ullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively t he “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 17
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judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising f rom injuries to o r d eath of persons (Contractor’s employees included) , for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordin ance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees , representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties . Under no circumstances shall the insurance requirements and limits set forth in this Agreement b e construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified P arties for such matters indemnifi ed are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligati on shall be li mited to the extent which the C laims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement, and, upon Contractor obtaining a final adj udication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
8. RECORDS AND REPORTS
8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the Services required by this Agreement , or as the Contract Officer shall require.
8.2 Records. Contractor shall keep complete, accurate, and d etailed accounts of all time, co sts, expenses, and e xpenditures pertainin g in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and enable the Contract Officer to evaluate the perform ance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit , and make records a nd transcripts from such records.
8.3 Ownership of Documents . All d rawings, s pecifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City . Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.
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8.4 Release of Documents . All drawings, specifications, reports, records , documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
8.5 Audit and Inspection of Records. After receipt of re asonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspec t all accounting books, records, work data, do cuments, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly ident ify and make s uch items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
9. ENFORCEMENT OF AGREEMENT
9.1 California Law. This Agreement shall be cons trued and inte rpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim , or matter ari sing out of or in relation to thi s Agreement shall be instituted in t he Superio r C ourt of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contrac tual and the result of negotiatio n between the Parties.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of th is Agreement. The caption headi ngs of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
9.3 Waiver. No delay or omission in the exercise of any right or remedy of a non - defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 Rights and Remedies are Cumulative . Except with resp ect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative . The exercise by either Party of one or mo re of such rights or remedies shall not preclude the exercise by it, at the sam e o r d ifferent times, of any other rights or remedies for the same default or any other default by the other Party.
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9.5 Legal Action. In addition to any other rights or remedie s, either Party may take legal action, in law or in equity, to cu re, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non -judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be gran ted, to recover from the non -prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Employees . No officer or employee of City shall be personally liable to the Contractor, or any successor -in-interest, in the event of any default or b reach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.
10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shal l ha ve any dir ect or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Co ntractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Against Discrimination . In connection with its performance under this Agreement, Contractor shall not dis criminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, c ultural or linguistic characteristics, or ethn icity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or re cruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7 .09.040, including without limita tion the provision of benefits, relating to no n- discrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be i n DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 20
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writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy-two (72) hours from the time of m ailing if mailed as provided in t his Section. Either Party may change its address by notifying the other Party of the change of address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Contractor: AJ Fistes Corporations
Attention: Anastasios Fistes
1244 N. Gaffey St.
San Pedro, CA 90731
11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to th e subject matter in this Agreement.
11.3 Amendment. No amendments or other modifications of this Agreem ent shall be binding unless through written agreement signed by all Parties.
11.4 Severability. Whenever possible, each provision of this Agreement s hall b e interpreted in such a manner as to be effective and valid under applicable law . In the event that any one or more of the phrases, sentences, clauses, paragraphs , or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties.
11.5 Successors in Interest . This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
11.6 Third P arty Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third -party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
11.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized t o execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.
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11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM
SPRINGS AND AJ FISTES CORPORATION
IN WITNESS WHEREOF, t he Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: 04/07/2022 Item No. 1J
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ Jeffrey S. Ballinger, Monique Lomeli,
City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 4/13/2022
4/13/2022
4/13/2022
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EXHIBIT “A”
CONTRACTOR’S
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
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1.1 Scope of Work:
A. Contractor shall furnish labor, materials, and equipment to perform painting and wallcovering (Work) on an as-requested basis in city facilities included in this solicitation. The scope of Work shall include, but is not limited to general painting, repainting, repair, finishing, refinishing, remedial plastering and patching, sheet rock finish taping (only), patching, joint preparation, graffiti removal, surface preparation and installation of wall covering, repairs and related maintenance. Contractor must provide proper signage and/or protection to prevent staff & public from coming into contact with wet paint and/or plaster. Contractor may be required to move furniture when working on interior projects.
B. Contractor must only use Low-VOC paint.
C. All work shall be performed by and billed to the lowest ap plicable job class level.
The majority of the Work requested under this contract is to be performed by one (1) trade person per job. All service shall be performed by personnel who are journeyman level (or equivalent ac cording to industry norms) as describ ed by industry standards. The Co ntractor must receive prior writte n approval from the City before assigning more than one (1) trade person per job. On jobs requiring more than three (3) trade persons, the Contractor sha ll be required to designate one (1) e mployee to perform the duties an d responsibilities of Foreman and that person shall receive compensation as such
D. Correction of work deficiencies: The Contractor shall correct work rejected by the City as failing to conf orm to the requirements in the project documents within thirty days. The Contractor shall bear the cost of correcting such rejected work, including the costs of uncovering, replacement, and additional testing.
If the Contractor fails to commence correctio n of noncon forming work within a seven day period after written notic e, th e c ity may co rrect the defici encies by other means. In such case, the City may exercise rights and remedies as provided in section 9.4 of agreement.
In addition to the Contractor’s other obligations, the contract shall, for a period of one year after substantial comple tion, correct wo rk not conforming to the requirements of the work.
E. Compliance with regulations and permits: Contractor shall comply with or exceed all relevant statutes, codes, rules, and regulations as may be applicable to this contract and shall be responsible for secur ing any and all permits a s required by the governing authority. The C ity shall reimburse the C ontractor for only the actual cost of said permits.
F. Equipment and supplies: Contractor is to provide, at no additional cost to the City, all necessary equipment, hand, and power tools and supplies typically used by the job classification and/or assigned trade person . Mechanical o r other equipment used for Work mus t be o f a type that is approved by the industry and shall be operated in such a manner as not to cause danger of any nature to e mployees or other persons or damage to the building structure, fixtures, furnishings, etc. Th e DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 25
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City, at its sole and absolute di scretion, may approve to pay for equipment, tools, or materials it determines is not typical of that job classification.
Contractor must not store equipment and/or supplies on any City property.
G. General safety requirements: Th e Co ntractor shal l be respons ible for all safety precautions required in connection w ith their wor k, including regulations of the Occupational Safety and Health Administration (OSHA) and other governing agencies. The City reserves the right to oversee all service work from a safety standpoint and require the Contractor to take appropriate action to ens ure safety and code compliance.
H. Damages: Necessary precautions shall be taken at all times to protect persons, property and equipment from injur y or damage. A ny d amage shall b e reported, reviewed, and discussed with the facility manager.
I. Security: The Contractor is responsible for en suring all entries/exits to the work area are secure during the discharge of their duties (doors must not be propped open). The Co ntractor does not have the au thority and shall not grant access to any person requesting entry into the building or specific work area.
Any items or articles of apparent value found by the Contractor’s personnel in any areas of the building or site shall b e turned over to the facility manager or on-site Security. Any suspicious articles th at may be fou nd, o r pe rsons loitering or conducting thems elves in a m anner to arouse suspicion or possibly in need of help, shall be immediately reported to Police.
J. Disposal and salvage of waste material: Contractor must dispose of or salvage all waste material generated by its service operations under the contract in an off-site location, in compliance with all applicable laws and regulations. C ity encourages Contractor to salvage material in an envir onmentally friendly manner if possible.
City retains the right to retain materials or have anothe r party salvage material, at the discretion and direction of the facility manager.
K. Uniforms and face coverings: The Contractor sha ll b e required to properly uniform its service personnel and they shall present a clean and neat appearance at all times. Day service personnel shall have color-coordinated shirts with company name and/or logo provided by the Contractor.
Contractor must a bide by C ity’s requirements for visiting C ity buildings, including wearing required face coverings.
Contractor vehicles must display company name and logo.
L. Conduct of contractor’s employees on-site: The following behavior is not allowed on City premises:
• Using improper language.
• Acting in a loud, boisterous, or otherwise unprofessional manner. • Engaging in harassment or otherwise offensive conduct.
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• Allowing unauthorized persons, incl uding fam ily and friends, to enter the building or area in which Contractor’s employee is assigned. V isitors must stay in the public lobby until Contractor’s employee arrives. • Opening or going through any C ity property, including furnishings, or use of City equipment or property.
• Theft or aiding in the theft of City property.
• Sleeping on the job.
• Taking scrap material.
• Using tobacco products, including electronic smoking dev ices, anywhere on City premises.
• Using City tools, equipment or supplies without prior authorization. • Possessing firearms or any other weapon, even if legally permitted to carry firearms or other dangerous weapons.
• Sexual misconduct, sexual abuse, sexual h arassment, as defined by state and/or federal law.
Contractor’s employees deemed non compliant by C ity will be removed immediately and replaced within twenty -four (24) hours. Contractor’s employees must submit to we apons screening as directed. Contractor’s employees must be able to understa nd, read and communicate in English under the perf ormance o f this Contract. Contractor must observe and comply with all of C ity’s present and future rules and regulations regarding conduct on the premises.
1.2 Insurance Requirements:
The Contractor shal l mee t a ll in surance requirements of the City, including but not limited to, the provisions of personal and property liability, including automobile coverage, and Worker's Compensation, in limits acceptable to the City.
1.3 License Requirement:
1. Be licensed in accordance with the Palm Springs Municipal Code, Chapter 3.40 through 3.96 entitled Business Tax;
2. Possess any other applicable license required in the performance of these services.
1.4 Term of Contract:
The term of this contract will be for three years, with two, one year renewal options upon mutual consent of the City and the Contractor.
1.5 Option to Renew:
At the sole discretion of the City, the Contract may be r enewed for two one -year options or any portion thereof. If the City exe rcises its option to extend, t he unit prices may be adjusted (decreased or increased) at the beginning of any such renewal period to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureau of Labor Statistics for the Riverside- San Bernardino-Ontario Areas.
1.6 Adjustment of Services:
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The City reserves the right to reduce or increase, or otherwise adjust the scope of services.
1.7 Pricing:
1. The pricing included in this Contract shall be firm for the first year.
2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor Statistics for the Riverside-San Bernardino-Ontario Areas.
3. The City will only pay for the items listed on the b id form, and permit and disposal fees. This does not include access to public utilities. Contractor must incorporate all of its costs in its unit bid prices, including but not limited to labor, supervision , project management, overhead, profit, onboarding training, travel, mileage, truck charges, fuel charges, service call charges, parking, delivery, por tal-to-portal charges, environmental fees, shop supplies and consumable incidental materials. The City wi ll not pay for subcontractors, rental of equipment/ tools, and purchase of materials/supplies unless the City authorized payment of the applicable items.
1.8 Payment:
For all services which the Contractor is obligated to perform under this Contract, the City shall pay to the Contractor per the bid provided by Contractor and set out in Exhibit “A” of the Contract Services Agreement.
1.9 Invoicing:
Contractor will submit an itemized invoice monthly. B illings must reference a purchase order number and shall indicate th e u nit (contract) price. Contractor will be paid for actual work performed which may or may not be equal to the purchase order amount.
Contractor shall break out the line items on t he invoice in accordance with the line it ems on th e bid form. Contractor mu st provide back -up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before any payments to the contractor are authorized. It shall be the contractor’s responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct invoice is receive d.
The invoice shall be accompanied by receipts, dated, and signed by a City Employee, verifying the work was done. Invoices and re ceipts will be submitted to the Contract Officer for approval. All invoices are to be sent as one document, per month to:
1.10 Special Security Requirements – For Palm Springs Police Department and Palm Springs International Airport:
1. POLICE DEPARTMENT:
Any personnel of Contractor assigned to perform services at th e P alm Springs Police Department must pass a Criminal History Records Check ( CHRC) prior to performing services at this facility. The CHRC(s) will b e provided at no charge to Contractor. Contractor shall coordinate the record checks with the City ’s Contract DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 28
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Officer. The City will accept as evidence of passing such a test a LiveScan card issued by another government agency.
2. AIRPORT SECURED ACCESS TO WORK AREAS:
a. Criminal history Records Check (CHRC) and TSA Security Threat Assessment (STA) – The Con tractor will be required to submit the City, prior to the commencement of services, an Authorized Si gnatory Aut hority Le tter authorizing specific Contracto r representatives to app rove the issuance of Airport Identifi cation badg es a nd the processing of a fi ngerprint CHRC and STAs. Electronic links to this let ter and the Fingerprint/Badge application can be found on the Airport’s website at http://www.palm-springs.ca.gov b. Under certai n ci rcumstances, and out of t he con trol of the City, s ecurity measures may change on sh ort notice. No deviations fro m a ny securi ty measure shall be allowed at any time.
c. Restricted Are a Access – All Contrac tor personnel who require unescorted access to the restricted areas of the Airp ort, prior to the issuanc e of an Airport Identification Bad ge, must su ccessfully complet e a fingerprint based CH RC and Security Threat Assessment (STA). In accordance with CFR 49 1542.209, the CHRC must disclose that the applicant has not been convicted, or found not guilty by reason of insanity, of any of th e disqualifying crimes listed below or as sta ted in 49 CFR 1542.209, durin g the 10 years before the date of the individual’s application for unescorted access authority, or while the individual has une scorted access authority . The disqualifying criminal of fenses ar e as follows:
1) Forgery of certificates, false making of aircraft, and other registration violations; 49 U.S.C. 46306.
2) Interference with air navigation; 49 U.S.C. 46308.
3) Improper transportation of a hazardous material; 49 U.S.C. 46312. 4) Aircraft piracy; 49 U.S.C. 46502.
5) Interference with flight crew members or flight attendants; 49 U.S.C. 46504.
6) Commission of certain crimes aboard aircraft in flight; 46506. 7) Carrying a weapon or explosive aboard aircraft; 49 U.S.C. 46506. 8) Conveying false information and threats; 49 U.S.C. 46507. 9) Aircraft piracy outside the special aircraft jurisdiction of the United States; 49 U.S.C. 46502(b).
10) Lighting violations involving transporting controlled substances; 49 U.S.C. 46315.
11) Unlawful entry into an aircraft or airport area that serves air carriers or foreign air carriers contrary to established security requirements; 49 U.S.C. 46314.
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12) Destruction of an aircraft or aircraft facility; 18 U.S.C. 32. 13) Murder.
14) Assault with intent to murder.
15) Espionage.
16) Sedition.
17) Kidnapping or hostage taking.
18) Treason.
19) Rape or aggravated sexual abuse.
20) Unlawful possession, use, sale, distribution, or manufacture of an explosive or weapon.
21) Extortion.
22) Armed or felony unarmed robbery.
23) Distribution of, or intent to distribute, a controlled substance; 24) Felony arson.
25) Felony involving a threat.
26) Felony involving:
i) Willful destruction of property;
ii) Importation or manufacture of a controlled substance; iii) Burglary;
iv) Theft;
v) Dishonesty, fraud, or misrepresentation;
vi) Possession or distribution of stolen property;
vii) Aggravated assault;
viii) Bribery; or
ix) Illegal possession of a c ontrolled substance punishable by a maximum term of imprisonment of more than 1 year.
27) Violence at international airports; 18 U.S.C. 37.
28) Conspiracy or attempt to commit any of the criminal acts listed.
3. Employee Security Bad ges – All Employees, Agents, Vendors, Invitees, Etc. of the Contr actor or Subcontra ctors requirin g acc ess to the work site shall, i n accordance with the PS P Airport Security Plan, be required to display airport issued identification or be under the escort by prope rly bad ged personnel.
Supervisors sha ll be badged with a Palm S prings Inte rnational Airpo rt Ph oto Badge. These badges will be identified numericall y and iss ued to individual employees w ith a permanent record maintained on each individual to whom a DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 30
Revised 2.9.22 Page 19 of 24
badge is issued. At the completion of the c ontract, all badges will be returned to airport, or a charge of $60 per badge (subject t o change) will be assess ed for all badges not returned . As part of the badge application process, each applicant will be fingerprinted for u se i n an FBI Criminal Recor ds search . Any per son whose criminal record reveals off enses listed by the FAA as disqual ifying offenses will be denied a badge and will be prohibited from unescorted access to the project site.
All required paperwork and ID badg e applications shall be s ubmitted a minimum of two weeks before issuance of any ba dge. The Contractor and its staff are responsible for attending SIDA training and completing security badge application.
Attendance of the video-based class and issuance of t he badge may take in excess of 3 hours. There will be a $50 charge (subject to cha nge) for the FBI background check and fingerprinting proce ss, and a $50 ch arge (subject to change) for the badge for a total of $100.00.
4. Violations - All violations of Airpo rt s ecurity are also v iolations of th e City of Palm Spri ngs Municip al Title 16, Ca lifornia Vehicle code and/or the C ode of Federal Regulatio ns. Any s uch vio lation may res ult in arres t, the issuance of a citation and/or the immediate revocation of access privileges.
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EXHIBIT “B”
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
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INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and prop erty damage insurance a gainst all claims for inju ries against persons or damages to propert y resulting from Contractor’s performance under this Agreement.
Contractor shall procure and maintain all i nsurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurre ntly with its execution of this Agreement .
Contractor shall also carry workers’ compensation insurance in accord ance with California workers’ compensation laws. Such insurance shall be kept in full force a nd effect during the term of this Agreement , incl uding any e xtensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and des ignating the City, its elected officials, officer s, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to a nd approved by City prior to commence ment of services. The procuring of such insurance and th e delivery of policies, certificates, and endorse ments evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. Minimum Scope of Insura nce. The minimum amount of insurance requir ed under this Agreement shall be as follows:
1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,00 0.00) combined single limit coverage per occurrence and t wo million dollars ($2,000,000) general aggregate;
2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;
3. Professional liability (errors an d omi ssions) insurance with limits of at least one millio n dollars ($1,000,000.0 0) per occurrence and two million dol lars ($2,000,000) annual aggregate is:
_________ required
___X____ is not required;
4. Workers’ Compensation insurance in the statutory am ount as required by the State of California and Employer’ s Liability Insurance w ith limits of at least on e mil lion dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primar y with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rig hts of subrogation and DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 34
Revised 2.9.22 Page 23 of 24
contribution it may have against Cit y, its elected officials, offic ers, employees, agents, and volunteers.
4. Errors and Omissions Coverage . If Errors & Omissions Insurance is required, and if Contractor provides claims made profes sional liability insuran ce, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims m ade within three years of the complet ion o f Contractor’s services under this Agreement, or (2) to maintain profession al liability insurance co verage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agr eement. Contractor shall also be required to provide evi dence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance require d in this Agreement shall be provided by authorized insurers in good standing with the State o f California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements , inc luding additional insured endorsement s, affecting all of the coverages required by this Agreement. The certi ficates and endorsements are to be si gned by a person authorized by that insurer to bind cover age on its behalf. All proof of insurance is to be received and approved by the City befo re work commences. City reserves the right to require Contractor’s insurers to provide complete, certified c opies of all required insurance policies at any time. Additional insured endors ements are not required f or Er rors a nd Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Ins urance Cove rage with an approved Additiona l Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Sprin gs, its officials, employees, and agents are named as an additional insured…” (" as respects City of Palm Springs Contract No.___" or "for any and a ll work performed with the City" may be included in this statement).
B. "This insurance is primary and non -contributory over any insurance or self - insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. "Should any of the above-described policies be c anceled before the expiration date thereof, the issu ing company will mail 3 0 days written notice to the C ertificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall imp ose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
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D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In additio n to the endorsements l isted above, the City of Palm Springs shall be named the certificate holder on the policies.
All certificates of insurance and endorsement s are to be received and approved by the C ity before work commences. All certificates of insu rance must be authorize d by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.
Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City prior t o commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall redu ce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, a nd volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and relat ed investigations, clai m administration, and def ense expenses.
Certificates of Insurance m ust include evidence of the amount of any deductible or self -insured retention under the policy. Contractor guarantees payment of all deductibles and self -insured retentions.
8. Severability of Interests (Separat ion o f Insu reds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.
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SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A :
NAIC #
NAME:
CONTACT
(A/C, No):
FAX
E-MAIL
ADDRESS:
PRODUCER
(A/C, No, Ext):
PHONE
INSURED
REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $
$
$PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)
COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOSAUTOS ONLY
NON-OWNED
SCHEDULEDOWNED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTH-
STATUTE
PER
LIMITS(MM/DD/YYYY)
POLICY EXP
(MM/DD/YYYY)
POLICY EFF
POLICY NUMBERTYPE OF INSURANCELTR
INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB $EACH OCCURRENCE
$AGGREGATE
$
OCCUR
CLAIMS-MADE
DED RETENTION $
$PRODUCTS - COMP/OP AGG
$GENERAL AGGREGATE
$PERSONAL & ADV INJURY
$MED EXP (Any one person)
$EACH OCCURRENCE
DAMAGE TO RENTED
$PREMISES (Ea occurrence)
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY PRO-
JECT LOC
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
3/14/2022
Burnham WGB Insurance Solutions
CA Insurance License 0F69771
15901 Red Hill Avenue
Tustin CA 92780
Brittany Andrakowicz
714-505-7000
714-573-1770
[email protected]
Vantapro Specialty Ins Co
44768
AJFIS-1
ACE AMERICAN INS CO
626
A.J. Fistes Corporation
1244 N. Gaffey Street
San Pedro CA 90731
CYPRESS INS CO
10855
175407856
B
X
1,000,000
X
100,000
1,000,000
2,000,000
X
Y
G71110515 004
4/19/2021
4/19/2022
2,000,000
A
1,000,000
X
X
X
Y
5087026903
12/8/2021
12/8/2022
C
X
Y
AJWC242129
6/30/2021
6/30/2022
1,000,000
1,000,000
1,000,000
RE: IFB 22-12 Painting and Wallcovering Services
The City of Palm Springs, its officials, employees, and agents for any and all work performed with the City are named as additional insured on the General Liability per attached CG 20 10 04 13 & CG 20 37 04 13 as required by written contract subject to the terms and conditions of the policy.
Primary and Non-Contributory applies on the General Liability per attached CG 20 01 04 13 The City of Palm Springs, its officials, employees, and agents for any and all work performed with the City are named as additional insured on the Auto per attached SA 00039 00 as required by written contract subject to the terms and conditions of the policy.
Primary and Non-Contributory applies on the Auto Liability per attached SA 00007 00 10 17 Waiver of Subrogation applies to the Workers' Compensation per attached WC 99 04 10C City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs CA 92262
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5087026903
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 39
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 40
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Policy No. 5087026903
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Policy No. 5087026903
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 47
G71110515 004
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 48
G71110515 004
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 49
G71110515 004
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 50
G71110515 004
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 51
AJWC242129
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 52
AJWC242129
6/30/2021
A.J. Fistes Corporation
DocuSign Envelope ID: 22B5101D-89A3-4295-AFDC-A3BEFFCADD75 Item 1L - Page 53
CITY COUNCIL STAFF REPORT
DATE: MARCH 14, 2024 CONSENT CALENDAR
SUBJECT: APPROVE AMENDMENT NO. 1 TO AGREEMENT A9241 WITH J & L AUTO BODY, INC., FOR AUTO BODY REPAIR SERVICES
FROM: Scott C. Stiles, City Manager
BY: David McAbee, Director of Public Works
SUMMARY:
This action will approve Amendment No. 1 to Agreement A9241 with J & L Auto Body, Inc., in the amount of $100,000 for a revised contract amount not to exceed $400,000 for auto body repair services.
RECOMMENDATION:
1. Approve Amendment No. 1 to Agreement A9241 (Attachment A) with J & L Auto Body, Inc., to provide auto body repair services for an additional amount of $100,000 for a total revised contract amount not to exceed $400,000 through October 26, 2025.
2. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form ( Attachment B ) submitted on September 20, 2022, J & L Auto Body Inc., is registered in the state of California. The owner is Joe Ghougassian with 100% beneficial interest in the entity.
BACKGROUND:
An Invitation for Bids (IFB 23- 05) was initiated by the City’s Procurement & Contracting Department on August 29, 2022, based on Public Works specifications. On October 27, 2022, City Council awarded a Contract Service Agreement A9241, Attachment C, with J & L Auto Body, Inc., for a three- year term in the amount of $300,000 effective October 27, 2022, through October 26, 2025, subject to two one- year optional extensions at mutual consent of the parties.
Item 1M - Page 1
City Council Staff Report
March 14, 2024 -- Page 2
Amend Auto Body Repair Services Contract
STAFF ANALYSIS:
The Public Works Department has expended approximately $255,000 for auto body repair services rendered through January 2024, or 1- year and 3- months of the initial contract term. Since the amount of service needed is exceeding the estimated contract value, increasing the contract to a not -to-exceed amount of $400,000 will ensure funds are available for all current and future as -needed auto body repairs while staff re- solicit these services on an expanded scale. Therefore, staff requests approval of Amendment No. 1 in the amount of $100,000 to add funding for auto body repair services for the City’s fleet operations.
ENVIRONMENTAL ASSESSMENT
:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for t he above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not in clude: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
Approval of this action supports City Council priority 2, Community Infrastructure.
FISCAL IMPACT:
Sufficient funds are budgeted and available in Fiscal Year 2023- 24 and 2024- 25 in Facilities Maintenance Accounts 5206570-40105 and 5206570-50119.
REVIEWED BY:
Assistant Director of Maintenance and Facilities: Daniel Martinez Director of Public Works: David McAbee
Director of Procurement and Contracting: Kim Baker
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. Amendment No.1 A9241
B. Public Integrity Disclosure
C. Contract Service Agreement No. A9241
Item 1M - Page 2
ATTACHMENT A
Item 1M - Page 3
AMENDMENT NO. 1 TO CONTRACT SERVICES AGREEMENT NO. A9241
AUTO BODY REPAIR SERVICES
This Amendment No. 1 to the Contract Services Agreement ( A9241), (“Amendment No. 1”), is made and entered into this 18th day of March, 2024, by and between the City of Palm Springs, a California charter city and municipal corporation, hereinafter designated as the City, and J & L Auto Body, Inc., a California corporation, hereinafter designated as the Contractor. City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City has determined that there is a need for a licensed and qualified firm to provide auto body services on an as-needed basis.
B. City issued an Invitation for Bid (“IFB”) No. 2 3-05, seeking sealed bids to provide auto body services, and setting for the terms, conditions, and covenants governing the provision of such services.
C. On October 27, 2022, City Council approved a Contract Services Agreement (A9241) with Contractor to provide painting and wallcovering services , for a total contract amount of $300,000.
D. City desires to modify the contract amount to add $1 00,000, for a total revised contract amount not to exceed $400,000.
E. Contractor desires to perform said services on the terms and conditions set forth in this Amendment.
In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows:
AGREEMENT
SECTION 1. The true and correct recitals above are incorporated by this reference herein as the basis for this Third Amendment.
Item 1M - Page 4
SECTION 2. 3.1. Compensation and Payment. is hereby replaced in its entirety as follows:
“3.1. Compensation and Payment. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $400,000.
SECTION 3. Full Force and Effect. All terms, conditions, and provisions of the Contract Services Agreement A9241, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment No. 1 and any provisions of the Contract Services Agreement A9241, the provisions of this Amendment No. 1 shall in all respects govern and control.
SECTION 4. The persons executing this Amendment No. 1 on behalf of the Parties hereto warrant that (I) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this Amendment No. 1 , such party is formally bound to the provisions of this Amendment No. 1, and (iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement to which said Party is bound.
Except as specifically amended by this Amendment No. 1, all terms and provisions of Agreement No. A9241 remain in full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
Item 1M - Page 5
SIGNATURE PAGE TO AMENDMENT NO. 1 (A9241) BY AND BETWEEN THE CITY OF PALM SPRINGS AND J & L AUTO BODY, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By:___________________________ By:____________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By:
City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1M - Page 6
ATTACHMENT B
Item 1M - Page 7
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
J&L Auto Body INC
2. Address of Entity (Principal Place of Business)
936 S. Glendora Ave. West Covina , CA 91790
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State California
If other than California, is the Entity also registered in California? Yes No Type of Entity
Corporation Limited Liability Company Partnership Trust Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
Joe Ghougassian - CEO
100%
Liza Ghougassian - CFO
Sergio Ghougassian - Director
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity Joe Ghougassian
100%
[percentage of beneficial interest in entity and
name of entity]
Item 1M - Page 8
I
Item 1M - Page 9
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE ST TiE OF CAUFORNIATHAT THE FOREG,OING IS TRUE AND CORRECT.
ing1 Party,,Prlnted Name, Ti e Date
ATTACHMENT C
Item 1M - Page 10
CONTRACT ABSTRACT
2 Originals: Agreement; 1 Original: Performance & Payment Bond and Insurance Contract
Company Name:
Company Contact:
Summary of Services:
Contract Price:
Funding Source:
Contract Term:
J & L Auto Body Inc.
Joe Ghougassian, [email protected]
Auto Body Repair Services
$300,000
F
acilities: 5106560-50105
October 17, 2022 through October 16, 2025
Contract Administration
Lead Department:
Contract Administrator:
Fa cilities Maintenance
Daniel Martinez
Contract Approvals
Council Approval:
Resolution Number:
Agreement Number:
10/27/2022
1L
A9241
Contract Compliance
Exhibits:
Signatures:
Insurance:
Bonds:
Yes
Yes
Yes
N/A
Contract Prepared By: Procurement and Contracting
Submitted on: September 27, 2022 By: Brian Sotak-Rossman DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 11
Revised 2.9.22 Page 1 of 21
CONTRACT SERVICES AGREEMENT A9241
AUTO BODY REPAIR SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on October 17, 2022, by and between the City of Palm Springs , a California charter city and municipal c orporation (“City”), and J & L AUTO BODY INC., a California corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed and qualified firm to provide auto body services on an as-needed basis, (“Project”).
B. Contractor has submitted to City a proposal to provide auto body services, to City under the terms of this Agreement.
C. Based on its experience, education, training, and reputation, Contrac tor is qualified and desires to provide the necessary services to City for the Project.
D. City desires to retain the services of Contractor for the Project.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions c ontained herein, and other valuable consider ation, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. CONTRACTOR SERVICES
1.1 Scope of Services . In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services ” or “Work”). Exhibit "A" includes the agreed upon schedule of per formance and the schedule of fees. Contractor warrants that the S ervices shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well quali fied members of the profession currently pract icing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.
1.2 Compliance with Law . Contract or sha ll comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
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1.3 Licenses and Permits . Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.
2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of thi s Agreement according to the agreed upon s chedule of performance set forth in Exhibit “A .” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non -performing Party. Delays shall not entitle Cont ractor to any additional compensation regardless of the P arty responsible for the delay.
3. COMPENSATION OF CONTRACTOR
3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance wi th the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $300,000.00.
3.2 Method of Payment . In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director. Payments shall be based on the hourly rates set forth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice.
3.3 Changes . In the event any change or changes in the Services is reque sted by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:
A. To provide for revisions or modifications to documents , work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
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4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of perform ance set forth in Exhibit “A .” Any time period extension must be approved in writing by the Contract Officer.
4.3 Force Majeure. The time for performance of S ervices to be rendered under this Agreement may be ext ended because of any delays due to a Force Majeure Event if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the W ork); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ord inances, emergency proclamations and or ders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the S ervices for the period of the enforced delay when and if , in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and co nclusive upon the P arties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement s hall continue in full force and effect for a period of three years , commencing on October 17, 2022, and ending on October 16, 2025, unless ext ended by mutual written agreement of the Parties.
4.5 Termination Prior to Expiration of Term . City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor . W here termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of terminati on, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all S ervices rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed S ervices and shall not be entitled to damages or compensation for ter mination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor , who shall be liable for the full c ost of the City's c orrective action.
Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
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5. COORDINATION OF WORK
5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Joe Ghougassian (name), Owner (title). It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contra ctor and devoting sufficient time to personally supervise the S ervices under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City M anager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the S ervices. Contractor shall refer any decisions that must be made by Ci ty to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
5.3 Prohibition Against Subcontracting or Assignment . The experience, knowledge, education, capability, and reputation of Contra ctor, it s pr incipals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any S ervices required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions sti pulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omi ssions of i ts subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode , or means by which Contractor , its agents or employees, perform the Services required, except as otherwise specified . Contractor shall perform all required Services as an independent contractor o f City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor ’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and worke rs’ compensation insurance. Contractor shall not have any authority to bind City in any manner.
5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of th e following personnel DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 15
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without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.
N ame: Title:
Joe Ghougassian Owner
5.6 California Labor Code Requirements.
A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates a nd t he performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the S ervices are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemni fy and hold the City, its officials, officers, employees and agents 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. It shall be mandatory upon t he Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payr oll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors , as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor ’s sole responsibility to comply with all applicable registration and labor compliance requirements.
6. INSURANCE
Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. INDEMNIFICATION.
7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers , employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 16
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judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injur ies to or d eath of persons (Contractor ’s employees included) , for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions , or willful misconduct committed by Contractor, its officers, employees , representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties . Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor ’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’ s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be lim ited to the extent which the C laims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement , and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor ’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
8. RECORDS AND REPORTS
8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the S ervices required by this Agreement, or as the Contract Officer shall require.
8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and e xpenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the S ervices required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit , and make records and transcripts from such records.
8.3 Ownership of Documents . All drawings, s pecifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.
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8.4 Release of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
8.5 Audit and Inspection of Records . After receipt of reasonable notice and during the regular busines s hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, document s, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make s uch items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
9. ENFORCEMENT OF AGREEMENT
9.1 California Law. This Agreement shall be construed and inte rpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim , or matter arising out of or in relation to this Agreement shall be instituted in the Superio r Cour t of the County of Riverside , State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreemen t shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the var ious sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
9.3 Waiver . No delay or omission in the exercis e of a ny right or remedy of a non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 Rights and Remedies are Cumulative . Except with resp ect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative . The exercise by either P arty of one or more of such rights or remedies shall not preclude the exercise by it, at the sam e or different times, of any other rights or remedies for the same default or any other default by the other Party.
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9.5 Legal Action. In addition to any other rights or remedies, either P arty may take legal action, in law or in equity, to cure, correct , or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non- judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
10. C ITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Employees . No officer or employee of City shall be personally liable to the Contractor , or any successor -in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.
10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any dir ect or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Against Discrimination . In connection with its performance under this Agreement, Contractor shall not dis criminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethn icity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 19
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writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy- two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Contractor: J & L Auto Body Inc.
Attention: Joe Ghougassian
936 S. Glendora Ave. Suite 6
West Covina, CA 91790
11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.
11.4 Severability. Whenever possible, each provision of this Agreement s hall b e interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or secti ons contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties.
11.5 Successors in Interest . This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
11.6 Third Party Benef iciary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
11.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
11.8 Authority. T he persons executing this Agreement on behalf of the P arties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.
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11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND J & L AUTO BODY INC.
IN WITNESS WHEREOF, t he Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: 10/27/2022 Item No. 1L
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A 10/28/2022
10/28/2022
11/8/2022
Item 1M - Page 22
IA DocuSigned by:
L ~~c~ c~ssi~
l,DocuSigned by:
L._0~~a~~ssi~
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EXHIBIT “A”
CONTRACTOR’S
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
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1.1 Scope of Work:
A. Contractor shall provide auto body repair services (Work) on an as-needed basis for all City of Palm Springs vehicles including sedans, trucks, sport utility vehicles and other fleet equipment.
B. Contractor shall furnish all necessary labor, parts, and services in accordance with the provisions and terms and conditions.
C. Contractor must be able to provide quick turnaround.
D. Contractor must prov ide certified technicians.
E. Contractor must have a complete body repair facility.
F. The scope of work includes auto body repairs and repair practices to include but i s not limited to the following:
1. Body repair and/or replacement of body panels
2. Refinishing
3. Frame Straightening
4. Decal Services
5. Painting
G. Contractor shall follow repair standards that include but are not limited to:
1. Mas king, protecting, or removing and re -installing all chrome, glass, lighting equipment (light bars. strobes), winches, etc . and any other vehicle component(s) or accessory(ies) that could be damaged while making repairs.
2. Making all necessary adjustments, aligning doors, hood decks, trucks, fenders, or other body components such as hinges, latches, etc., that are not damaged, but would require such labor to produce a finished job.
3. Aligning front and/ or rear ends (casters, camber, and toe -in, etc.) when collision damage has affected them.
4. Reapplying rust-proofing and under -coating in any repaired areas which originally had this type of protection.
5. Recovering seat(s), arm rest(s), headliner, etc., if so, requested by the Fleet Manager.
6. Where applicable, resetting, repairing, and/or restoring any active or passive restraint systems such as seat and shoulder harnesses, and /or air b ag systems to fully functional new original equipment manufacturers (O.E.M.) factory standards.
7. Completing color change for vehicles or equipment must incl ude door jams, hood. truck, and deck jams.
H. Contractor, when installing auto body parts, shall follow repair stand ards that include but are not limited to:
1. All body parts shall meet the automobile manufacturer's specification requirements.
2. City of Palm Springs does not always require that new body parts be used.
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a. Used parts, at the sole discretion of the Fle et Ma nager, may be installed depending on the age and value of the equipment being repaired.
b. City of Palm Springs reserves the right to provide the used auto body parts when appropriate as determined by the Fleet Manager. c. Contractor, with prior written ap proval of the City of Palm Springs Fleet Manager, may utilize used body parts provi ded the used parts equal the materials used in the original body part and match the original contours with regards to fit and alignment of the vehicle being repaired.
I. Contractor shall take the installation of used auto body parts into consideration when issuing an estimate for work that will include such parts.
J. Used auto body parts shall be warranted for one (1) year and shall cover at minimum the completed paint work, affixing of various decals and completed repairs.
K. The warranty for new body parts shall be the manufacturer's standard warranty. New original equipment manufacturers (O.E.M.) body repair parts and new aftermarket repair parts shall carry a manufacturer's warranty.
L. All airbag components and seat belt components shall be replaced with new O .E.M. parts.
M. Contractor shall issue estimates that include but are not limited to the following information:
1. A standard form of estimating, such as the Mitchell Collision Estimating Guide or the applicable industry standard list used by insurance appraiser s for estimating repair costs.
2. Repair cost estimates shall be due within two (2) days after calling for estimate of work assignment.
3. Prior to the commencement of repair work, C ontractor shall issue a wr itten estimate, indicating the following:
a. Estimated hours of repair required
b. An itemized list of all parts required
c. Anticipated finish date for all repairs
d. Itemized pricing for all labor and materials
N. If additional costs (labor and/ or parts) are identified due to hidden damage, Contractor shall notify within two (2) business days after receipt of the vehicle to be repaired.
1. Approved a dditional costs shall be itemized on an invoice. Separate from the original estimate, and clearly identified as hidden damages.
2. Should the City of Palm Springs not accept C ontractor’s estimate of additional charges and/or delivery delay attributable to the hidden damage, the City may, at its sole discretion, require that C ontractor return the vehicle within 48 hours to the City without any additional charges.
3. The Cit
y's only liability shall be for work already approved and completed.
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O. Authorization to Begin Work starts when the designated City official returns a copy of the "Approved" Estimate of Repair Cos t form, including Purchase Order Number to the Contractor assigned to the work order.
P. Upon notification of work by Fleet Management, Contractor shall transport the vehicle from the requesting department’s facility and begin work within two (2) business days after notification of award.
Q. Contractor shall be responsible for the safe pi ckup, transport, and delivery of vehicles.
R. All transportation of vehicles shall be done without additional charge to the City of Palm Springs.
S. Upon return of the finished vehicle, if the fleet manager determines that the vehicle was not properly repaired according to accepted industry standards, the fleet manager will discuss the matter with the C ontractor for full resolution in the best interest of the City of Palm Springs.
T. Contractor who provides poor quality repair, excessive hidden damage estimates, excessive delays in completing repairs or who is otherwise not in compliance wit h the terms and conditions of this RFP may be dropped from the auto body repair service program without notice.
U. Contractor shall be responsible for the security and storage of City vehicle(s) at their repair facility.
V. Contractor shall reimburse the City for all damages to City property in their care, such as unwarranted wear and tear, acts of vandalism and malicious mischief, all physical damages, including acts of commission and/or omission by C ontractor’s employees and others.
1.2 Insurance Requirements:
Contractor shall meet all insurance requirements of the City, including but not limited to, the prov isions of p ersonal and property liability, including automobile coverage, and Worker's Compensation, in limits acceptable to the City.
1.3 License Requirement:
Be licensed in accordance with the Palm Springs Municipal Code, Chapter 3.40 through
3.96 entitled Business Tax;
1.4 Pricing:
1. The pric
ing included in this Contract shall be firm for the first year.
2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor Statistics for the Riverside- San Bernardino-Ontario Areas.
3. The City will only pay for the items listed on the bid form. Contractor must incorporate all of its costs in its unit bid prices, including but not lim ited t o labor, supervision, project management, overhead, p rofit, onboarding t raining, travel, mileage, truck charges, fuel charges, service call charges, parking, delivery, portal- to-portal charges, environmental fees, shop supplies and consumable incident al materials. The City will not pay for subcontractors, rental of equipment/tools, and DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 26
Revised 2.9.22 Page 16 of 21
purchase of materials/supplies unless the City authorized payment o f the applicable items.
1.5 Invoicing:
Contractor will submit an itemized invoic e monthly. Billings mu st reference a pur chase order number and shall indicate the uni t (contract) price. Contractor will be paid for the actual hours worked at the rates shown in t he contract. Parts, materials, equipment, and subcontractor costs will be compensated at actual cost with r eceipts requir ed with allowable markup as outline in t he contract. Contractor shall break out the line items on the invoice in accordance with the li ne items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before any payments to the contractor a re authorized. It sh all be the contractor’s responsibility t o submit a correct invoice. The City shall not be respons ible for payment until a co rrect inv oice is received. The invoice shall be accompanied by receipts, dated, and signed by a City Emplo yee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval. All invoices are to be sent as one document, per month to: [email protected].
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 27
Revised 2.9.22 Page 17 of 21
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 28
ATTACHM ENT F
BID FORM
INVITATION FOR BIDS IFB 23-05
AUTO BODY REPAIR SERV ICES
Responding to this IFB for auto body repair services, the undersigned bidder proposes and agrees to provide the services and work in accordance with the specifications Bidder proposes and agrees to furnish all labor, equipment, materials, supervision, and service necessary to complete said Work in accordance with the Specifications of the City of Palm Springs and will accept as full payment therefore, the following unit cost amounts. The City of Palm Springs will not accept any additional charges, fees, etc. that are not already included or incorporated in the below unit costs.
ITEM DESCRIPTION UNIT ESTIMATED UNIT PRICE SUBTOTA L QUANTITY 1 Bodv Reoair Labor HR 500 65 32500
2 Paint Labor HR 300 65 19500
3 Mechanical / Electrical Labor HR 300 95 28500
4 Frame Repair Labor HR 200 95 19000
5 Aluminum Repair Labor HR 200 100 20000
TOTAL 119500
ITE~ DESCRIPTION % MARK-UP
6 Parts and Materials <Enter vour o/o mark-uo for oarts & materials\ 30 *Please note: This bid form is to deter min e the lowest b idder and wi ll be used to esta blish tfi>e contract unit prices. The contract value will be set at the City budget amount.
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Revised 2.9.22 Page 18 of 21
EXHIBIT “B”
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 29
Revised 2.9.22 Page 19 of 21
INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries agains t persons or damages to property resulting from Contractor’s performance under this Agreement.
Contractor shall procure and maintain all in surance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurre ntly with its execution of this Agreement .
Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensat ion laws. Such insurance shall be kept in full force and effect during the term of this Agreement , incl uding any extensions. Such insurance shall not be ca ncelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officer s, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencem ent of services. The procuring of such insurance and the delivery of policies, certificates, and endorse ments evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. M inimum Scope of Insurance . The minimum amount of insurance requir ed under this Agreement shall be as follows:
1. Comprehens ive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;
2. Automobile liability insurance with limits of a t least one million dollars ($1,000,000.00) per occurrence;
3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
____X____ is not required;
4. Workers’ Compensation insurance in the statutory am ount as required by the State of California and Employer’s Liability Insurance with limits of at least one mil lion dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contr actor’s insurance coverage shall be primar y with respe ct to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, empl oyees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s L iability Insurance only, the insurer shall waive all rights of subrogation and DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 30
Revised 2.9.22 Page 20 of 21
contribution it may have again st City, its elected officials, offic ers, employe es, agents, and volunteers.
4. Errors and Omissions Coverage . If Errors & Omissions Insurance is required, and if Contractor provides claims made profes sional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the complet ion of Contractor ’s services under this Agreement, or (2) to maintain professional liability insurance coverag e with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’ s services under this Agr eement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M . Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, inc luding additional insured endorsement s, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be si gned by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work com mences. City reserves the right to require Contractor’s insurers to provide complete, certified c opies of all required insurance policies at any time. Additional insured endorsements are not required f or Errors a nd Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Ins urance Coverage with an approved Additional Insured E ndorsement with the following endorsements stated on the certificate:
A. "The City of Palm Sprin gs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. " This insurance is primary and non-contrib utory over any insurance or self - insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. " Should any of the above- described policies be ca nceled before the expiration date thereof, the issuing company will mail 30 days written notice to the C ertificate Holder named." Language such as, “end eavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 31
Revised 2.9.22 Page 21 of 21
D. Both the Workers’ Compensation and Employers' Liability p olicies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.
All certificates of insurance and endorsements are to be received and approved by t he Ci ty before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized a gent/broker or insurance underwriter.
Failure to obtain the required documents prior to the comm encement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and def ense expenses.
Certificates of Insurance m ust include evidence of the amount of any deductible or self -insured retention under the policy. Contractor guaran tees payment of all deductibles and self -insured retentions.
8. Severability of Interests (Separat ion of Insu reds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 32
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/12 /7 /17 /2 /29
/22 /20 /8 /12 /2
/16 /7 /18 /1 /25 □ /12 /8 /25 □ /2 /26 /4 /19 /29
/6 /7 /26
/16 /7 /18 /1 /25 □ /12 /8 /19 /29
/2 /53 /17 /7 /5 /9
/7 /15 /15 /3 /2 /13 /13 /29
/5 /12 /13 /14 /3 /2 /3 /16 /13 /19 □ /7 /6 /6 /8 /3 /15 /5 /12 /21 □ /1 /8 /24 /2 /3 /7 /21 /2/12 /7 /5 /1 □ /54 /5 /12 /13 /14 /3 /2 /15 /5 /12 /13 /14 /3 /2 /3 □ /7 /29 /5 /12 /13 /14 /3 /2 /3 □ /10 /29
/5 /12 /13 /14 /3 /2 /3 □ /1 /29
/5 /12 /13 /14 /3 /2 /3 □ /15 /29
/5 /12 /13 /14 /3 /2 /3 □ /2 /29
/5 /12 /13 /14 /3 /2 /3 □ /6 /29
/1 /8 /24 /2 /3 /7 /21 /2 /13 /1 /2 /3 /4 /5 /6 /5 /1 /7 /4 /2 □ /12 /14 /17 /10 /2 /3 /29 /3 /2 /24 /5 /13 /5 /8 /12 □ /12 /14 /17 /10 /2 /3 /29 /55 /56 /57 /58 □ /57 /58 □ /55 /60 □ /61 /62 /63 /55 /57 /64 /65 □ /55 /56 /66 /55 □ /55 /56 /62 □ /67 /60 /68 /57 /61 /57 /62 /58 □ /60 /64 □ /57 /69 /58 /70 /63 /66 /69 /61 /62 □ /68 /57 /58 /55 /62 /71 □ /72 /62 /68 /60 /73 □ /56 /66 /74 /62 □ /72 /62 /62 /69 □ /57 /58 /58 /70 /62 /71 □ /55 /60 □ /55 /56 /62 □ /57 /69 /58 /70 /63 /62 /71 □ /69 /66 /75 /62 □ /66 /72 /60 /74 /62 □ /64 /60 /63 □ /55 /56 /62 □ /67 /60 /68 /57 /61 /65 □ /67 /62 /63 /57 /60 /71 □ /57 /69 /71 /57 /61 /66 /55 /62 /71 /76 □ /69 /60 /55 /73 /57 /55 /56 /58 /55 /66 /69 /71 /57 /69 /77 □ /66 /69 /65 □ /63
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/66 /69 /65 □ /67 /63 /60 /67 /63 /57 /62 /55 /60 /63 /99 /67 /66 /63 /55 /69 /62 /63 /99 /62 /81 /62 /61 /70 /55 /57 /74 /62 □ /60 /64 /64 /57 /61 /62 /63 /99 /75 /62 /75 /72 /62 /63 □ /62 /81 /61 /68 /70 /71 /62 /71 /105 □ /16 /17 /38 /43 /41 /38 /31 /39 /35 /45 □ /36 /43 □ /12 /20 /19 /57 /106 □ /92 /89 /95 /79 □ /101 /89 /95 /86 /88 /100 /107 /89 □ /87 /90 /101 /89 /88 □ /71 /62 /58 /61 /63 /57 /67 /55 /57 /60 /69 □ /60 /64 □ /60 /67 /62 /63 /66 /55 /57 /60 /69 /58 □ /107 /89 /108 /93 /109 /11 /18 /12 /62 /76 /68 /76 □ /62 /66 /61 /56 □ /66 /61 /61 /57 /71 /62 /69 /55 /82 /62 /76 /68 /76 □ /71 /57 /58 /62 /66 /58 /62 □ /83 □ /62 /66 □ /62 /75 /67 /68 /60 /65 /62 /62 /82 /62 /76 /68 /76 □ /71 /57 /58 /62 /66 /58 /62 □ /83 □ /67 /60 /68 /57 /61 /65 □ /68 /57 /75 /57 /55 /82 /15 /2 /13 /1 /3 /5 /22 /4 /5 /8 /12 □ /8 /6 □ /8 /22 /2 /3 /7 /4 /5 /8 /12 /13 /18 /9 /8 /1 /7 /4 /5 /8 /12 /13 /18 /24 /2 /20 /5 /1 /9 /2 /13 □ /16 /7 /1 /8 /3 /15 □ /110 /111 /110 /25 □ /7 /41 /41 /36 /31 /36 /39 /43 /38 /40 □ /3 /33 /46 /38 /35 /112 /42 □ /13 /34 /32 /33 /41 /47 /40 /33 /25 □ /46 /38 /45 □ /49 /33 □ /38 /31 /31 /38 /34 /32 /33 /41 □ /36 /30 □ /46 /39 /35 /33 □ /42 /44 /38 /34 /33 □ /36 /42 □ /35 /33 /51 /47 /36 /35 /33 /41 /19 /1 /2 /3 /4 /5 /6 /5 /1 /7 /4 /2 □ /20 /8 /9 /15 /2 /3 /1 /7 /12 /1 /2 /9 /9 /7 /4 /5 /8 /12 /13 /20 /8 /14 /9 /15 □ /7 /12 /11 □ /8 /6 □ /4 /20 /2 □ /7 /10 /8 /24 /2 □ /15 /2 /13 /1 /3 /5 /10 /2 /15 □ /22 /8 /9 /5 /1 /5 /2 /13 □ /10 /2 □ /1 /7 /12 /1 /2 /9 /9 /2 /15 □ /10 /2 /6 /8 /3 /2 □ /4 /20 /2 □ /2 /26 /22 /5 /3 /7 /4 /5 /8 /12 □ /15 /7 /4 /2 □ □ /4 /20 /2 /3 /2 /8 /6 /25 □ /12 /8 /4 /5 /1 /2 □ /27 /5 /9 /9 □ /10 /2 □ /15 /2 /9 /5 /24 /2 /3 /2 /15 □ /5 /12 □ /7 /1 /1 /8 /3 /15 /7 /12 /1 /2 □ /27 /5 /4 /20 □ /4 /20 /2 □ /22 /8 /9 /5 /1 /11 □ /22 /3 /8 /24 /5 /13 /5 /8 /12 /13 /23 /7 /14 /4 /20 /8 /3 /5 /28 /2 /15 □ /3 /2 /22 /3 /2 /13 /2 /12 /4 /7 /4 /5 /24 /2 /113 /110 /114 /115 /115 /53 /116 /111 /110 /117 □ /7 /1 /8 /3 /15 □ /1 /8 /3 /22 /8 /3 /7 /4 /5 /8 /12 /23 □ /7 /40 /40 □ /3 /36 /52 /32 /31 /42 □ /3 /33 /42 /33 /35 /48 /33 /41 /4 /32 /33 □ /7 /1 /8 /3 /15 □ /43 /38 /46 /33 □ /38 /43 /41 □ /40 /39 /52 /39 □ /38 /35 /33 □ /35 /33 /52 /36 /42 /31 /33 /35 /33 /41 □ /46 /38 /35 /112 /42 □ /39 /30 □ /7 /1 /8 /3 /15 □ /7 /1 /8 /3 /15 □ /116 /117 □ /16 /116 /111 /110 /118 /18 /111 /119 /19 /120 /121 /83 /121 /122 /123 /124 □ □ □ □ /121 /121 /83 /121 /125 /126 /127 /128 /129 /130 /131 /127 /128
/126/132
/128 /133 □ /135 /131 /136 /137 /127 /137 /131 /129 /138 /139 /140 /141 /142 /141 /139 /140 /143 /141 /142 /144 /142 □ /145 /146 /146 /147 /148 /137 /127 /127 □ /149 /127 /136 /130 /150 /151 /150 /152 /140 /153 /154 /152 /155 /144 /151 /144 /144 /140 /156 /139 /154 /156 /139 /144 /139 /139
/150 /151 /150 /152 /140 /153 /154 /152 /144 /144 /141 /151 /133 /157 /131 /136 /137 /127 /137 /131 /129 /158/159 /131 /132 /157 /128 /132 /160 /131 /133 /128 /129 /147 /161 /162 /146 /157/163 /164 /140 /151 /139 /151 /155 /152 /151 /154 /141 /150 /165/166 /167 /168 □ /163 /169 /170 /171 /172 /164
/168 /132 /173 /162 /174 □ /171 /129 /160 /173 /132 /131 /129 /162 /128 □ /166 /175 /162 /148 /131 /129 /133 /128/139 /151 /154 /144 /140 /145 /131 /132 /157 /128 /132 /160 □ /171 /129 /160 /173 /132 /131 /129 /162 /128 □ /166 /175 /162 /148 /131 /129 /133 /128/139 /151 /142 /153 /139 /176 □ /177 □ /178 □ /164 /179 /168 /169 □ /149 /169 /180 /181 □ /171 /172 /163 /135 /137 /130 □ /163 /128 /129 /147 /173 /132 /182 □ /171 /129 /160 /173 /132 /131 /129 /162 /128 □ /163 /146 /157 /183 /131 /129 /182/139 /151 /142 /150 /154 /140 /141 /142 □ /167 □ /126 /178 /166 /172 /180 /169 /184 /164 □ /164 /170 /166 /167 /168 /166 □ /153 /152 /142
/163 /164 /140 /151 /154 /140 /144
/139 /185 /144 /144 /144 /185 /144 /144 /144
/151 /144 /144 /185 /144 /144 /144
/153
/185 /144 /144 /144
/181 /171 /129 /162 /127 /173 /130 /128 /130
/155 /185 /144 /144 /144 /185 /144 /144 /144
/142
/144 /142 /139 /155 /154 /153 /154 /153/151 /139 /156 /139 /141 /156 /139 /144 /139 /151 /151 /139 /156 /139 /141 /156 /139 /144 /139 /139 /139 /185 /144 /144 /144 /185 /144 /144 /144
/164
/139 /185 /144 /144 /144 /185 /144 /144 /144
/181
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/140 /141 /142 □ /167 □ /126 /178 /166 /172 /180 /169 /184 /164 □ /164 /170 /166 □ /153 /152 /142 /185 □ /165/166 /167 /168 □ /163 /169 /170 /171 /172 /164 /185 □ /163 /164 □ /140 /151 /154 /140 /144 /126
/131 /132 /131 /133 /128 □ /186 /128 /128 /183 /128 /132 /160 □ /163 /146 /136 /128 /132 /131 /133 /128 □ /141 /144 /144 /185 /144 /144 /144 □ /161 /163 /128 /132 /147 /137 /159 /137 /162 /131 /147 /128 □ /148 /146 /127 /130 /128 /132 □ /137 /160 □ /131 /127 /160 /146 □ /131 /129 □ /131 /130 /130 /137 /147 /137 /146 /129 /131 /127 □ /137 /129 /160 /173 /132 /128 /130 □ /183 /128 /132 □ /131 /147 /147 /131 /162 /148 /128 /130 □ /128 /129 /130 /146 /132 /160 /128 /157 /128 /129 /147 □ /149 /187 /151 /139 /144 /141 /144 /154 /144 /139 /161 □ /141 /144 □ /130 /131 /182 /160 □ /129 /146 /147 /137 /162 /128 □ /146 /159 □ /162 /131 /129 /162 /128 /127 /127 /131 /147 /137 /146 /129 □ /131 /129 /130 □ /151 /144 □ /130 /131 /182 /160 □ /129 /146 /147 /137 /162 /128 □ /146 /159 □ /162 /131 /129 /162 /128 /127 /127 /131 /147 /137 /146 /129 □ /159 /146 /132 □ /129 /146 /129 □ /183 /131 /182 /185
/188 /166 /135 /187 /178 /169 /181 /166 /166 /167 /185 □ /164 /126 /166 /172 /168 /167 □ /164 /172 /180 □ /170 /169 /178 /179 /172 /168 /166 /166 /184 /167 /161 □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ □ /168 /189 /166 □ /163 /171 /168 /181 □ /169 /145 □ /187 /164 /178 /135 □ /167 /187 /184 /171 /172 /126 /167 /185 □ /171 /168 /167 □ /169 /145 /145 /171 /163 /171 /164 /178 /167 /185 □ /188 /141
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DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 33
ACORb®
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THE CITY OF PALM SPRINGS
3200 E TAHQUITZ CANYON WAY
PALM SPRINGS, CA 92262
Greg Mavilian
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 34
~ ·· CERTIFICATE OF LIABILITY INSURANCE I
DATE (MM / DD/ YYYY)
10/ 11 / 2022
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW . THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,ANDTHE CERTIFICATE HOLDER .
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) musthaveADDITIONAL INSURED provisions or be endorsed . If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s) .
PRODUCER CONTACT
GREG MAVILIAN (29-36-329 ) NAME:
~AH/~~~O, EXT): (818)957-4010 I FAX 818-957-0031 3606 FOOTHILL BL (A/ C, NO) :
GLENDALE , CA 91214 E-MAIL
ADDREss,[email protected]
INSURER(S)AFFORDING COVERAGE NAIC #
INSURED INSURER A: Truck Insurance Exchange 21709
J & L AUTO BODY INC. INSURER B: Farmers Insurance Exchange 21652 INSURERC: Mid Century Insurance Company 21687
936 S GLENDORA AVE INSURER D: Fire Insurance Exchange 21660 WEST COVINA CA 91790-4256 INSURER E:
INSURER F:
COVERAGES CERTIFICATE NUMBER : REVISION NUMBER :
THIS ISTO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAME ABOVE FOR THE POLICY PERIOD INDICATED . NOTWITHSTANDING ANY
REQUIREMENT , TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECTTOWHICHTHISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO All THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS .
INSR ADDTL SUBR POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER (MM / DD/ YYYY) (MM / DD/ YYYY) LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $
-
CLAIMS-MADE n OCCUR
DAMAGE TO RENTED $ PREMISES (Ea Occurr ence)
MED EXP(Any one person ) $
PERSONAL&ADV INJURY $
GEN'L AGGREGATE LI MIT APPLIES PER: GENERAL AGGREGATE $ 3 POLICY PROJECT LOC PRODUCTS - COM P / OP AGG $
OTHER $
COMB INED SINGLE LI MIT
AUTOMOBILE LIABILITY (Ea accident) $
- ANYA UTO BODILY INJURY(P er pers on) $
- OWN ED AUTOS - SCH EDULED
ON LY AUTOS
BODILY INJURY(P er accident)$
- -
HIRED AUTOS NON-OWNED PROPERTY DAMAG E
- ON LY AUTOS ONLY ( Per accident) $
-
$
UMBRELLA LIAB OCCUR EACH OCCURRENCE $
- -
EXCESS LIAB CLAIMS-MADE AGGREGATE $
DED I I RETENTION$ $
WORKERS COMPENSATION I PER I AND EMPLOYERS' LIABILITY X STATUTE I OTH ER $
ANY PROPRIETOR/ PARTN ER/ Y/ N
11 / 16/ 2021 11 / 16/ 2022
E.L EACH ACCIDENT $ 1,000,000
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N/ A
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A09511820 EXECUTIVE OFFICER/ MEMBER E.L DISEASE EA EMPLOYEE $ 1,000,000 EXCLU DED? (Mandatory in NH) If yes, describe under DESCRIPTION OF
E.L DISEASE POLICY LIMIT $ 1,000,000 OPERATIONS bel ow
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule , may be attached if more space is required) Certificate holder is listed as Additional Insured on the named lnsured 's general liablility policy .
Waiver of Subrogation applies in favor of the certificate holder on the workers compensation policy .
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OFTHEABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION ACORD 25 {2016/03}
3 1-1 769 11 · 15
DATE THEREOF, NOTICE Will BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS .
AUTHORIZED REPRESENTATIVE
© 1988-2015 ACORD CORPORATION. All Rights Reserved
The ACORD name and logo are registered marks of ACORD
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 35
WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY
BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA WC990631
(Ed.6-20)
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) The additional premium forth is endorsement shall be---1:.Q. % of the California workers compensation premium otherwise due on such remuneration, subject to a minimum charge of $250 All written contracts in the state(s) of:
CA
This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 09/27 /22
Insured J & I AUTO BODY INC.
(DBA) J & I AUTO BODY
936SGI ENDORAAVE
WEST COVINA CA 917904256
WC990631
(Ed.6-20)
Policy No. A0951-18-20 Endorsement No.
Insurance Company MID-CENTURY INSURANCE COMPANY
Countersigned By _____________________ _
Includes copyright material of the Workers Compensation Insurance Rating Bureau of California. All rights reserved.
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 36
POLICY NUMBER: 60624-75-75 BUSINESSOWNERS
BP 12 03 07 02
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
LOSS PAYABLE PROVISIONS
This endorsement modifies insurance provided under the following:
BUSINESSOWNERS COVERAGE FORM
SCHEDULE*
Prem. Bldg. Description No. No. Of Property
001 001 ELIGIBLE COVERED PROPERTY
The following is added to the Loss Payment Property
Loss Condition in Section I Property, as shown in
the Declarations or by an "A", "B" or "C" in the Sched ule:
A. Loss Payable
For Covered Property in which both you and a Loss
Payee shown in the Schedule or in the Declarations
have an insurable interest, we will:
1. Adjust losses with you; and
2. Pay any claim for loss or damage jointly to you
and the Loss Payee, as interests may appear.
B. Lender's Loss Payable
1. The Loss Payee shown in the Schedule or in the
Declarations is a creditor (including a mortgage
holder or trustee) with whom you have entered a
contract for the sale of Covered Property, whose
interest in that Covered Property is established
by such written contracts as:
a. Warehouse receipts;
b. A contract for deed;
c. Bills of lading; or
d. Financing statements.
2. For Covered Property in which both you and a
Loss Payee have an insurable interest:
a. We will pay for covered loss or damage to
each Loss Payee in their order of prece
dence, as interests may appear.
Loss Payee Provision Applicable
(Name & Address) (Indicate Parapraph
A, Bore
THE CITY OF PALM SPRINGS, C
*SEE J7107 AMEND TO ADDNL INS 3200 E TAHQUITZ CANYON WAY PALM SPRINGS CA 922626959 LOAN NO. RE: IFB 23-05
b. The Loss Payee has the right to receive loss
payment even if the Loss Payee has started
foreclosure for similar action on the Covered
Property.
c. If we deny your claim because of your acts or
because you have failed to comply with the
terms of this policy, the Loss Payee will still
have the right to receive loss payment if the
Loss Payee:
(1) Pays any premium due under this policy
at our request if you have failed to do so;
(2) Submits a signed, sworn proof of loss
within 60 days after receiving notice from
us of your failure to do so; and
(3) Has notified us of any change in owner
ship, occupancy or substantial change in
risk known to the Loss Payee.
All of the terms of Section I Property will
then apply directly to the Loss Payee.
d. If we pay the Loss Payee for any loss or
damage and deny payment to you because of
your acts or because you have failed to com
ply with the terms of this policy:
(1) The Loss Payee's rights will be trans
ferred to us to the extent of the amount we
pay;and
*Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Declara tions.
BP 12 03 07 02 © ISO Properties, Inc., 2001 Page 1 of2
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 37
(2) The Loss Payee's right to recover the full
amount of the Loss Payee's claim will not
be impaired.
At our option, we may pay to the Loss
Payee the whole principal on the debt plus
any accrued interest. In this event, you will
pay your remaining debt to us.
3. If we cancel this policy, we will give written notice to the Loss Payee at least:
a. 1 o days before the effective date of cancella
tion if we cancel for your nonpayment of pre
mium; or
b. 30 days before the effective date of cancella
tion if we cancel for any other reason.
4. If we do not renew this policy, we will give written notice to the Loss Payee at least 1 O days before
the expiration date of this policy.
C. Contract Of Sale
1. The Loss Payee shown in the Schedule or in the
Declarations is a person or organization you have
entered a contract with for the sale of Covered
Property.
2. For Covered Property in which both you and the
Loss Payee have an insurable interest, we will:
a. Adjust losses with you; and
b. Pay any claim for loss or damage jointly to
you and the Loss Payee, as interests may
appear.
3. The following is added to Paragraph H. other
Insurance in Section Ill Common Policy
Conditions:
For Covered Property that is the subject of a
contract of sale, the word "you" includes the
Loss Payee.
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 38
POLICY NUMBFR: 60624-75-75
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ... ~
FARMERS
INSURANCE
AMENDMENT OF ADDITIONAL INTERESTS
This endorsement modifies insurance provided under the:
BUILDING AND PFRSONAL PROPFRTY COVFRAGF FORM
BUSINFSSOWNFRS COVFRAGF FORM
BUSINFSSOWNFRS POLICY
APARTMFNTOWNFRS POLICY
CONDOMINIUM POLICY
BUSINFSSAUTO COVFRAGF FORM
GARAGFCOVFRAGFFORM
MOTOR CARRI FR COVFRAGF FORM
SCHEDULE
17107
2nd Edition
Premises Number I I Building Number I I Provision Applicable/ Applicable Clause I
THF CITY OF PALM SPRINGS,
ITS OFFICIALS, FMPLOYFFS,
AGFNTSANDVOLUNTFFRS
J7107-ED2 03-16
93-7107
Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of2 J7107201
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 39
Information entered in the schedule above replaces the information required to complete the schedule of the endorsement applicable for the following provision or clause:
X Loss Payable
For Covered Property in which both you and a Loss Payee have an insurable interest.
Lender's Loss Payable
The Loss Payee is a creditor (including a mortgageholder or trustee) with whom you have entered a contract for the sale of Covered Property, whose interest in that Covered Property is established by a written contract.
Contract of Sale
The Loss Payee is a person or organization you have entered a contract with for the sale of Covered Property.
Building Owner Loss Payable
The Loss Payee is the owner of the described building in which you are a tenant.
Other
This endorsement is part of your policy. It supersedes and controls anything to the contrary. It is otherwise subject to all the terms of the policy.
J7107-ED2 03-16
93-7107
Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 2of2 J7107202
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 40
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POLICY NUMBER: 60624-75-75
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ~ -FARMERS
INSURANCE
AMENDMENT OF ADDITIONAL INTERESTS
This endorsement modifies insurance provided under the :
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
BUSINESSOWNERS COVERAGE FORM
BUSINESSOWNERS POLICY
APARTMENTOWNERS POLICY
CONDOMINIUM POLICY
BUSINESS AUTO COVERAGE FORM
GARAGE COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
SCHEDULE
17107
2nd Edition
Premises Number I I Building Number I I Provision Applicable/ Applicable Clause I
THE CITY OF PALM SPRINGS,
ITS OFFICIALS, EMPLOYEES,
AG~NTS AND VQLUN-TEER£----.-
' I
J7107-ED2 03-16
93 -7107
Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of2 J7107201
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 41
Information entered in the schedule above replaces the information required to complete the schedule of the endorsement applicable for the following provision or clause:
X Loss Payable
For Covered Property in which both you and a Loss Payee have an insurable interest.
Lender's Loss Payable
The Loss Payee is a creditor (including a mortgageholder or trustee) with whom you have entered a contract for the sale of Covered Property, whose interest in that Covered.Property is established by a written contract.
Contract of Sale
The Loss Payee is a person or organization you have entered a contract with for the sale of Covered Property .
Building Owner Loss Payable
The Loss Payee is the owner of the described building in which you are a tenant.
Other
I I
This endorsement is part of your policy. It supersedes and controls anything to the contrary. It is otherwise subject to all the terms of the policy.
J7107-ED2 03-16
93-7107
Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 2of2 J7107202
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 42
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POLICY NUMBER: 60624-75-75 BUSINESSOWNERS
BP 12 03 07 02
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
LOSS PAYABLE PROVISIONS
This endorsement modifies insurance provided under the following:
BUSINESSOWNERS COVERAGE FORM
SCHEDULE*
Prem. Bldg. Description . No. No. Of Property
001 001 ELIGIBLE COVERED PROPERTY
The following is added to the Loss Payment Property
Loss Condition in Section I Property, as shown in
the Declarations or by an "A", "B" or "C" in the Sched ule:
A. Loss Payable
For Covered Property in which both you and a Loss
Payee shown in the Schedule or in the Declarations
have an insurable interest, we will:
1. Adjust losses with you; and
2. Pay any claim for loss or damage jointly to you
and the Loss Payee, as interests may appear.
B. Lender's Loss Payable
1. The Loss Payee shown in th~ Schedule or in the
Declarations is a creditor (including a mortgage
holder or trustee) with whom you have entered a
contract for the sale of Covered Property, whose
interest in that Covered Property is established
by such written contracts as:
a. Warehouse receipts;
b. A contract for deed;
c. Bills of lading; or
d . .Financing statements.
2. For Covered Property in which both you and a
Loss Payee have an insurable interest:
a. We will pay for covered loss or damage to
each Loss Payee in their order of prece
dence, as interests may appear.
Loss Payee Provision Applicable
(Name & Address) (Indicate Paragraph
A, B or CJ
THE CITY OF PALM SPRINGS, C
*SEE J7107 AMEND TO ADDNL INS
3200 E TAHQUITZ CANYON WAY
PALM
LOAN
SPRINGS CA 922626959
NO. RE: IFB 23-05
b. The Loss Payee has the right to receive loss
payment even if the Loss Payee has started
foreclosure for similar action on the Covered
Property.
c. If we deny your claim because of your acts or
because you have failed to comply with the
terms of this policy, the Loss Payee will still
have the- riyhno receive loss payment 1f~
Loss Payee:
(1) Pay~ any premium due under this policy
at our request if you have failed to do so;
(2) Submits a signed, sworn proof of loss
within 60 days after receiving notice from
us of your failure to do so; and
(3) Has notified us of any change in owner
ship, occupancy or substantial change in
risk known to the Loss Payee.
All of the terms of Sedtion I Property will
then apply directly to the Loss Payee.
d. If we pay the Loss Payee for any loss or
damage and deny payment to you because of
your acts or because you have failed to com
ply with the terms of this policy:
(1) The Loss Payee's rights will be trans
ferred to us to the extent of the amount we
pay;and
*Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Declara tions.
BP 12 03 07 02 © ISO Properties, Inc., 2001 Page 1 of2
DocuSign Envelope ID: FC7D022C-89AD-4A99-A864-D956DFF5B91A Item 1M - Page 43
(2) The Loss Payee's right to recover the full
amount of the Loss Payee's claim will not
be impaired.
At our option, we may pay to the Loss
Payee the whole principal on the debt plus
any accrued interest. In this event, you will
pay your remaining debt to us.
3. If we cancel this policy, we will give written notice to the Loss Payee at least:
a. 1 o days before the effective date of cancella
tion if we cancel for _your nonpayment of pre
mium; or
b. 30 days before the effective date of cancella
tion if we cancel for any other reason.
4. If we do not renew this policy, we will give written notice to the Loss Payee at least 1 O days before
the expiration date of this policy.
C. Contract Of Sale
1. The Loss Payee shown in the Schedule or in the
Declarations is a person or organization you have
entered a contract with for the sale of Covered
Property.
2. For Covered Property in which both you and the
Loss Payee have an insurable interest, we will:
a. Adjust losses with you; and
b. Pay any claim for loss or damage jointly to
you and the Loss Payee, as interests may
appear.
3. The following is added to Paragraph H. Other
Insurance in Section Ill Common Policy
Conditions:
For Covered Property that is the subject of a
contract of sale, the word "you" includes the
Loss Payee.
' I
CITY COUNCIL STAFF REPORT
DATE: MARCH 14, 2024 CONSENT CALENDAR
SUBJECT: FUNDING AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND
DAP HEALTH
FROM: Scott C. Stiles, City Manager
BY: Department of Finance and Treasury
SUMMARY:
Desert Aids Project (DAP Health) applied for and received a $1 million grant from the state of California. The City is the pass-through entity.
RECOMMENDATION:
Approve the Funding Agreement with DAP Health (Attachment A) for $1 million.
STAFF ANALYSIS:
DAP Health recently applied for and received a $1 million grant from the California Department of Health and Human Services. The State had asked DAP for recommendation of a pass -through entity and the City volunteered to serve in that capacity. On January 11, 2024 the City received the check in the amount of $1 million.
DAP Health plans to use the funds to expand their Coachella Valley Campus which resides at 1695 N. Sunrise Way in Palm Springs ( see Exhibit A of Attachment A). The next phase of the expansion construction will begin late summer 2024. Being the pass - through entity, the City has oversight responsibilities to ensure the funds are being used for what was intended. City staff worked with the City Attorney’s office to create the Funding Agreement in Attachment A.
Once approved, the City will disperse the $1 million upon receipt of invoice from DAP Health.
ALIGNMENT WITH STRATEGIC PLANNING:
This item aligns with the City Council priority of Quality of Life.
Item 1N - Page 1
City Council Staff Report
March 14, 2024 -- Page 2
Funding Agreement between the City of Palm Springs and DAP Health
FISCAL IMPACT:
None.
REVIEWED BY:
Department Director: Kristopher J. Mooney
City Attorney: Jeffrey S. Ballinger
City Manager: Scott Stiles
ATTACHMENTS:
A. DAP Health Funding Agreement
Item 1N - Page 2
ATTACHMENT A
Item 1N - Page 3
55575.18110\42010539.1
1 AGREEMENT FOR DISBURSEMENT AND USE OF FUNDS
BETWEEN THE CITY OF PALM SPRINGS AND
DAP Health
This Agreement for Disbursement and Use of Funds (“Agreement”) is entered into this 14th day of February, 2024, by a nd between the CITY OF PALM SPRINGS (“City”) and DAP Health, a Federally Qualified Health Center, (“Recipient”). City and Recipient are sometimes referred to individually as Party and collectively as Parties.
RECITALS
A. Recipient desires to expand its DAP Health Coachella Valley Campus (see Exhibit “A”)
B
The California Department of Health Care Services under legislative priorities, control section 19.565, is issuing to the City a grant of $1,000,000 to distribute to Recipient so that it could expand its DAP Health Coachella Valley Campus as specified in Exhibit “A”.
C Recipient has submitted a request to C ity for disbursement of $1,000,000, to be used as specified in Exhibit “A”, attached hereto, and incorporated herein by reference.
D. City has considered Reci pient’s request and desires to approve the disbursement of $1,000,000 of funds received from the Department of Health Care Servic es (the “Funds”) to Recipient, to be used as specified in Exhibit “A”, subject to the terms and conditions set forth herein.
AGREEMENT
1. Disbursement and Use of Funds. Within 30 days of City’s receipt of an invoice from Recipient, City shall disburse the Funds to Recipient in a manner convenient to City.
Recipient shall use the Funds as specified in Ex hibit “A”, and shall not use the Funds for any other purpose.
2. Maintenance of Records. Recipient shall keep, preserve, and maintain, for a period of at least three years commencing on the date of City’s disbur sement of Funds to Recipient, all documents and records of any kind relating to Recipient’s use of the Funds.
3. Right to Inspect and Audit. The City may inspect and audit all of Recipient’s documents and records relating to the Recipient’ s use of the Funds to ensure compliance with this Agreement and to ensure Recipient uses th e Funds for authorized purposes. Recipient shall make such documents and records available to City, at the place and in the manner and form specified by City, within 15 days following City ’s request for such documents and records.
Recipient shall furthermore gran t City’s employees or agents access to any land, facilities, or improvements relating to Recipient’s use of the Funds, within a reasonabl e amount of time after City issues written notice to Recipient requesting such access.
Item 1N - Page 4
55575.18110\42010539.1
2 4. Prevailing Wage Laws. Recipient is aware of the requirements of California Labor Code Sections 1720, et se q., 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 ot her requirements on certain "public works" and "maintenance" projects. If the Recipient’s use of the Funds constitutes or involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Recipient ag rees to fully comply with such Prevailing Wage Laws. Recipient shall defend, indemnify a nd hold the City, its officials, officers, employees and agents 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. It shall be mandatory upon the Recipient, its consultants, and all subconsultants to comply with all applicable California Labor Code provisions, which may include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contract ors and subcontractors (Labor Code Section 1777.1). If Recipient’ s use of the Funds constitutes or involves an applicable “public works” or “maintenan ce” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Recipient, its consultants, and all s ubconsultants must be registered with the Department of Industr ial Relations. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Recipient’s sole responsibility to comply with all applicable registration and labor compliance requirements.
5. Indemnification. To the fullest extent permitted by law, Recipient agrees to defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents and volunteers from and against any and a ll claims, damages, losse s, expenses, fines, penalties, judgements, de mands and defense costs, arising out of or in connection with this Agreement or Recipient’s use of the Funds, except if such loss or damage resulted from the sole gross negligence or willful misconduct of the City.
6. Authority to Enter Agreement. Recipient and City each respectively represent, covenant, and warrant that they are authorized to enter into and execute this Agreement and to bind each respective Party.
7. Entire Agreement. This Agreement contains the entire agreement between the Parties related to the matters specified herein, and supersedes any prior oral or written statements or agreements between the Parties related to such matters.
8. Compliance with Laws and Funding Require ments. Recipient shall comply with any and all applicable laws a nd regulations before, during, and after using the Funds. Recipient shall comply with any and all applicable laws, regulations, and guidelines in any way related to the funding program(s) contemplated by this Agreement.
[signatures on the following page]
Item 1N - Page 5
55575.18110\42010539.1
3 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set forth above.
______________________________
RECIPIENT
By:
Name: David Brinkman MBA
Title: Chief Executive Officer
CITY OF PALM SPRINGS
By: __________________________
Scott C. Stiles
City Manager
APPROVED AS TO FORM:
By: __________________________
Jeff Ballinger
City Attorney
Item 1N - Page 6
A-1
EXHIBIT A
Approved Use of Funds
(Attachment Behind This Page)
Item 1N - Page 7
Exhibit A
February 5, 2024
Scott C. Stiles, ICMA-CM
City Manager
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Re: DAP Health Campus Expansion Project and Request for Disbursement of $1MM of Funds Dear Mr. Stiles:
We are pleased to provide the City of Palm Springs detail on DAP Health’s (DAP) $30 million campus expansion. DAP is expanding service delivery and increasing capacity for patient growth through medical, behavioral, addiction, and dental healthcare and supportive social services. Increased capacity will directly benefit the residents of Palm Springs.
Description of the Project:
In 2018 DAP acquired the 13-year-old Riverside County clinic building adjacent to our original service delivery site, combining the two formal addresses into one as DAP’s single Federally Qualified Health Center delivery site. This building added an additional 30,000 square feet of clinic space, alleviating a severe space challenge in our primary building that had limited our ability to serve ever increasing numbers of patients. The building acquisition became the focus of our multi-year campus expansion project. The expansion is divided into multiple projects, each involving renovations and/or construction of clinics and affordable housing.
Increased capacity will directly benefit residents of the City of Palm Springs and surrounding Coachella Valley. With four decades of service to low-income, underserved populations in the City of Palm Spring and Coachella Valley, DAP Health is well aware that negative social determinants of health, including lack of access to healthcare, poverty, mental illness, substance use disorder, food and housing insecurity, and incidence of infectious disease, significantly impact our community’s health and wellbeing.
DAP Health’s Palm Springs Sunrise Campus serves nearly 10,000 patients. Over 24% of patients served are living below 150% of the Federal Poverty Level. Of those patients living within DAP Health’s immediate service area of Palm Springs/North Palm Springs (92262, 92264, and 92258), 26% lack health insurance; and 46% are beneficiaries of Medicare/Medicaid. DAP Health’s campus expansion project will increase our City’s ability to close the gap in primary, mental health, and substance use disorder care as well as affordable housing. Just as DAP Health has been meeting the need for treatment Item 1N - Page 8
DAP He,alth
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and care of HIV, Hepatitis C, Sexually Transmitted Infections, and COVID-19 head-on, our team of infectious disease specialists stands ready to protect our community’s health and well-being when the next unexpected health crisis arrives.
We continue to reach out to the City of Palm Springs low-income community to emphasize our comprehensive services offered in a welcoming, humanitarian, and wellness-oriented environment. DAP Health projects that when it’s Palm Springs Sunrise Campus expansion project is complete, we will be providing services to 25,000 unique individuals (150% increase); including 16,000 medical clinic patients (88% increase); 8,800 sexual wellness patients (175% increase); 5,600 behavioral health patients (575% increase); 1,500 dental clinic patients (56% increase), as well as providing 61 additional housing units on DAP’s campus, adjacent to our Federally Qualified Health Center campus.
BUDGET AND EXPANSION COMPONENT:
New Pavilion Expansion; Construction budget, $9,400,000; The New Pavilion Building is the focal point of DAP Health’s integrated campus, serving as the main entrance for access to DAP’s Health Center and client wellness services. The Northwest portion of the combined campus expansion includes a Pharmacy Wing with a dedicated laboratory diagnostic testing site, Gallery, and connection to West Corridor. The Southwest expansion includes a modified multipurpose room, and connection to the 200 Suites Building, accommodating after-hours access to DAP’s Sexual Wellness Clinic. The Pavilion design includes horizontal blade louvers, horizontal blade roof planes, and large storefront windows for natural light. Façade improvements to the existing buildings flanking the pavilion will provide a unified westerly design and will avoid extensive demolition.
Request for Disbursement of Funds: Soft Cost Budget
Budget Planning: Asaro Inc. $3,000
Design and Layout: Space
Design & Display Inc.
$12,000
Architecture: Interactive
Design Corp.
$1,085,763
Engineering:
Michael Baker International
$210,047
Total Soft Costs: $1,310,810
Item 1N - Page 9
DAP He,alth
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Project Justification:
DAP Health’s service area contains designated health professional shortage areas for primary care and mental healthcare including census tracts 0448.04 and 0448.07, both in Palm Springs. It is well- documented that the uninsured are less likely to access healthcare generally, including important preventative services or treatments for chronic conditions such as asthma, diabetes, and hypertension, making them more likely to develop severe yet preventable health conditions and to be diagnosed at more advanced stages of their diseases. But access to healthcare here in Palm Springs is limited. When Vision Forward is actualized, DAP Health will have to capacity to grow from 10,000 people served today to 25,000 people.
As a Federally Qualified Health Center (FQHC), DAP is resolute in our responsibility to treat and care for patients in the City of Palm Spring regardless of their insurance status or ability to pay. With extensive experience serving vulnerable populations for nearly four decades, DAP Health has played a vital role in the health of our City of Palm Spring communities. The need to provide healthcare and comprehensive supportive services will only become more important as our population ages, grows, diversifies, and faces new, old, and yet-to-materialize healthcare challenges. DAP aims to meet the community’s needs on a unified campus providing high quality primary and preventive healthcare, dentistry, mental health services, substance use recovery, and housing. DAP Health’s goal is to improve the overall health of our entire community — especially the marginalized — by multiplying the number of people we can serve within the City of Palm Spring community.
Request:
DAP requests the City of Palm Springs’ disbursement of State funds to DAP’s campus expansion project in the amount of $1,000,000.
In partnership,
David Brinkman, MBA
Chief Executive Officer
Item 1N - Page 10
DAP He,alth
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CITY COUNCIL STAFF REPORT
DATE: M ARCH 14, 2024 CONSENT CALENDAR
SUBJECT: SECOND READING AND ADOPTION OF AN ORDINANCE OF THE CITY
OF PALM SPRINGS, CALIFORNIA, AMENDING THE PALM SPRINGS
MUNICIPAL CODE TO PROVIDE THAT CANNABIS DISPENSARY
BUSINESS PERMIT APPLICATIONS WILL NOT BE ACCEPTED,
PROCESSED OR APPROVED BY THE CITY BETWEEN JANUARY 1,
2024, AND DECEMBER 31, 2027
FROM: Scott C. Stiles, City Manager
BY: Department of Special Program Compliance
SUMMARY:
This is the second reading of an ordinance to adopt a moratorium establishing a four-year moratorium providing that cannabis dispensary business permit applications will not be accepted or processed or approved by the City between January 1, 2024, and December 31, 2027. Included in the ordinance is language clarifying Ordinance 2093.
RECOMMENDATION:
Waive the second reading of the text in its entirety, read by title only, and adopt Ordinance No. _____, “ AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA,
AMENDING THE PALM SPRINGS MUNICIPAL CODE TO PROVIDE THAT CANNABIS
DISPENSARY BUSINESS PERMIT APPLICATIONS WILL NOT BE ACCEPTED, PROCESSED OR APPROVED BY THE CITY, BETWEEN JANUARY 1, 2024, AND DECEMBER 31, 2027.”
STAFF ANALYSIS:
On February 8, 2024, Council directed City staff to bring back a four -year moratorium providing that cannabis dispensary business permit applications will not be accepted, processed, or approved by the City, between January 1, 2024, and December 31, 2027.
On February 29, 2024, City staff returned to Council with the first reading (introduction) based on Council direction. At the February 29, 2024, meeting City staff also presented the second reading of Ordinance 2083, amending Palm Springs Municipal Code 5.55.
At the February 29 Council meeting, the City Council included the following provisions Item 1O - Page 1
City Council Staff Report
March 14, 2024 -- Page 2
Cannabis Ordinance Revisions – Second Reading
into the ordinance that is before the Council tonight for second reading:
• Credit card service fees, clarifying the exclusion fees from the calculation of gross receipts for local tax calculation.
• Dispensary ownership establishing a maximum number of ownership interest s each permit holder may have.
• Employee livescan receipt. Providing that an employee may be hired on a probationary status for a period of no more than fourteen (14) days if the receipt of an employee live scan is not received within 72 hours upon receipt by the City.
This report provides for the City Council to waive further reading and adopt the ordinance.
The ordinance shall be effective thirty (30) days from adoption, or as may be otherwise implemented by direction of City Council.
ALIGNMENT WITH STRATEGIC PLANNING
:
The ac
tivities contained in the accompanying ordinances and resolution align with the City Council’s Strategic Plan, namely the Quality of Life: Economic Development goal to “evaluate the City’s existing cannabis program.”.
REVIEWED BY:
Department Director: Veronica Goedhart
Assistant City Manager:
City Manager: Scott Stiles
ATTACHMENTS:
A. Or
dinance
Item 1O - Page 2
ATTACHMENT A
Item 1O - Page 3
55575.18195\42035491.2
ORDINANCE NO. ____
AN ORDINANCE OF THE CITY OF PALM SPRINGS ,
CALIFORNIA, AMENDING THE PALM SPRINGS
MUNICIPAL CODE TO PROVIDE THAT CANNABIS
DISPENSARY BUSINESS PERMIT AP PLICATIONS WILL
NOT BE ACCEPTED, PROCESSED OR APPROVED BY
THE CITY, BETWEEN JANUARY 1, 2024 AND DECEMBER
31, 2027
City Attorney’s Summary
This ordinance provides for a temporary pause on the
acceptance, processing or approval of cannabis dispensary business permits, during the period of January 1, 2024
through December 31, 2027.
WHEREAS, as of February 8, 2024, the existing cannabis retail industry in Palm Springs includes twenty six ( 26) operating Storefront Cannabis Storefront Retail businesses, eight (8) permitted-nonoperational Cannabis Retailer businesses, and one (1) Cannabis Retailer pending ; and
WHEREAS, based on data from the City of Palm Springs Office of the Finance and Treasury regarding revenue trends among cannabis retail businesses, it appears doubtful that the Palm Springs market can sustain additional cannabis dispensary businesses in a number greater than those already in the application pipeline; and
WHEREAS, in addition, new applicants for cannabis retail businesses permits slow the pace of the permitting process for earlier applicants, as limited City resources must be distributed to process pending applications. Many Equity Program applicants qualify for a reduction or waiver of permit fees, so the burden of processing additional applications must largely be borne by scarce General Fund revenues; and
WHEREAS, the City Council finds that the above considerations warrant the City’s ceasing to accept, process or grant new applications for cannabis retail businesses for a period of four (4) years.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1
. Palm Springs Municipal Code section 5.55.095 is hereby amended to add a new subsection (C) to read as follows:
“(C) Applications for Cannabis Business Permits (Dispensaries)
The City Manager shall decline to accept for processing, and shall not process or approve, any application for a Cannabis Business Permit Item 1O - Page 4
55575.18195\42035491.2
Ordinance No. _____
(Dispensaries) under Section 5.55.095, if such application was not deemed complete prior to January 1, 2024. This subsection shall not apply to Microbusinesses. No later than June 30, 2027, the City Manager shall submit to the City Council a report that analyzes various impacts of this ordinance, including its financial impacts on the City and the City’s cannabis industry, operational impacts on the Office of Special Program s, and impacts on City business districts and neighborhoods.”
SECTION 2
. Palm Springs Municipal Code section 5.55.095 is hereby amended to add a new subsection (D) to read as follows:
“An adult -use cannabis permit shall not be issued or transferred to any person who is the owner of, or has a financial a financial interest in, two dispensary cannabis businesses operating in the City or who has obtained two dispensary cannabis permits to operate in the City.”
SECTION 3
. Palm Springs Municipal Code section 3.42.020, definition of “Gross Receipts” is hereby amended to read as follows:
“ ‘Gross receipts.’ Except as otherwise specifically provided in this code or by regulation authorized by this code, "gross receipts" means the total amount actually received or receivable from all sales; the total amount or compensation actually received or receivable for the performance of any act or service, of whatever nature, for which a charge is made or credit allowed, whether or not such act or service is done as a part of or in connection with the sale of materials, goods, wares or merchandise; discounts, rents, royalties, fees, commissions, dividends, and gains realized from trading in stocks or bonds, however designated. Included in "gross receipts" shall be all receipts, cash, credits and property of any kind or nature, without any deduction or set off therefrom on account of the cost of the property sold, the cost of materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever. Collection of any State excise tax shall be excluded from “gross receipts. Credit card fees s hall be exclude from the definition of “gross receipts.” ”
SECTION 4
. Palm Springs Municipal Code section 5.55.200(A)(21) is hereby amended to read as follows:
“21. Any new supervisors, employees or other persons otherwise engaged in the operation of the Adult-Use Cannabis Business must submit their information to the City Manager within 10 days prior to their new ownership, employment, or engagement, including finger prints and other necessary information for a background check. In the event an employee background check takes more than seventy two (72) hours to receive a response from the City, employees may be hired on a probationary status Item 1O - Page 5
55575.18195\42035491.2
Ordinance No. _____
for a period of no more than fourteen (14) days pending the final City approval of their background check.”
SECTION 5. Sunset Date
. Unless amended by future ordinance, Section 1 of this ordinance shall expire by operation of law on December 31, 2027. Upon expiration of this ordinance, subsection (C) of Section 5.55.095 shall be removed from the Palm Springs Municipal Code.
SECTION 6. CEQA. This action is not subject to the California Environmental Quality Act (Public Resources Code Section 21000 et. seq.) pursuant to Section 15060(c)(2) and 15060(c)(3) of the State Guidelines, because the resolution will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a “project,” as that term is defined in Section 15378 of the State Guidelines.
SECTION 7. Severability
. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable.
The City Council hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof.
PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL THIS _____ DAY OF ______________, 2024.
JEFFREY BERNSTEIN
MAYOR
ATTEST:
BRENDA PREE, MMC
CITY CLERK
Item 1O - Page 6
55575.18195\42035491.2
Ordinance No. _____
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, BRENDA PREE, City Clerk of the City of Palm Springs, California, do hereby certify that Ordinance No. ____ is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Springs City Council on _________ and adopted at a regular meeting of the City Council held on __________ by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ______________, _________.
BRENDA PREE, MMC
CITY CLERK
Item 1O - Page 7
CITY COUNCIL STAFF REPORT
DATE: M ARCH 14, 2024 PUBLIC HEARING
SUBJECT: A REQUEST BY DTPS B- 3, LLC FOR A DEVELOPMENT AGREEMENT
RELATED TO AN APPROVED MIXED-USE DEVELOPMENT INVOLVING
45 RESIDENTIAL CONDOMINIUM UNITS AND RETAIL ON BLOCK B OF
THE DOWNTOWN PALM SPRINGS SPECIFIC PLAN AT THE
NORTHEAST CORNER OF BELARDO ROAD AND MUSEUM WAY; 200
NORTH BELARDO ROAD, ZONE CBD (CASE DA-2023-0008)
FROM: Scott C. Stiles, City Manager
BY: Department of Planning Services
SUMMARY:
This is a request to establish a Development Agreement (“Agreement”) for an approved mixed-use project located within the downtown redevelopment project at the northeast corner of Belardo Road and Museum Way (“Project”). The Agreement would extend the Project entitlements and vest the approvals from the current expiration date of May 3, 2024, through July 31, 2030, allowing the Applicant/Developer time to resolve a dispute with the State Department of Industrial Relations (“DIR”).
RECOMMENDATION:
1. Open the public hearing and take testimony;
2. Waive the reading of the text in its entirety, and introduce for first reading an ordinance entitled, “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT WITH DTPS B -3, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY,
RELATED TO THE ENTITLEMENTS FOR A MIXED -USE DEVELOPMENT INVOLVING 45 RESIDENTIAL CONDOMINIUM UNITS AND RETAIL ON BLOCK
B OF THE DOWNTOWN PALM SPRINGS SPECIFIC PLAN AT THE
NORTHEAST CORNER OF BELARDO ROAD AND MUSEUM WAY; 200 NORTH BELARDO ROAD.”
BUSINESS PRINCIPAL DISCLOSURE:
The application was filed by DTPS B-3, LLC, a California Limited Liability Company. The Public Integrity Disclosure Form for this entity is included as an attachment to the report.
Item 2A - Page 1
City Council Staff Report
March 14, 2024 -- Page 2
DTPS B-3, LLC Development Agreement, DA-2023-0008
PROJECT DESCRIPTION:
The Applicant, DTPS B -3, LLC, has requested that the City approve a development agreement. Development agreements are a land use tool authorized under state law (Government Code Section 65864, et. seq.) and the Palm Springs Zoning Code (PSZC
94.08.00). As the name implies, a development agreement is a contract between a project applicant and the City. At a minimum, a development agreement must specify the duration of the agreement, the permitted uses of the property, the density or intensity of the use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes.
The proposed Development Agreement is seeking to extend the existing entitlements associated with a mixed- use condominium building proposed on a 0.84- acre site identified as Block “B” in the Downtown Palm Springs Specific Plan, including:
(1) A Major Architectural Review Application, Case 3.3908 MAJ, for the construction of a six -story, 73,300-square foot building with 45 residential condominiums and ground floor retail space
1 and
(2) A Tentative Tract Map Application, Case TTM 37935, for a one-lot subdivision to map the 0.84-acre parcel for condominium purposes2
The Project site is bound by Andreas Road to the north, Belardo Road to the west, Museum Way to the south. The Downtown Park is located to the west and the Rowan hotel is located to the south. A pedestrian paseo and a two-story mixed-use building exist to the east.
BACKGROUND:
Related Relevant City Actions
01/14/21
The City Council held a public hearing on the Major Architectural and Tentative Tract Map applications and adopted resolutions approving the entitlements.
05/03/21
The Architectural Advisory Committee reviewed a ground floor activation plan for the Major Architectural approval, as required by City Council conditions, and unanimously approved the plan subject to conditions.
01/25/23
The Planning Commission held a public hearing on an extension of the entitlements and granted a one- year extension from May 4, 2023, to May 3, 2024.
02/28/24
The Planning Commission held a public hearing on the subject Development Agreement and voted 7 to 0 to recommend City Council conditionally approve the Agreement.
02/29/24 The City Council approved Tract Map 37935.
1 City Council Resolution No. 24845
2 City Council Resolution No. 24846
Item 2A - Page 2
City Council Staff Report
March 14, 2024 -- Page 3
DTPS B-3, LLC Development Agreement, DA-2023-0008
Related Building Permits
11/09/21
Applicant submitted building permit application to the Building & Safety Department and paid a deposit of $24,938 for plan check review. (Set I for Building Permit Application #2021-5083)
03/29/22 Applicant submitted revised construction drawings to the Building & Safety Department. (Set II for Building Permit Application #2021-5083) 06/15/22
Applicant submitted revised construction drawings to the Building & Safety Department. (Set III for Building Permit Application #2021 - 5083)
Neighborhood Notice
02/15/24
Notice of public hearing mailed to addresses within 500-feet of the site, notifying that the subject application would be considered by the Planning Commission at a public hearing on February 28, 2024. The same notice was also emailed to Neighborhood Organizations within one mile of the project site and published in the local newspaper. 02/29/24
Notice of public hearing mailed to addresses within 500-feet of the site, notifying that the subject application would be considered by the City Council at a public hearing on March 14, 2024. The same notice was also emailed to Neighborhood Organizations within one mile of the project site and published in the local newspaper.
STAFF ANALYSIS:
The Applicant for the mixed- use building in question is requesting a Development Agreement, Case DA-2023-0008 in order to extend the Project entitlements and vest the approvals until July 2030, as identified in Section 3.02 (Term) of the Agreement. This is a period greater than normally permitted by the Palm Springs Zoning Code (PSZC), which generally limits entitlements to two years with up to an additional two years through an extension of time process (a total of four years maximum). In this case, the Project was approved in 2021, valid for a period of two years, and granted a one- year extension by the Planning Commission in 2023. The Time Extension ordinance, PSZC Section
94.12.00, would permit one additional year, if approved by the Planning Commission. The Applicant would need to start construction and finalize the subdivision map to exercise the entitlements no later than May 3, 2025 if the additional one- year extension was granted.
The proposed Agreement is necessary to ensure the entitlements remain valid while a legal dispute is resolved with the State Department of Industrial Relations (“DIR”). Upon completing the initial phases of the downtown redevelopment, a claim was filed wit h the DIR that asserted the Rowan Hotel, the subject Project (formerly the Virgin Hotel site) and the other retail redevelopments associated with the Downtown Redevelopment as being subject to prevailing wage laws. The DIR determined that these projects are subject to prevailing wage laws as public works projects. The applicant continues to dispute this Item 2A - Page 3
City Council Staff Report
March 14, 2024 -- Page 4
DTPS B-3, LLC Development Agreement, DA-2023-0008
position in court, due to it impacting the cost of developing the Project and future phases of the overall downtown development. The City is a party to those legal proceedings and staff agree that an extension is necessary to maintain the entitlements while that process concludes.
The Development Agreement provides an opportunity for the City to negotiate an appropriate and proportional benefit in return for benefits being approved by the City. The benefit received by the Applicant is a longer term to exercise the proposed development and begin construction (from four years to roughly nine years). Section 4.03 of the Agreement identifies the proposed public benefits, which were initially identified as the creation of housing downtown, continuation of development in Specific Plan, creation of job opportunities and creation of live/work environment downtown.
Planning Commission Review:
In accordance with Section 94.08.00 of the PSZC, the Planning Commission held a public hearing and reviewed the subject Agreement at its regularly scheduled meeting of February 28, 2024. At this hearing, the Commission voted 7 to 0 to recommend City Council approve the Agreement with the following revisions:
• Section 4.03 Public Benefit by Developer – specify public benefits provided by the overall downtown redevelopment, such as the new park, public improvements, sidewalk and paseo amenities, etc.
• Section 7.09 Timing of Project Construction and Completion – include the 24- month construction completion (referenced in Section 7.10) within this section of the Agreement
The Applicant has revised the draft Agreement to include these recommendations. The revised draft Agreement is included as Attachment E.
FINDINGS:
PSZC Section 94.0 8.00(A)(12)(b) requires that the Planning Commission make a recommendation to the City Council, after considering five criteria. The Commission affirmatively found that the proposed Agreement met the required findings, as provided in the following analysis:
Criteria and Findings [PSZC 94.08.00(A)(12)(b)] Compliance
1. The development agreement i s consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan;
Y
Item 2A - Page 4
l~I __ _
City Council Staff Report
March 14, 2024 -- Page 5
DTPS B-3, LLC Development Agreement, DA-2023-0008
Criteria and Findings [PSZC 94.08.00(A)(12)(b)] Compliance The Development Agreement provides more time to complete a portion of the overall redevelopment of the former Fashion Plaza with a mixed -use building consisting of residential condominiums and retail. The proposed development would provide residential options downtown and street-facing retail, which is consistent with the following policies:
• General Plan Policy LU10.2: Encourage development of
housing and mixed- use land uses Downtown to increase
activity in this area.
• Downtown Palm Springs Specific Plan, Guiding Principle I.C.4.:
A balance of commercial and residential
development which assures the success of the area by
increasing the number of homes in the downtown, thereby increasing the customer base of the commercial uses.
• Downtown Palm Springs Specific Plan, Guiding Principle I.C.5.:
The development of residential units which relate
synergistically to the commercial development around
them, and encourage a pedestrian lifestyle with little use for the automobile.
The Agreement would aid the City in achieving the above policies and is consistent with policies in the General Plan and Downtown Palm Springs Specific Plan.
2. The development agreement i s compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located;
Y
The site associated with the Project is located within the Central Business District zone of the Downtown Palm Springs Specific Plan, which authorizes mixed-use buildings with multi -family dwellings/condominiums and retail as permitted pursuant to Table III-
1. The Agreement would authorize previously granted
entitlements to proceed at a future time that doesn’t extend beyond July of 2030. These entitlements consist of a Major Architectural Review Application approved by City Council Resolution No. 24845 for the construction of a mixed-use building on Block “B” of the Downtown Palm Springs Specific Plan, and the Tentative Tract Map Application approved by City Council Resolution No. 24846 for a one-
lot subdivision for condominium purposes. The
Agreement doesn’t seek to permit other uses that would be inconsistent with the Downtown Palm Springs Specific Plan.
3. The development agreement is in conformity with public convenience, general welfare and good land use practice; Y Item 2A - Page 5
City Council Staff Report
March 14, 2024 -- Page 6
DTPS B-3, LLC Development Agreement, DA-2023-0008
Criteria and Findings [PSZC 94.08.00(A)(12)(b)] Compliance The Agreement facilitates the future development of Block B of the Downtown Palm Springs Specific Plan. The Project will provide new opportunities for residential and retail downtown as part of the overall redevelopment of the former Fashion Plaza, while the applicant resolves a legal dispute impacting the financial feasibility of the project. This will provide greater certainty with costs associated with the Project, assuring expeditious completion of the development after commencement of construction, and reducing exposure to public inconveniences with a delayed construction project. Once completed, the Project will improve the general welfare of the immediate surrounding by activating a vacant site and will complete another component of the Downtown Palm Springs Specific Plan in accordance with good land use practice.
4. The development agreement will not be detrimental to the health, safety and general welfare; Y
The Project will be built in accordance with current uniform building codes with access to all necessary utilities and public services, ensuring the health, safety and general welfare are protected.
Moreover, the terms of the Agreement would not result in detrimental impacts.
5. The development agreement w ill not adversely affect the orderly development of property or the preservation of property values. Y The Agreement would allow the future development of an entitled site to be developed with a project found to be consistent with the Downtown Palm
Springs Specific Plan. Property values are not
expected to be impacted by the approval of the Development Agreement, as the site will remain vacant and subject to the city’s Property Maintenance Standards ordinance (Section 93.19.00 of the Palm Springs Zoning Code).
The City Council may approve ( or disapprove) the recommendation of the Planning Commission, after conducting a public hearing, pursuant to Section 94.08.00(A)(13) of the PSZC.
ENVIRONMENTAL ASSESSMENT
:
The Project associated with the Development Agreement is part of a larger project (“Downtown Palm Springs Specific Plan,” formerly the “Museum Market Plaza Specific Plan”) evaluated and analyzed under the California Environmental Quality Act (“CEQA”).
The City certified an Environmental Impact Report (EIR) which analyzed impacts related to the Museum Market Plaza Specific Plan in 2009, which was filed with the State Item 2A - Page 6
City Council Staff Report
March 14, 2024 -- Page 7
DTPS B-3, LLC Development Agreement, DA-2023-0008
Clearinghouse under SCH No. 2008061084 . Subsequent addenda have been prepared to analyze changes within the Specific Plan area.
No further environmental review is required (Public Resources Code section 21166; CEQA Guidelines section 15162). No changed circumstances, changes in the environment, or changes in regulations have occurred since the certification of the EIR or the adoption of the addenda. Based on the requirements of the Public Resources Code and the CEQA Guidelines, no additional environmental analysis is required for this Agreement and the mitigation measures previously imposed within the EIR will apply.
FISCAL IMPACT:
No fiscal impact.
REVIEWED BY:
Department Assistant Director: David Newell
Department Director: Christopher Hadwin
Assistant City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Vicinity Map
B. Aerial Map
C. Draft Ordinance
D. Justification Letter
E. Draft Development Agreement
F. Public Integrity Disclosure Form
G. Public Comment
Item 2A - Page 7
ATTACHMENT A
Item 2A - Page 8
Department of Planning Services
Vicinity Map
CITY OF PALM SPRINGS
Development Agreement, Case No. DA-2023-0008
DTPS 3-B, LLC
Northeast corner of North Belardo Road and Museum Way
Item 2A - Page 9
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Item 2A - Page 10
Department of Planning Services
Aerial Map
CITY OF PALM SPRINGS
Development Agreement, Case No. DA-2023-0008
DTPS 3-B, LLC
Northeast corner of North Belardo Road and Museum Way
Item 2A - Page 11
ATTACHMENT C
Item 2A - Page 12
ORDINANCE NO. _____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, ESTABLISHING SECTION
94.08.10 OF THE ZONING CODE AND APPROVING A
DEVELOPMENT AGREEMENT WITH DTPS B -3, LLC, A
CALIFORNIA LIMITED LIABILITY COMPANY, RELATED TO
THE ENTITLEMENTS FOR A MIXED-USE DEVELOPMENT
INVOLVING 45 RESIDENTIAL CONDOMINIUM UNITS AND
RETAIL ON BLOCK B OF THE DOWNTOWN PALM
SPRINGS SPECIFIC PLAN AT THE NORTHEAST CORNER
OF BELARDO ROAD AND MUSEUM WAY; 200 NORTH
BELARDO ROAD.
City Attorney’s Summary
This Ordinance approves a Development Agreement for a
term ending July 31, 2030, unless otherwise terminated or modified as set forth in the Development Agreement, vesting the discretionary entitlements associated with a mixed-use building with 45 residential condominium units and retail on Block B of the Downtown Palm Springs Specific Plan ,
identified by Case No.’s 3.3908 MAJ and TTM 37935.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS FINDS AND DETERMINES AS FOLLOWS:
A. On December 2, 2009, the City Council adopted Resolution No. 22625 certifying an Environmental Impact Report (SCH No. 2008061084), approving a Mitigation Monitoring and Reporting Program and adopting a Statement of Overriding Considerations (“Specific Plan EIR”), for the Museum Market Plaza Specific Plan and enacted Ordinance No. 1764, thereby approving the Museum Market Plaza Specific Plan which covers the land use, development standards and design guidelines for the Museum Market Plaza Specific Plan area.
B. On October 17, 2012, the City Council certified an Addendum to the Specific Plan EIR (Addendum #1), and approved a Conformity Review for implementation of a revised Downtown Revitalization Plan entitled “Downtown Palm Springs” as conforming to and being consistent with the approved Museum Market Plaza Specific Plan.
C. On March 2, 2016, and reaffirmed on April 6, 2016, the City Council adopted Resolution No. 23977, certifying an Addendum to the Specific Plan EIR (Addendum #2), renaming the Specific Plan as the Downtown Palm Springs Specific Plan (“Specific Plan”), and finding that Addendum #2 prepared for the Specific Plan appropriately described the impacts of the Downtown Palm Springs Specific Plan.
Item 2A - Page 13
Ordinance No. ______
D. DTPS B-3, LLC, a California limited liability company, (“Applicant”) filed applications with the City, in accordance with the Specific Plan and pursuant to Section
94.04.00 of the Zoning Code for a Major Architectural Application (Case 3.3908 MAJ) and Title 9 of the Municipal Code for a Tentative Tract Map (Case TTM 37935) , to allow the construction of a mixed -use building with 45 residential condominium units and ground floor retail at the northeast corner of Belardo Road and Museum Way and a one -lot subdivision of a 0.84 -acre lot for condominium purposes f or said mixed -use building (“Project”). These applications were conditionally approved by City Council Resolution Nos. 24845 and 24846 (“Entitlements”), effective on May 3, 2021 for two years, and extended by the Planning Commission through May 3, 2024.
E. The Applicant filed an application with the City, pursuant to Section 94.08.00 of the Zoning Code, for a Development Agreement (Case DA -2023-0008) to establish terms and obligations on the Project, including a request to vest and extend the Entitlements through July 31, 2030.
F. On February 28, 2024, a public hearing to consider Case DA-2023-0008 was held by the Planning Commission in accordance with applicable law. At said meeting, the Planning Commission carefully reviewed and considered all of the evidence presented in connection with the hearing on the application, including, but not limited to, the staff report, and all written and oral testimony presented, and voted 7 to 0 to recommend conditional approval to the City Council , after determining that the application met required findings in Section 94.08.00(A)(12)(b) of the Zoning Code, as follows:
1. The development agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan.
The Development Agreement provides more time to complete a portion of the overall redevelopment of the former Fashion Plaza with a mixed -use building consisting of residential condominiums and retail. The proposed development would provide residential opti ons downtown and street -facing retail, which is consistent with the following policies:
• General Plan Policy LU10.2: Encourage development of housing and mixed-use land uses Downtown to increase activity in this area. • Downtown Palm Springs Specific Plan, Guiding Principle I.C.4.: A balance of commercial and residential development which assures the success of the area by increasing the number of homes in the downtown, thereby increasing the customer base of the commercial uses.
• Downtown Palm Springs Specific Plan, Guiding Principle I.C.5.: The development of residential units which relate synergistically to the commercial development around them, and encourage a pedestrian lifestyle with little use for the automobile.
Item 2A - Page 14
Ordinance No. ______
The Agreement would aid the City in achieving the above policies and is consistent with policies in the General Plan and Downtown Palm Springs Specific Plan.
2. The development agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located.
The site associated with the Project is located within the Central Business District zone of the Downtown Palm Springs Specific Plan, which authorizes mixed-use buildings with multi -family dwellings/condominiums and retail as permitted pursuant to Table II I-1. The Agreement would authorize previously granted entitlements to proceed at a future time that doesn’t extend beyond July of 2030. These entitlements consist of a Major Architectural Review Application approved by City Council Resolution No. 24845 for the construction of a mixed - use building on Block “B” of the Downtown Palm Springs Specific Plan, and the Tentative Tract Map Application approved by City Council Resolution No. 24846 for a one-lot subdivision for condominium purposes. The Agreement doesn’t seek to permit other uses that would not otherwise be inconsistent with the Downtown Palm Springs Specific Plan.
3. The development agreement is in conformity with public convenience, general welfare and good land use practice.
The Agreement facilitates the future development of Block B of the Downtown Palm Springs Specific Plan. The Project will provide new opportunities for residential and retail downtown as part of the overall redevelopment of the former Fashion Plaza, while t he applicant resolves a legal dispute impacting the financial feasibility of the project. This will provide greater certainty with costs associated with the Project, assuring expeditious completion of the development after commencement of construction and reducing exposure to public inconveniences with a delayed construction project. Once completed, the Project will improve the general welfare of the immediate surrounding by activating a vacant site and will complete another component of the Downtown Palm S prings Specific Plan in accordance with good land use practice.
4. The development agreement will not be detrimental to the health, safety and general welfare.
The Project will be built in accordance with current uniform building codes with access to all necessary utilities and public services, ensuring the health, safety and general welfare are protected. Moreover, the terms of the Agreement would not result in detrimental impacts.
5. The development agreement will not adversely affect the orderly development of property or the preservation of property values.
Item 2A - Page 15
Ordinance No. ______
The Agreement would allow the future development of an entitled site to be developed with a project found to be consistent with the Downtown Palm Springs Specific Plan. Property values are not expected to be impacted by the approval of the Development Agreement, as the site will remain vacant and subject to the city’s Property Maintenance Standards ordinance (Section 93.19.00 of the Palm Springs Zoning Code).
G. A notice of public hearing of the City Council of the City of Palm Springs, California to consider Case DA-2023-0008 was given in accordance with applicable law and on March 14, 2024, the City Council held a public hearing in accordance with applicable law, and carefully reviewed and considered all of the evidence presented in connection with the hearing on the application, including but not limited to the staff report, and all written and oral testimony presented.
H. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California has enacted California Government Code Section 65864 et seq. (the “Development Agreement Statute”), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. This Development Agreement has been pr ocessed, considered, and approved in accordance with the procedures and requirements as set forth in the Development Agreement Statute.
I. Pursuant to Government Code Section 65865(c), the City of Palm Springs previously adopted Zoning Code Section 94.08.00, that set forth rules and regulations establishing procedures and requirements for consideration of development agreements.
This Development Agreement has been processed, considered, and approved in accordance with the procedures and requirements as set forth in the City’s Ordinances and Municipal Codes.
J. The City Council finds that no further environmental review is required (Public Resources Code section 21166; CEQA Guidelines section 15162). No changed circumstances, changes in the environment or changes in regulations have occurred since the certification of the EIR or the adoptio n of the addenda. Based on the requirements of the Public Resources Code and the CEQA Guidelines, no additional environmental analysis is required for this Agreement and the mitigation measures previously imposed within the EIR will apply.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The foregoing findings are all true and correct, and are incorporated by this reference herein as the cause and foundation for the action taken by and through this Ordinance.
Item 2A - Page 16
Ordinance No. ______
Section 2. The Specific Plan EIR for the Project is the controlling environmental document for the Council’s consideration of the Development Agreement.
Section 3. The Development Agreement complies with the provisions of the Palm Springs Zoning Code Section 94.08.00, as set forth in Recital F of this Ordinance.
Section 4. The Development Agreement is hereby approved in exchange for the following mutual benefits:
a. The Development Agreement will ass ure adequate public facilities at the ti me of development.
b. The Development Agreement will assure development in accordance with City’s land use policies and goals.
c. The Development Agreement will provide for orderly growth consistent with the City’s General Plan, and other public policies.
d. The Development Agreement is intended to provide certainty in the development approval process by vesting the permitted uses, densities and intensity of use with respect to the subject property.
e. The execution of this Agreement furthers the public health, safety and general welfare of the community.
f. The Development Agreement will allow legal commitments by Developer over and above those allowed by state law and the Palm Springs Municipal Code requirements. g. The Development Agreement will provide certainty for continuation of development within the Specific Plan area, which included public street systems and sidewalks, a public park, public parking, art installations and other amenities greatly enhancing the City of Palm Springs and its res idents, and promotes the economic health of the community and success of downtown businesses.
h. The Development Agreement will assist with creating job opportunities within the City. i. The Development Agreement will further the live/work atmosphere in downtown where residents can access community businesses and economic opportunities in the heart of the City without the need for vehicular transportation.
Section 5. Approval of the DTPS B-3, LLC Development Agreement. The City Council hereby approves the DTPS B-3, LLC Development Agreement, the text of which is set forth in the document entitled “Development Agreement by and between City of Palm Springs and DTPS B -3, LLC, a California limited liability company,” and authorizes execution thereof by the City Manager . The provisions of this section shall apply to all property described in Exhibit “A” attached to the Development Agreement.
Section 6. The Palm Springs Zoning Code Section 94.08 is hereby amended by adding Section 94.08.10 to read as follows:
Item 2A - Page 17
Ordinance No. ______
“Section 94.08.10 DTPB B-3, LLC Development Agreement
A. DTPS B-3, LLC Development Agreement
1. Purpose. The purpose of this section is to establish a development agreement to guide the orderly development and improvement of that portion of the city previously developed as the Desert Fashion Plaza and now identified as Block B of the Downtown Palm Springs Specific Plan, which is located north of Museum Way, south of Andreas Road, east of Belardo Road and west of Palm Canyon Drive, in the Northeast One - Quarter of Section 15, Town ship 4 South, Range 4 East, San Bernardino Base and Meridian, in the C ity of Palm Springs as legally described as Exhibit “A” of the Development Agreement, attached to the Ordinance codified in this section and incorporated herein by reference. The property is designated as part of the Downtown Palm Springs Specific Plan whi ch allows for a mix of approved land uses including Commercial, Retail, High Density Residential, Open Space/Public Space and Resort development generally consistent with the Central Business District (“CBD”) land use designation in the general plan, as ap plicable. Hereafter, the property shall also be designated as "Development Agreement No. 6” or “DA6” which shall be an overlay designation incorporating the restrictions of the “DTPS B -3, LLC Development Agreement.” The DTPS B -3, LLC Development Agreement provides for ultimate development of a new six-story, 73,300-square foot mixed-use building of up to 60-feet in height with forty-five residential condominiums and ground floor retail space, and is consistent with the General Plan and Specific Plan objectives, policies and programs of the City.
2. Adoption of DTPS B-3, LLC Development Agreement. There is adopted the DTPS B-3, LLC Development Agreement, the text of which is set forth in the document entitled “Development Agreement by and between City of Palm Springs and DTPS B-3, LLC, a California limited liability company,” included with the ordinance which codified this section, which agreement is incorporated in this section by reference. The provisions of this section shall apply to all property described on Exhibit “A” attached to the Development Agreement and incorporated herein by reference.
3. Property Development and Other Standards. All property which is subject to the DTPS B -3, LLC Development Agreement shall be maintained in accordance with all policies, requirements, regulations, and provisions set forth in the DTPS B -3, LLC Development Agreement. The developer’s performance of its obligations under the DTPS B-3, LLC Development Agreement shall be subject to annual review as provided therein.”
Section 7. The Official Zoning Map of the City of Palm Springs is hereby amended by reclassifying from CBD to being subject to the DTPS B-3, LLC Development Agreement “Development Agreement No. 6” or “DA6,” all of that real property described in Exhibit “A” attached to the Development Agreement.
Section 8. EFFECTIVE DATE. This Ordinance shall be in full force and effect thirty (30) days after passage.
Item 2A - Page 18
Ordinance No. ______
Section 9. PUBLICATION. The City Clerk is hereby ordered and directed to certify to the passage of this Ordinance, and to cause the same or a summary thereof or a display advertisement, duly prepared according to law, to be published in accordance with law.
PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL THIS __ DAY OF ___, 2024.
JEFFREY BERNSTEIN, MAYOR
ATTEST:
BRENDA PREE, CITY CLERK
Item 2A - Page 19
Ordinance No. ______
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, BRENDA PREE, City Clerk of the City of Palm Springs, do hereby certify that Ordinance No. ______ is a full, true, and correct copy, and was introduced at a regular meeting of the Palm Springs City Council held on ______, 2024, and adopted at a regular meeting held on ______, 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____
BRENDA PREE, CITY CLERK
City of Palm Springs, California
Item 2A - Page 20
ATTACHMENT D
Item 2A - Page 21
December 6, 2023
Christopher Hadwin
Director of Planning Services
City of Palm Springs
3200 E Tahquitz Canyon Way
Palm Springs, CA 92262
Re: DTPS B-3, LLC / Development Agreement Application
Dear Mr. Hadwin:
The top priority in America, California and Palm Springs is immediate housing. Grit Development is prepared and eager to commence the construction of its approved 45 units housing project (“Block B Housing Project”) in Downtown Palm Springs, addressing the critical need for housing and accommodation for the retiring demographic looking to relocate to the Coachella Valley.
A legal dispute between the Department of Industrial Relations (DIR) on the one hand, and Grit Development and the City of Palm Springs, on the other hand, currently exists (“DIR Dispute”).
The outcome of the DIR Dispute has major implications for the construction budget of the Block B Housing Project, and the current ambiguity arising from that Dispute has, therefore, put on hold any further construction in the downtown area, including the Block B Housing Project. Given the possible prolonged legal dispute and the uncertainty surrounding the appeal process, securing a Development Agreement becomes crucial for this housing project in order to assure that entitlements are not lost while the City and Grit work to resolve the DIR Dispute.
The proposed Development Agreement would afford the necessary time to address the challenges posed by the DIR Dispute followed by a more realistic timeframe to break ground without the risk of entitlements expiring.
Grit can show that it has made significant investment in and reasonable progress on the Block B Housing Project thus far, as it has finalized Construction Documents and secured a construction loan. However, the unresolved DIR issue is a crucial hurdle, preventing the lender from proceeding with the funding of the $60 million project. The resolution of the DIR matter is essential to unlock the financial support needed in the challenging economic climate with high interest rates and escalating construction costs.
The City of Palm Springs and Grit Development are working together in attempting to reach a settlement with the DIR concerning our private-public partnership and the impending prevailing wages claim on Phase 1 of Downtown. Any offer to settle the matter in no way constitutes an admission of guilt by either the developer or the City, but rather would be a good faith offer and compromise to close this matter, put it behind us and move forward building new dwelling units in Palm Springs. This prompt resolution vs years or litigation could be more beneficial for all parties involved and enable Grit Development to break ground immediately thereafter on the approved forty-five residential multifamily units in Downtown. Until such time as meaningful progress can be made with respect to settlement of the DIR Dispute, we must find means of minimizing the negative consequences of the outstanding dispute. A Development Agreement for the Block B Housing Project assures that entitlements which have been fully vetted and approved by the City, which are responsive to the need for development of housing in the City 201 N. Palm Canyon Drive, Suite 200, Palm Springs, CA 92262-5525
Item 2A - Page 22
~ GRIT
DEVELOPMENT
and which conform to the Downtown Specific Plan are not negatively impacted the DIR Dispute. The Development Agreement would, instead, hold the approved Block B entitlements valid for its term. This justifies the developer continuing his pre-development process, and places the developer in a position of being able to move forward, confident in the entitlements, as soon as possible after resolution of the DIR Dispute.
Thank you for your consideration.
Michael Braun
201 N. Palm Canyon Drive, Suite 200, Palm Springs, CA 92262-5525 huh
Item 2A - Page 23
~ GRIT
DEVELOPMENT
ATTACHMENT E
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55575.18145\42087112.1
RECORDING REQUESTED BY:
CITY OF PALM SPRINGS
AND WHEN RECORDED MAIL TO:
CITY OF PALM SPRINGS
OFFICE OF THE CITY CLERK
3200 E. TAHQUITZ CANYON WAY
PALM SPRINGS, CA 92262
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF PALM SPRINGS
AND
DTPS B-3, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
THIS AREA FOR RECORDER’S USE ONLY
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1 DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this “ Agreement” or “Development Agreement”) is entered into by and between the City of Palm Springs, a California Charter City and municipal corporation, (“City”), and DTPS B-3, LLC, a California limited liability company (“Developer”), pursuant to California Government Code § 65864 et seq.
RECITALS
A. D evelopment Agreement Statute. To eliminate uncertainty in planning, strengthen the public planning process, encourage private participation in comprehensive planning, provide for the orderly development of projects, and reduce the economic risk of development, the Legislature of the State of California has enacted California Government Code § 65864 et seq. (the “Development Agreement Statute ”), which authorizes City to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. The purpose of the Development Agreement Statute is to authorize municipalities, in their discretion, to establish certain development rights in real property for a period of years regardless of intervening changes in land use regulations, to vest certain rights in the Devel oper, and to meet certain public purposes of the municipality. This Development Agreement has been processed, considered, and executed in accordance with the procedures and requirements as set forth in the Development Agreement Statute.
B. C
ity Ordinance. Pursuant to Government Code section 65865(c), City has adopted Palm Springs Municipal Code § 94.08.00, which sets forth local rules and regulations establishing procedures and requirements for consideration of development agreements. The parties acknowledge:
a. T
his Agreement will assure adequate public facilities at the time of development. b. This Agreement will assure development in accordance with City’ s land use policies and goals.
c. This Agreement will provide for orderly growth consistent with the City’s General Plan, and other public policies.
d. This Agreement is intended to provide certainty in the development approval process by vesting the permitted uses, densities and intensity of use with respect to the Project (defined below).
e. The execution of this Agreement furthers the public health, safety and general welfare of the community.
f. This Agreement will allow development of 45 residential condominium units in the City.
C. B
inding Effect of Development Agreement . By electing to enter into this Development Agreement, City shall bind future City Councils of the City by the obligations specified herein and limit the future exercise of certain government and proprietary powers of the City.
D. Developer Interest in Property. Developer represents and warrants that it has an ownership, leasehold or similar legal interest in certain real property as legally described in Exhibit Item 2A - Page 26
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2 A and shown on the map in Exhibit B, attached hereto (the “Project Site”). This Agreement applies only to the Project Site.
E. E ntitlements . On January 14, 2021 the City approved the following land use entitlements for the Project, which Entitlements remain in effect and are subject to this Agreement:
a. C
ity Council Resolution Number 24845 approving Major Architectural Approval:
Case No. 3.3908 MAJ (the “Project”)
b. City Council Resolution Number 24846 approving Tract Map Case No. TTM 37935 (the “Map”).
The above Entitlements are part of larger project known as the Museum Market Plaza Specific Plan/Downtown Palm Springs Specific Plan (“Project Specific Plan.”) In 2009, the City certified an Environmental Impact Report (“Project EIR”) which analyzes the impacts of the entire Project Specific Plan, and in approving the Entitlements, the Council found the Entitlements to be consistent with the approved Project EIR. The Entitlements have been approved subject to various conditions and requirements with which Developer will be required to comply in order to develop the Project on the Project Site (“Conditions of Approval”). The approvals described above, including without limitation the Conditions of Approval as referenced in this Recital and this Agreement, are referred to herein as the “ Entitlements” and have been reviewed and approved in accordance with the Municipal Code, California Environmental Quality Act, California Public Resources Code Section 21000 et seq. (“CEQA”), and all other applicable local, state, and federal laws and regulations. The Entitlements, Conditions of Approval, and this Agreement shall be collectively referred to as “the Project Approvals.”
F. S
ubstantial Costs to Developer. Developer will incur substantial costs in order to comply with the Project Approvals and to construct the infrastructure improvements requested by the City to assure development of the Project in accordance with the terms of this Agreement.
G. V
esting of Rights. Due to a dispute (“DIR Dispute”) between the State Department of Industrial Relations (“DIR”) on the one hand, and the City and an affiliate of Developer on the other hand related to the applicability of state prevailing wage laws to property within the Project Specific Plan area, the initiation of construction of the improvements contained in the Entitlements is delayed. In light of the delay induced by the pending DIR Dispute and in exchange for the benefits to City described in the preceding Recitals, together with the other public benefits that will result from the development of the Project, Developer will receive by this Agreement assurance that it may proceed with the Project in accordance with the “Applicable Law” (defined below) and therefore desires to enter into this Agreement.
H. P
lanning Commission - Council Findings. The approval of this Agreement is made pursuant to findings by the Planning Commission and the Council that this Development Agreement:
a. I
s consistent with the objectives, policies, general land uses and programs specified in the General Plan and the Downtown Specific Plan;
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3 b. Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located; c. Is in conformity with public convenience, general welfare and good land use practice;
d. Will not be detrimental to the health, safety and general welfare; and e. Will not adversely affect the orderly development of property or the preservation of property values.
I. C
ity Council Actions. City Council, after giving due notice of intention, conducting required public hearings, considering the recommendations of the Planning Commission and conducting extensive environmental analysis, approved the following entitlements for the Project the Project Site:
a. C
ase No. 3.3908 MAJ
b. TTM 37935
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
ARTICLE 1. DEFINITIONS
1.1 “ Agreement” shall mean this Development Agreement by and between Developer and City, dated [_______________________].
1.2 “ Applicable Law” shall have that meaning set forth in Section 7.03 of this Agreement.
1.3 “ Changes in the Law” shall have that meaning set forth in Section 7.08 of this Agreement.
1.4 “ City” is the City of Palm Springs, a California Charter City and municipal corporation.
1.5 “ Conditions of Approval ” shall have that meaning set forth in Section 4.04 of this Agreement.
1.6 “ Default” shall have that meaning set forth in Section 11.01 of this Agreement.
1.7 “ Default Notice” shall have that meaning set forth in Section 11.01 of this Agreement.
1.8 “ Development Agreement Statute ” shall have that meaning set forth in Recital A of this Agreement.
1.9 “ Developer” DTPS B-3, LLC, a California limited liability company.
1.10 “ Development Impact Fee” means a monetary exaction, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on Item 2A - Page 28
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4 an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article
2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies that provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Healt h and Safety Code). For purposes of this Agreement only, “Development Impact Fee” shall not include processing fees and charges of imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese - Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Publi c Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superceded, including by amendment or replacement.
1.11 “ Entitlements” shall have that meaning set forth in Recital E of this Agreement.
1.12 “ Effective Date” shall have that meaning set forth in Section 3.01 of this Agreement.
1.13 “ Excusable Delay” shall have that meaning set forth in Section 11.04 of this Agreement.
1.14 “ Force Majeure” shall have that meaning set forth in Section 11.04 of this Agreement.
1.15 “ Project” shall have that meaning set forth in Recital D of this Agreement.
1.16 “ Project Site” shall have that meaning set forth in Recital D of this Agreement.
1.17 “Project Approvals” shall have that meaning set forth in Recital E of this Agreement.
1.18 “ Prompt Review” means review of all plans, specifications, and applications by Developer in accordance with Section 7.11, below.
1.19 “ R
easonable Progress ” shall mean commercially reasonable efforts by Developer to commencement of construction (defined as obtaining and paying all fees a building permit Item 2A - Page 29
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5 for the primary building comprising the Project ) no later than July 31, 2030, and the completion of the Project (as evidenced by certificates of occupancy for all residential units in the Project) within twenty four (24) months thereafter, achieve full build -out and completion of all executory obligations herein within ten years in accordance with Section
7.10, below, subject to any Force Majeure or Excusable Delay.
1.20 “ T
erm” shall have that meaning set forth in Section 3.02 of this Agreement.
ARTICLE 2. INCORPORATION OF RECITALS.
Section 2.01. Recitals. The
Recitals set forth above, the introductory paragraph preceding the Recitals, and all defined terms set forth in both, are hereby incorporated into this Agreement as if set forth herein in full.
ARTI
CLE 3. EFFECTIVE DATE AND TERM
Section 3.01. Effective Date. Th is Agreement became effective as of the date the City Council of City approved this Agreement, [_______________________] (the “Effective Date”).
Section 3.02. Term. The term of this Agreement (the “ Ter m”) shall commence upon the Effective Date and continue until July 31, 2030, unless the Term is terminated or modified as set forth in this Agreement or by mutual consent of the parties hereto.
ARTI
CLE 4. OBLIGATIONS OF DEVELOPER
Section 4.01. Obligations of Developer Generally. In c onsideration of City entering into this Agreement, Developer agrees that, in developing the Project, it will comply with this Agreement and with all Project Approvals. The Project is hereby made subject to this Agreement.
Development of the Project Site is hereby authorized and shall be carried our only in accordance with the terms of this Agreement. The parties acknowledge and agree that City ’s agreement to perform and abide by the covenants and obligations of City set forth in this Agreement is a material consideration for Developer ’s agreement to perform and abide by its long term covenants and obligations, as set forth herein. The Parties further acknowledge that this agreement only applies to the Project and not the Expansion Project or any other approved development on the Project Site not related to the Project, including but not limited to the Expansion Project.
Section 4.03. Public benefits provided by Developer.
a. Developer has previously developed certain areas of the Project Specific Plan, which created multiple public benefits for the City of Palm Springs and its residents. Those public benefits include public street systems and sidewalks, a public park, public parking, art installations and other amenities greatly enhancing the City of Palm Springs ’ vision of creating a vibrant village community dynamic for its downtown. Developer ’s involvement related to past development and the future development of Block B c reates cohesion of the overall development and certainty that Item 2A - Page 30
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6 future development will be completed as envisioned by the City of Palm Springs (and its residents) pursuant to the Project Specific Plan, thereby increasing the likelihood of ensuring expeditious completion of the Project Site and reducing the prospect of additional stalled or delayed projects within the City of Palm Springs.Creation of new housing opportunities in the downtown area, responding to the City’s need for additional housing opportunities.
b. Continuing the development of the overall Downtown Specific Plan, thereby promoting the economic health of the community and the success of downtown businesses.
c. Creating job opportunities within the city.
d. Creating a “live/work” atmosphere in downtown where residents can access community businesses and economic opportunities in the heart of the City without the need for vehicular transportation.
Section 4.04. Compliance with Project Conditions. I
n addition to any and all obligations
contained in this Agreement, Developer shall comply with and fulfill any and all Conditions of Approval. The Development of the Project shall be governed by the terms of the Conditions of Approval and this Agreement. The Conditions of Approval and this Agreement shall, to the fullest extent possible, be read and considered as fully integrated documents, and shall be interpreted so as to avoid inconsistencies, comply wi th all applicable federal and state laws and City Law, and ensure that the objectives of the parties will be fully realized.
N
othing in this Agreement is intended to supersede, terminate, modify or otherwise affect any provision of the Conditions of Approval, except to the extent that a provision of this Agreement is in direct conflict with a provision of such Condition of Approval. Then, and only in that event, the provisions of this Agreement shall prevail over the contradictory provisions of any such Condition of Approval. The execution of this Agreement by the parties hereto shall in no way otherwise affect the validity of any or all of the provisions of the Conditions of Approval.
ARTICLE 5. OBLIGATIONS OF CITY
Section 5.01. Obligations of City Generally. I
n consideration of Developer entering into this
Agreement, City agrees that it will comply with the terms and conditions of this Agreement. The parties acknowledge and agree that Developer’s agreement to perform and abide by its covenants and obligations set forth in this Agreement is a material consideration for the City’s agreement to perform and abide by the long term covenants and obligations of the City, as set forth herein.
ART
ICLE 6. COOPERATION - IMPLEMENTATION
The parties agree to cooperate in good faith to implement this Agreement.
ARTICLE 7. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT
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7 Section 7.01. Vested Right to Develop Project. Subject to the terms of this Agreement, Developer shall have a vested right to build out the Project through the Term on the Project Site in accordance with, and to the extent of, the terms and conditions of the Project Approvals.
Section 7.02. Permitted Uses Vested by This Agreement . E xcept as otherwise provided in this Agreement, the permitted use s of the Project, the density and intensity of use of the Project , the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and the location of public improvements, the general location of public utilities, and other terms and conditions of development applicable to the Project shall be as set forth in the Entitlements and Project Approvals, including applicable Conditions of Approval.
Section 7.03. Applicable Law .
Except as otherwise provided in this Agreement, the rules, regulations, official policies, standards and specifications applicable to the Project (the “Applicable Law”) shall be those set forth in the Project Approvals, and, with respect to matters not addressed by the Project Approvals, those rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) governing permitted uses, building locations, timing of construction, densities, design, and heights in force and effect on the Effective Date of this Agreement.
Section 7.04. Uniform Codes. S
ubject to Section 7.05 below, City may apply to the Project, at any time during the Term, the then current Uniform building construction, fire or other codes, as the same may be adopted or amended from time to time by City, and City’s then current design and construction standards for public improvements, as the same may be adopted or amended from time to time, provided any such uniform code or standard has been adopted and uniformly applied by City on a citywide basis, and provided that no such code or standard is adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project.
Section 7.05. No Conflicting Subsequent E
nactments. City shall not impose on the Project
(whether by action of the City Council or by initiative, referendum or other means) any ordinance, resolution, rule, regulation, standard, directive, condition or other measure or any amendment or revision to any of the foregoing (each individually, a “City Law”) that is in conflict with Applicable Law, or the Project Approvals, or that reduces the development rights or assurances provided by this Agreement with respect to the Project , except where such City Law is enacted to address a significant public health or safety issue. Any City Law shall be deemed to conflict with Applicable Law, or the Project Approvals, or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to the Project or as part of a general enactment which applies to or affects the Project Approvals applicable to the Project.
A
pprovals:
a. Change any land use designation or permitted use of the Project existing as of the Effective Date of this Agreement;
b. Limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water Item 2A - Page 32
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8 rights, water connections or sewage capacity rights, sewer connections, etc.) for the Project.
c. Limit or control the location of buildings, structures, grading, or other improvements of the Project in a manner that is inconsistent with or more restrictive than the limitations included in the Project Approvals;
d. Limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner inconsistent with the Project Approvals;
e. Apply to the Project any City Law otherwise allowed by this Agreement that is not uniformly applied on a citywide basis to all substantially similar types of development projects and project sites;
f. Result in Developer having to substantially delay construction of the Project or require the issuance of additional permits or approvals by the City other than those required by the Project Approvals or Applicable Law;
g. Substantially increase the cost of constructing or developing the Project or any portion thereof;
h. Establish, enact, increase, or impose against the Project or Project Site any Development Impact Fee(s) , taxes (including without limitation general, special and excise taxes), assessments, liens or other monetary obligations other than those specifically permitted by this Agreement;
i. Impose against the Project any condition, dedication or other exaction not specifically authorized by the Project Approvals or Applicable Law;
j. Grant any development right, entitlement or approval for any portion of the Project of the Project Site that will reduce, limit or encumber Developer’s rights to develop the Project hereunder, or
k. Unreasonably limit the timing, processing or procuring of applications and approvals for the Project.
If City attempts to apply to the Project a City Law that Developer believes to conflict with Applicable Law or the Project Approvals, Developer shall provide to City in writing a notice describing the legal and factual basis for Developer ’s position. The parties shall meet and confer within thirty (30) days after the date of such written notice with the objective of attempting to arrive at a mutually acceptable solution to this disagreement. If no mutually acceptable solution can be reached, either party may take such action as may be permitted under Section 11.07, below.
Section 7.06. Initiatives and Referenda.
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9 a. To the maximum extent permitted by law, if any City Law is enacted or imposed by initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum, which City Law would conflict with Applicable Law, or the Project Approvals or reduce the development rights provided by this Agreement, such City Law shall not apply to the Project.
b. Without limiting the generality of any of the foregoing and to the maximum extent permitted by law, no moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting building permits or other entitlements to which Developer is entitled pursuant to the Project Approvals shall apply to the Housing Project.
c. To the maximum extent permitted by law, City shall take reasonable actions to prevent any City Law from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate with Developer and shall undertake such reasonable actions as may be necessary to ensure this Agreement remains in full force and effect.
d. Except as required by State or Federal law, City shall not adopt or enact any City Law, or take any other action which would violate the express provisions or spirit and intent of this Agreement.
e. Developer reserves the right to challenge in court any City Law that is enacted after the Effective Date of this Agreement that would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement.
Section 7.07. Environmental Determination. T
he parties understand that (i) all procedures of
CEQA have been satisfied, (ii) an initial study evaluating the environmental impacts of the Project, and all other Entitlements has been completed, and (iii) as a result, the City evaluated, analyzed and certified the Project EIR in 2009, and upon approval of the Entitlements in 2021, the City found that the Entitlements are consistent with said Project EIR.
Section 7.08. State and Federal Law. As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations, or by any regional governmental agency that, due to the operation of state law, has binding legal authority on City ( “Changes in the Law ”). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and City and Developer shall take such action as may be required pursuant to this Agreement including, without limitation, Article 10 (Cooperation- Implementation) and Section 11.04 (Force Majeure and Excusable Delays; Extension of Time of Performance). Nothing in this Agreement shall preclude City from imposing on Developer any fee specifically mandated and required by state or federal laws and regulations, provided that nothing shall limit Developer ’s ability to challenge such laws and the imposition of such fees.
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10 Section 7.09. Timing of Project Construction and Completion. The parties acknowledge that neither City nor Developer can predict the timing, rate, order or actual timing of development of the Project with certainty. The parties further acknowledge that the construction of the Project is dependent on numerous factors outside the Developer control, including but not limited to the time needed for resolution of the DIR Dispute . Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties ’ agreement, it is the parties ’ intent to cure that deficiency by acknowledging and providing that, subject to the terms of this Agreement, Developer shall have the right to develop the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment, subject only to making Reasonable Progress as defined in this Agreement. The Developer shall use its best efforts to commence construction (defined as obtaining and paying all fees a building permit for the primary building comprising the Project) no later than July 31, 2030, which, if accomplished, will automatically extend the Te rm of this Agreement by twenty four (24) months. Developer shall thereafter use its best efforts to complete the Project (as evidenced by certificates of occupancy for all residential units in the Project) within twenty four (24) months following the issuance of the first building permit .any timing or phasing requirements set forth in the Project Approvals or this Agreement.
Section 7.10. Annual Review. C ity shall, at least every twelve (12) months during the Term of this Agreement, and, prior to issuance of building permits for the Project , review the extent of good faith substantial compliance by Developer with the terms of this Agreement. The review may specifically include a review of whether Developer is making Reasonable Progress. To assess such progress, the City Planning Director may require at any time subsequent to the execution of this Agreement, and as frequently as annually thereafter, a development planned schedule showing initiation of construction prior to the expiration of this Agreement, and completion of construction within twenty-four (24) months after purchase of the first required building permit for development under this AgreementReasonable Progress by Developer . Reasonable Progress shall take into account not only market conditions, State and federal funding sources and prudent construction practices, but also the status of the DIR Dispute and any related claims on the Project or any portion of the Downtown Specific Plan Area. Reasonable Progress is expressly subject to City’s obligation of Prompt Review specified in Section 7.11, below. Such periodic review shall be limited in scope to good faith compliance with the terms of this Agreement pursuant to California Government Code Section 65865.1 and Palm Springs Municipal Code Section 94.08.00. Said review shall be diligently completed according to Palm Springs Municipal Code Section 94.08.00. Notice of such annual review shall include the statement that any review may result in amendment or termination of this Agreement. A finding by City of good faith compliance by Developer with the terms of the Agreement shall conclusively determine said issue up to and including the date of said review.
However, if a finding is made by City that there is not good faith compliance by Developer, the City shall follow those procedures set forth in Palm Springs Municipal Code Section 94.08.00.
City shall mail to Developer a copy of all staff reports concerning contract performance at least seven (7) calendar days prior to such periodic review. Developer shall be permitted an opportunity to be heard orally or in writing regarding its performance under this Agreement before the City Council and, if the matter is referred to a City Planning Commission, before said Commission.
Notwithstanding anything to the contrary set forth in this Agreement, upon issuance of building Item 2A - Page 35
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11 permits for the Project , Developer shall be deemed to have satisfied the obligation to make Reasonable Progress and the City shall have no right to terminate or amend this Agreement as a result of any review by the City pursuant to this Section 7.10.
Section 7.11 Review by the City . C
ity and Developer shall cooperate and use reasonable
efforts to timely review and approve the development design review process, building plan review process, improvement plan review process, and if necessary, the entitlement review process for the Project. Review of any application provided by this subparagraph shall not be deemed to waive any of the Applicable Law pertaining to review or approval of such application, including, but not limited to, a public hearing, if any, required therefore. In the ev ent the Parties agree to use an expedited process to perform any review pursuant to this subparagraph, Developer authorizes the imposition of City Fees paid to the City sufficient to cover City’s estimated costs of utilizing City staff, retaining an outside consultant or any combination thereof in order to expedite the review process. Any such process shall terminate upon the expiration or termination of this Agreement or the issuance of the fina l certificate of occupancy for development within the Project, whichever occurs first.
Section 7.12. Tentative Tract Map Extension .
In accordance with the provisions of Section
66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the Termination D ate; provided however, that the City Council may, in its discretion, extend any such map for a period of up to an additional five (5) years.
Section 7.13. Prevailing Wage Laws. Developer covenants that it shall comply with California’s prevailing wage laws codified at Cali fornia Labor Code §1770 et seq.) “ Prevailing Wage Laws”) in the development of the Project at the Project Site where applicable, and shall contractually require its contractors to do the same. If applicable, Developer shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to construct the Project available to interes ted parties upon request, and shall post copies at the Developer’s principal place of business and at the Project Site. Developer shall be solely responsible for determining the applicability of Prevailing Wage Laws to the Project. Developer shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws in the construction of the improvements described in the Project Approvals which are the subject of this Agreement . The parties agree that the foregoing indemnification applies only to development under this Agreement, and shall have no retroactive effect to any previous agreements between the City on the one hand and the Developer or its affiliated entities on the other hand.
ART
ICLE 8. AMENDMENT
This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, in accordance with the Development Agreement Statute.
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12 ARTICLE 9. ASSIGNMENT, TRANSFER AND NOTICE
Section 9.01. Assignment of Interests, Rights and Obligations. Developer may only transfer or assign all or any portion of its interests, rights or obligations under this Agreement to another person or entity acquiring an interest or estate in the Project or any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels or facilities that accepts all of the then-applicable responsibilities of the Developer.
Section 9.02. Limits of Liability . T
o the extent the Developer ’s responsibilities are
transferred in good faith to another person or entity, Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer ’s obligations under this Agreement shall be attributed to Developer, nor may Developer’s rights hereunder be canceled or diminished in any way by any breach or default by any such person.
ART
ICLE 10. COOPERATION IN THE EVENT OF LEGAL CHALLENGE
Section 10.01. Cooperation.
a. In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of the Agreement or any Project Approval, the parties shall cooperate in defending such action or proceeding. The parties shall use best efforts to select mutually agreeable legal counsel to defend such action, and Developer shall pay compensation for such legal counsel; provided, however, that such compensation shall include only compensation paid to counsel not otherwise employed as salaried City staff and shall exclude, without limitation, City staff overhead costs and normal day-to-day business expenses incurred by City. In the event City and Developer are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel.
b. The parties agree that this Section 10.0 1 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside.
Section 10.02. Waiver of Challenges to Project Approvals.
a. As a condition precedent to receiving the benefits of this Agreement, Developer, its successors in interest, transferees, assignees, etc., expressly waive any legal or equitable right to challenge any Project Approvals or other act, entitlement, fee, or approval expressly set forth in this Agreement, including without limitation, all acts of protest pursuant to California Government Code Sections 66008 and 66009 as to any fee against which Developer has vested in accordance with this Agreement.
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13 b. The parties agree that this Section 10.03(b) shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of compe tent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside.
ARTICLE 11. DEFAULT; REMEDIES; TERMINATION
Section 11.01. Defaults. Any failure by either party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other party (unless such period is extended by mutual writte n consent), shall constitute a default under this Agreement (“Default”). Any written notice (“Default Notice”) shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a c ure within such 30- day period. Upon the occurrence of a Default under this Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material Default, terminate this Agreement. If the Default is cured, then no Default shall exist and the noticing party shall take no further action. Notwithstanding the foregoing, no Default with respect to the Expansion Project or any other development on the project site not related to the Project shall cause Default as to the Project . The Partnership and the investor limited partner of the Partnership shall receive notice of any Default and shall have the right, but not the obligation, to cure any Default hereunder on the same terms and within the same time periods as Developer.
Section 11.02. Termination. If City elects to consider terminating this Agreement due to a material Default of Developer, then City shall give a notice of intent to terminate this Agreement.
City shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter. Notwithstanding the foregoing, City shall have no right to terminate this Agreement due to a Default with respect to the Expansion Project or any other development on the Project Site not related to the Project.
Section 11.03. Default by City or Developer.
(a) It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that City shall not be liable in damages to Developer, or to any successor in interest of Developer , or to any other person, and Developer covenants not to sue for damages or claim any damages:
(i) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(ii) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
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14 (iii) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
(b) The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(i) Money damages are unavailable against City as provided in subsection (a) above.
(ii) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Property or portions thereof. Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Developer for such efforts. (c) Except for non- damage remedies, including the remedy of specific performance and judicial review, Developer, for itself, its successors and assignees, hereby releases the City, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amend ment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement or because of the terms of this Agreement.
Section 11.04. Force Majeure and Excusable Delay: Extension of Time of Performance. In addition to specific provisions of this Agreement, neither party shall be deemed to be in Default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk -
outs, riots, floods, earthquakes, fires,
casualties, acts of God, pandemics, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations, stay at home orders and shelter in place orders), enactment of conflicting state or federal laws or regulations, judicial decisions, or similar basis for excusable performance which is not within the reasonable control of the party to be excused (collectively “Force Majeure”). Litigation attacking the validity of this Agreement or any of the Project Approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project pursuant to this Agreement, shall also be deemed to create an excusable delay as to Developer (collectively “Excusable Delay”). The party whose performance is prevented or delayed by such event of Force Majeure or Excusable Delay shall give prompt written notice thereof to the other party and both parties shall have agreed that performance is appropriately excused or delayed pursuant to this Section 11.04 In the event of Force Majeure or Excusable Delay, the parties shall memorialize in Item 2A - Page 39
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15 writing the extension of time for the performance of any obligation whose performance has been so prevented or delayed. The term of any such extension shall be equal to the period of the Excusable Delay or Force Majeure or such other period as may be mutually agreed upon by both parties.
Section 11.05. Legal Action . E
ither party may, in addition to any other rights or remedies, institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, recover damages for any default , enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the purpose of this Agreement.
Section 11.06. California Law . T
his Agreement shall be construed and enforced in
accordance with the laws of the State of California. Venue for any action shall be in Riverside County, California.
Section 11.07. Resolution of Disputes. With regard to any dispute involving development of the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Developer and City shall, at the request of the party, meet and shall attempt in good faith to resolve any such disputes. Nothing in this Section 11.07 shall in any way be interpreted as requiring that Developer and City and/or City’s designee reach an agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by the parties to such meetings.
Section 11.08. Attorneys ’
Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, each party shall bear its own costs and expenses, including attorneys’ fees.
Section 11.09. Hold Harmless. Developer shall, at its sole expense, defend and hold City and its elected and appointed officers, agents, employees, and representatives harmless from all claims, costs, and liabilities for any personal injury, death, or property damage which arises directly or indirectly as a result of the construction of the Project, or of operations performed under this Agreement by Developer or by Developer’s contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer ’s contractors, subcontractors, agents, or by any one or more persons directly or indirectly employed by or acting as agent for Developer or any of Developer’s contractors or subcontractors. Nothing in this section shall be construed to mean that Developer shall hold City or its elected and appointed officers, agents, employees, or representatives harmless from any claims of personal injury, death or property damage arising from, or alleged to arise solely from, any negligent or intentional act, or failure to act, on the part of City, its elected and appointed representatives, officers, agents , employees or representatives. Notwithstanding the forgoing, neither Developer, nor any successor or assign of either, shall have any obligation under this Section 11.09 to hold harmless, defend or indemnify the City or any of its elected and appointed officers, agents, employees, and representatives harmless with respect to any other development on the Project Site other than the Project. This section 11.09 shall have no retroactive effect to any previous agreement between the City on the one hand, and the Developer or its affiliated entities on the other hand.
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16 This hold harmless agreement applies to all damages or claims for damages suffered or alleged to have been suffered by reason of the operations referred to in this section regardless of whether or not City prepared, supplied or approved plans or specifications, or both, for the Project and/or Project Site.
The parties agree that this Section 11.09 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside.
ARTICLE 12. NO AGENCY, JOINT VENTURE OR PARTNERSHIP
It is specifically understood and agreed to by and between the parties hereto that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such ti me that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Project Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitation s and obligations of Developer under this Agreement, the Project Approvals and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer.
ARTICLE 13. MISCELLANEOUS
Section 13.01. Enforceability. City and Developer agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto, notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any other means) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance, resolution or other rule, regulation or policy adopted by City that changes, alters or amends the rules, regulations and policies applicable to the development of the Project Site at the time of the approval of this Agreement as provided by California Government Code Section 65866.
Section 13.02. Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, either City or Developer may (in their sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party.
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17 Section 13.03. Other Necessary Acts . Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder.
Section 13.04. Construction. Each reference in this Agreement to this Agreement or any of the Project Approvals shall be deemed to refer to the Agreement or the Project Approvals as they may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement.
Section 13.05. Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine; “ shall” is mandatory; “may” is permissive. If there is more than one signer of this Agreement, the signer obligations are joint and several.
Section 13.06. Covenants Running with the Land. All of the provisions contained in this Agreement shall constitute covenants or servitudes which shall run with the land comprising the Project Site and the burdens and benefits hereof shall be binding upon and inure to the benefit of the parties and the ir respective heirs, successors in interest, transferees and assignees, representatives, lessees, and all other persons acquiring all or a portion of the Project or the Project Site, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468.
Section 13.07. Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally, by facsimile or electronic mail (with original forwarded by regular U.S. Mail) by registered or certified mail (return receipt requested), or by Federal Express or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given wh en delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party’ s facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (10) days 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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18 If to the City, to:
City Manager
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Fax: (760) 322-8362
Email: [_______________________]
If to Developer, to:
DTPS B-3, LLC,
201 N. Palm Canyon Drive
Suite 200
Palm Springs, CA 92262
Tel: [_______________________]
Fax: [_______________________]
Email: [_______________________]
With Copies to:
City Attorney
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Fax: (760) 323-8299
Email: [_______________________]
Section 13.08. Entire Agreement, Counterparts and Exhibits. This Agreement is executed in duplicate, each of which is deemed to be an original. This Agreement consists of 19 pages and 2 exhibits which constitute in full, the final and exclusive understanding and agreement of the parties.
Section 13.09. Waiver. Any waivers of the provisions of this Agreement or a ny breach of
covenants or conditions contained in this Agreement shall be effective only if in writing and signed by the appropriate authorities of City and Developer. A waiver of one provision or breach shall not be considered as a continuing waiver, shall not constitute a waiver of any other conditions or covenants and shall not operate to bar or prevent the other party from declaring a forfeiture or exercising its rights for any succeeding breach of either the same or other condition or covenant.
Section 13.10. Recordation of Development Agreement . T his Agreement and any
amendment or cancellation thereof shall be recorded with the Riverside County Recorder by the City Clerk within the ten (10) days after the CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.
Section 13.11. No Third Party Beneficiaries. E
xcept as set forth in this Agreement, no person
or entity shall be deemed to be a third party beneficiary hereof and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than City, Developer and the Partnership, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
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19 Section 13.12. Titles of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of this Agreement’s provisions.
Section 13.13. Discretion of City. City ’s
execution of this Agreement in no way limits the
discretion of City in the permit or approval process in connection with any site plan approvals, subsequent entitlements, land use decisions, construction or improvements which are within City’s jurisdiction, except to the extent expressly and unequivocally stated herein.
Section 13.14. Representations of Authority. As to each person signing this Agreement on behalf of an entity, all necessary legal prerequisites to that party’ s execution of this Agreement have been satisfied and he or she has been authorized to sign this Agreement and bind the party on whose behalf he or she signs.
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SIGNATURES ON NEXT PAGE]
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20 IN WITNESS WHEREOF, the City of Palm Springs California, a California Charter City and municipal corporation, has authorized the execution of this Development Agreement in duplicate by its City Manager and attestation by its City Clerk, and approved by the Council of the City on the [_________________], and Developer has caused this Agreement to be executed by its authorized representatives.
Date: _______________________________
APPROVED AS TO FORM:
By:
_________________________________
Jeffrey S. Ballinger
City Attorney
APPROVED BY CITY COUNCIL:
Date: [_____________]: Agreement No.
[____________]
Ordinance # [________________]
“CITY”
CITY OF PALM SPRINGS
By:
_________________________________
Scott Stiles
City Manager
ATTEST
By:
_________________________________
Brenda Pree, MMC
City Clerk
“DEVELOPER”
DTPS B-3, LLC, A California limited liability company
By: __________________________________ By: ___________________________________ Michael Braun, Manager (Notarized) Octavio Fernandez, Manager (Notarized)
Corporations require two notarized signatures. One signature must be from Chairman of Board,
President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial officer.
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21 EXHIBIT A
PROPERTY DESCRIPTION
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22 EXHIBIT B
MAP OF PROPERTY
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ATTACHMENT F
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1. 2.
3. 4.
5. Name of Entity
DTPS 8-3 LLC
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Address of Entity (Principle Place of Business)
201 N. Palm Canyon Dr. Ste 200, Palm Springs CA 92262
Local or California Address (if different than #2)
State where Entity is Registered with Secretary of State California
If other than California, is the Entitv also reoistered in California? n Yes n No Type of Entity
D Corporation ~ Limited Liability Company D Partnership D Trust O Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity Michael Braun D Officer D Director D Member ~ Manager
[name]
D General Partner D Limited Partner
Other
Octavio Fernandez D Officer D Director D Member ~ Manager [name]
D General Partner D Limited Partner
Other
D Officer D Director D Member D Manager
[name]
D General Partner D Limited Partner
Other
CITY OF PALM SPRINGS - PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM