15579-03 VMT.docx
PROJECT TYPE SCREENING
The City Guidelines identify that local serving retail uses of less than 50,000 square feet, including gas stations, shopping centers, etc. are presumed to have a less than significant impact absent substantial evidence to the contrary. The introduction of new local-serving retail has been determined to reduce VMT by shortening trips that will occur.
The Project consists of a fuel station with 5,500sf convenience store and 4,000sf of Class II gaming space, and satisfies the screening criteria.
The proposed Crossley/Dinah Shore Gas Statio n/Gaming development provides a service to existing travelers on Dinah Shore Drive and Cr ossley Road by supplying fuels, convenience market goods, and other ancillary uses. In addition, nearby resi dents as well as employees and visitors to existing local businesses are served in a similar manner.
The Project type screening criteria is met.
CONCLUSION
Based on the results of this evaluation, the Proj ect satisfies the Project Type screening criteria and no further analysis is necessary.
If you have any questions, please contact us directly at [email protected] for John or [email protected] for Marlie.
3 Item 1C - Page 520
URBAN I CROSSROADS
15579-03 VMT.docx
REFERENCES
1. City of Palm Springs. TIA Guidelines. City of Palm Springs : s.n., July 2020. 4 Item 1C - Page 521
URBAN I CROSSROADS
CITY COUNCIL STAFF REPORT
DATE: D ECEMBER 12, 2024 CONSENT CALENDAR
SUBJECT: REAL PROPERTY DONATION AND DENSITY TRANSFER AGREEMENT
BETWEEN CITY OF PALM SPRINGS AND WATERMARKE VENTURES
LLC, AND DETERMINING SUCH ACTION TO EXEMPT FROM FURTHER
ENVIRONMENTAL REVIEW PURSUANT TO THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA)
FROM: Scott C. Stiles, City Manager
BY: Jeffrey S. Ballinger, City Attorney
SUMMARY
:
This agenda item provides the City Council with the opportunity to discuss and approve an agreement providing for the donation to the City of approximately 190 acres of land within the Chino Cone area of the City, and providing for the transfer of development density from that land, in accordance with the City’s General Plan and Zoning Ordinance.
RECOMMENDATION
:
Approve the accompanying Real Property Donation and Density Transfer Agreement . (Attachment A)
BUSINESS PRINCIPAL DISCLOSURE
:
Watermarke Ventures, LLC (“Watermarke”) is a California limited liability corporation.
According to the California Secretary of State website, as of October 17, 2024, the managing member is Dennis Troesh. A copy of Watermarke’s Business Disclosure form accompanies this staff report as Attachment B.
BACKGROUND
:
The Chino Cone is an undeveloped alluvial fan within the City of Palm Springs, which can be easily recognized upon entry to the City.
Item 1D - Page 1
City Council Staff Report
December 12, 2024 -- Page 2
Watermarke Property Donation/ Density Transfer Agreement
For this reason, it is considered an extraordinary natural resource and an area of great development interest. The City’s General Plan contains several goals, policies and actions for the preservation of open space within the Chino Cone, including the following:
• Work with public and private natural resource and conservation groups to explore opportunities to preserve the Santa Rosa Mountains, San Jacinto Mountains, Chino Cone and Snow Creek in their natural state. ( City of Palm Springs General Plan Land Use Policy 9.2.)
• Apply the use of density transfers between properties located within the Chino Cone and to properties elsewhere in the City to encourage the preservation of views and natural resources. (City of Palm Springs General Plan Land Use Action
13.2.)
• Continue to seek opportunities to acquire or designate open space for preservation. This could include land dedication, in- lieu fees, grants, density transfer, or other sources. (City of Palm Springs General Plan Land Use Policy
13.3.)
• The City should continue its policies for open space acquisition and designation by which approximately 3,000 acres have been acquired (as of 2006), including mitigation of developer impacts through land dedication, density transfer and payment of in- lieu fees, acceptance of gifts of land, obtaining federal and state grants for conservation, working with regional conservation agencies, and developing other funding sources. (City of Palm Springs General Plan Citizens’ Task Force for Mountain and Foothill Preservation and Planning, Guiding Principle.)
Item 1D - Page 2
City Council Staff Report
December 12, 2024 -- Page 3
Watermarke Property Donation/ Density Transfer Agreement
In addition, the City’s Zoning Ordinance provides a mechanism for implementing these policies, namely through the transfer of development density, currently codified as Palm Springs Municipal Code § 92.21.1.07 (the “Density Transfer Ordinance”). Density transfer is a mechanism that allows for the relocation of development potential from an area where proposed land uses or environmental impacts are considered undesirable to another site chosen on the basis of its ability to accommodate additional units of development beyond its original designation. As stated in the City’s General Plan, in Palm Springs, this tool can be used to intensify residential and commercial uses in the Central City and to minimize development in sensitive areas such as the mountains and hillsides.
The City has been approached by Watermarke, the owner of approximately 190 acres of land, located on the Chino Cone, as depicted here:
Watermarke approached the City earlier this year about the possibility of donating the subject property to the City, for purposes of preserving the property as open space, as well as transferring the development potential density from the subject property to other property within the City. In accordance with the Brown Act, the City Council discussed this real property transaction in closed session on July 24, 2024. Following discussions Item 1D - Page 3
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PROPERTY SUMMARY
Sub ct Cit County State ZI l>arcell D Tax ID
SW corne r of North Pa lm Drive and Tramwa y Road Pa Im Sprl ngs ,Riverside County Cal iforn ia 9 2262 669 -320-00 4 SW corne r of North Pa lm Drive and Tramway Road Pa Im Sprl ngs Riverside County Cal iforn ia 922 62 669 -320-005 SW corne r of North Pa lm Drive and Tr amway Road Pa Im Sprl ngs Riverside County Cal iforn ia 9 22 62 669 -320-007 SW corne r of North Pa lm Drive and Tramway Road Pa Im Sprl ngs Riverside County Cal iforn ia 9 2262 669 -372-00 1 SW corne r of North Pa lm Drive and Tr amwa y Road Pa Im Sprl ngs ,Riverside County Cal iforn ia 9 22 62 669 -372-002 City Council Staff Report
December 12, 2024 -- Page 4
Watermarke Property Donation/ Density Transfer Agreement
with Watermark, City staff and City Attorney, this item is being brought forward for the City Council’s consideration of the transaction, as detailed below.
STAFF ANALYSIS:
The proposed transaction contemplates two components: (1) the donation of the subject property to the City; and, (2) the transfer of density from the subject. Each is discussed in turn below.
Property Donation
As stated in the City’s General Plan, transfers of land to the City serve as an effective means of preserving open space. ( City of Palm Springs General Plan Land Use Policy
13.3; City of Palm Springs General Plan Citizens’ Task Force for Mountain and Foothill Preservation and Planning, Guiding Principle.) Under the federal Internal Revenue Code, the City is considered a “charitable organization” for which donations of land may, under certain circumstances, qualify the transferor for tax benefits.
The proposed agreement provides that Watermarke will transfer the 190 acres of real property to the City at no cost to the City. This will be accomplished by way of a standard escrow process, including review of title and a due diligence period. Watermarke has provided an appraisal of the property indicating that it has a fair market value of $29,500,000.00. However, the proposed agreement expressly states that the City is making no representations or warranties as to the taxability of the transaction, nor does the City endorse or otherwise acknowledge any valuation of the Property for tax purposes.
Once the property is conveyed to the City, the City has the option of holding the property itself for open space purposes, or the City could convey the property to another charitable organization that focuses on the preservation and maintenance of open space. Under the proposed agreement, the parties hope to close escrow by the end of the year.
Density Transfer
As mentioned above, density transfer is a mechanism that is encouraged by the City’s General Plan for the preservation of open space within areas such as the Chino Cone. (City of Palm Springs General Plan Land Use Action 13.2.) And, the City’s Zoning Ordinance implements this with a provision that currently states,
§ 92.21.1.07 Transfer of density.
The purpose of this transfer of density section is to maximize the preservation of open space, significant views, and other valuable characteristics of property within the ESA -SP zone by allowing the re- distribution of development rights among properties and between planning areas.
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City Council Staff Report
December 12, 2024 -- Page 5
Watermarke Property Donation/ Density Transfer Agreement
***
C. Transfer Outside Planning Areas.
From any planning area, allowed residential density may be transferred to any lot within the city with a bonus of 1.2 units at the receiving site for every unit from the sending site, subject to approval of a specific plan for the sending planning area and an appropriate entitlement for the receiving site, including but not limited to a specific plan, conditional use permit, or a planned development permit. Density transfers shall be reviewed for the effect of such transfers on increasing open space, preserving views, minimizing grading or other land disturbance and reducing the expenditures for public services to the planning area and to the impacts on the receiving site or vicinity.
***
D. (3) For any receiver site, the applicable specific plan shall be prepared to include an amendment to the applicable permitted land use densities of the Palm Springs general plan. (Ord. 1700 § 10, 2006; Ord. 1707 § 2, 2006; Ord. 1919 § 3, 2017)
The density transfer provisions of the proposed agreement would authorize the transfer of at least two hundred sixty -four (264) dwelling units to other property within the City.
The City’s Density Transfer Ordinance currently would adjust this number to three hundred and seventeen (317) dwelling units, assuming the transfer was to property outside of the same planning area.
It should be noted that, as part of any future transfer of density pursuant to this proposed agreement, the applicant would need to process, and the City Council would need to approve, a specific plan for the receiving site. The City would also have to undertake the necessary environmental review for such density increase, pursuant to the California Environmental Quality Act (“CEQA”), Pub. Res. Code §§ 21000 et seq.
The density that is permitted to be transferred under this proposed agreement can be accomplished in one or more separate transfers. The receiving properties may be properties that are owned by Watermarke, of if agreed to by the owner of the receiving property, to properties owned by others.
Finally, all other laws applicable to the development of the receiving site(s) would apply, including any subsequently adopted zoning ordinances of the City.
Therefore, City staff would recommend the City Council consider and approve the accompanying Real Property Donation and Density Transfer Agreement.
Item 1D - Page 5
City Council Staff Report
December 12, 2024 -- Page 6
Watermarke Property Donation/ Density Transfer Agreement
ENVIRONMENTAL ASSESSMENT:
This Agreement is not subject to further review under the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) , pursuant to Section 15307 of the State Guidelines, Existing Facilities, because this Agreement consists of an action taken by a regulatory agency (the City) as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource, since the regulatory process involves procedures for protection of the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
This agenda item aligns with the City Council’s major theme/principle that environmental stewardship and sustainability underpin all priorities, programs and project , in that the proposed agreement provides for the transfer of property to the City for open space purposes.
FISCAL IMPACT:
The 190 acres of property would be transferred to at no cost to the City. There would be some incremental cost to the City of maintaining the property while the property is owned by the City, however this is not expected to be significant. In addition, if the City were to ever transfer this property to another entity, such as a conservancy group, the City may need to pay for survey markers to be placed on the property. That would be subject to negotiation with the receiving agency.
REVIEWED BY:
City Attorney: Jeffrey S. Ballinger
City Manager: Scott Stiles
ATTACHMENTS:
A. Property Donation and Density Transfer Agreement
B. Business Entity Disclosure Form
Item 1D - Page 6
ATTACHMENT A
Item 1D - Page 7
55575.18100\42992471.1
Project: Chino Cone
APN: 669-372-001
669-372-002
669-320-
004
669-320-005
669-320-007
REAL PROPERTY DONATION
AND DE
NSITY TRANSFER
AGREEMENT
THIS AGREEMENT (“Agreement”) is made this 12th day of December, 2024 (“Effective Date”) by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation, herein called “City,” and WATERMARKE VENTURES, LLC, a California limited liability company, herein called “Donor” or “Watermarke”. The City and Donor/Watermarke are sometimes individually referred to as “Party” and collectively as “Parties.” WHEREAS, Donor is the owner of certain real property located in the City of Palm Springs, Riverside County, and as more particularly described and depicted on Exhibit “A” attached hereto (the “Chino Cone Real Property”);
WHEREAS, City desires to acquire the Chino Cone Real Property for purposes open space conservation;
WHEREAS, the City has determined that the preservation of the Chino Cone’s unique hillside character is of utmost importance and City has an established policies , actions and principles for the preservation of open space within the Chino Code, including the following:
Land Use Policy 9.2 -- Work with public and private natural resource and conservation groups to explore opportunities to preserve the Santa Rosa Mountains, San Jacinto Mountains, Chino Cone and Snow Creek in their natural state.
Land Use Action 13.2 -- Apply the use of density transfers between properties located within the Chino Cone and to properties elsewhere in the City to encourage the preservation of views and natural resources.
Land Use Policy 13.3 Continue to seek opportunities to acquire or designate open space for preservation. This could include land dedication, in- lieu fees, grants, density transfer, or other sources.
Citizens’ Task Force for Mountain and Foothill Preservation and Planning, Guiding Principle -- The City should continue its policies for open space acquisition and designation by which approximately 3,000 acres have been acquired (as of 2006), including mitigation of developer impacts through land dedication, density transfer and payment of in-lieu fees, acceptance of gifts of land, obtaining federal and state grants for conservation, working with regional conservation agencies, and developing other funding sources.
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WHEREAS, the Palm Springs Zoning Ordinance provides a mechanism for the transfer of development density, currently codified as Palm Springs Municipal Code § 92.21.1.07 (the “Density Transfer Ordinance”).
NOW, THEREFORE, City and Donor agree as follows:
1. Dedication of Property. Donor shall offer to dedicate the Property to City and City shall accept the offer of dedication of the Property, or interest therein, upon the terms and conditions set forth in this Agreement. “Property” means collectively the Chino Cone Real Property, all improvements presently or hereafter existing on the Chino Cone Real Property, all water rights, all mineral rights, all plans and specifications relating to the present or planned construction of improvements on the Chino Cone R eal Property , including all governmental permits or licenses, utility contracts, service contracts, maintenance contracts, operating contracts, or other intangible property (if any) now or in the future owned by Donor in connection with the development, operation, or ownership of the Property or other rights of any kind or character relating to the ownership, use, or operation of the Property, including all materials purchased by Donor for use on the Property or in the construction of improvements on the Property, and all of Donor’s rights in and to any fees paid to any governmental agency or utility.
2. Obligations of Donor.
2.1 Fee Interest . Upon acceptance by City , Donor shall convey, assign and transfer its fee interest in the Property to City, free and clear of all liens, encumbrances, easements, leases (recorded or unrecorded), bonds, assessments, and taxes except for (i) liens for non- delinquent property taxes and assessments, and (ii) those liens and encumbrances and easements which, in the sole discretion of City, are acceptable pursuant to Section 6.
2.2 Representations and Warranties of Donor. Donor represents and warrants to City that as of the date of this Agreement and as of the Close of Escrow:
2.2.1 Hazardous Substances. To the best of Donor’s actual knowledge, the Property is: (i) free from Hazardous Substances; (ii) contains no buried or partially buried storage tanks located on the Property; (iii) has not been used for the generation, storage or disposal of any Hazardous Substance and no Hazardous Substance has been spilled, disposed of, or stored on, under, or at the Property; and (iv) has never been used as a dump or landfill;
2.2.2 Compliance with Law . To the best of Donor’s actual knowledge, the Property is in material compliance with all applicable Laws and Environmental Laws;
2.2.3 Leases. No leases, licenses, or other agreements allowing any third party rights to use the Property are or will be in force as of the Closing;
2.2.4 Litigation and Investigations. Donor has not received notice of any pending or threatened litigation, administrative proceeding, or other legal or governmental action with respect to the Property, and Donor has received no notice, warning, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Property are or have been in violation of any Laws or Environmental Laws, or informing Donor that the Item 1D - Page 9
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Property is subject to investigation or inquiry regarding the violation of any Laws or Environmental Laws.
2.2.5 Condition of Property. To the best of Donor’s actual knowledge, there are no natural or artificial conditions upon the Property or any part of the Property that could result in a material and adverse change in the condition of the Property;
2.2.6 Access to the Property. The Property is contiguous to a public right of way; and
2.2.7 No Insolvency Proceedings. Donor has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; (iv) suffered the attachment or other judicial seizure of substantially all of its assets; or (v) admitted in writing its inability to pay its debts as they come due.
2.2.8 No Other Agreements, Undertakings or Tenancies. Donor will not enter into any agreements or undertake any new obligations prior to Close of Escrow which will in any way burden, encumber or otherwise affect the Property without the prior written consent of the City.
2.2.9 Disclosure. Within ten days following the full execution of t his Agreement and as provided in Section 4.1, Donor will disclose to City all information, records, and studies in Donor’s possession containing information relevant to the Property, including any reports or studies concerning Hazardous Substances (if any). All information that Donor has delivered to City , either directly or through Donor’s agents, shall be ccurate and in connection therewith Donor has disclosed all material facts concerning th e operation, development, or condition of the Property.
Donor shall promptly notify City of any facts that would cause any of the representations contained in this Agreement to be untrue as of the Close of Escrow. If City reasonably concludes that a fact materially and adversely affects the Property, City shall have the option to terminate this Agreement by delivering written notice to Donor and Escrow Agent as its sole and only remedy. If City terminates this Agreement pursuant to this Section, Escrow Agent shall cancel the Escrow and Donor shall be responsible for all costs of escrow.
Donor’s representations and warranties contained in this Agreement and in any document executed by Donor pursuant to this Agreement shall survive the closing for a period of six (6) months.
2.3 Indemnity. Donor agrees to indemnify City and agrees to defend and hold City harmless from all loss, cost, liability, expense, damage, or other injury, including without limitation, attorneys’ fees and expenses, to the fullest extent not prohibited by applicable law, and all other costs and expenses incurred by reason of, or in any manner resulting from (i) the breach of any warranties and representations in Section 2.2, and (ii) all third- party claims for Donor’s intentional acts or willful misconduct related to the Property occurring prior to the Close of Escrow.
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2.4 Definitions.
2.4.1 “Environmental Laws” means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance (as defined subsequently in this Agreement), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property), occupational or environmental conditions on, under, or about the Property, as now in effect, including without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Superfund Amendments and Reauthorization Act of 1986 (SARA) [42 U.S.C.A. §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) and the Solid Waste Disposal Act [42 U.S.C.A. §§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 U.S.C.A. §§ 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 U.S.C.A. §§ 2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 U.S.C.A. §§ 5101 et seq.]; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) [7 U.S.C.A. §§ 136 et seq.]; the Clean Air Act (CAA) [42 U.S.C.A. §§ 7401 et seq.]; the Safe Drinking Water Act (SDWA) [42 U.S.C.A. §§ 300f et seq.]; the Surface Mining Control and Reclamation Act of 1977 (SMCRA) [30 U.S.C.A. §§ 1201 et seq.]; the Emergency Planning and Community Right -to-Know Act of 1986 (EPCRA or EPCRTKA) [42 U.S.C.A. §§ 11001 et seq.]; the Occupational Safety and Health Act of 1970 (OSHA) [29 U.S.C.A. §§ 655, 657]; the California laws regarding the underground storage of hazardous substances [H & S C §§ 25280 et seq.]; the Hazardous Substance Account Act [H & S C §§ 25300 et seq.]; the California laws regarding hazardous waste control [H & S C §§ 25100 et seq.]; the Safe Drinking Water and Toxic Enforcement Act of 1986 [H & S C §§ 25249.5 et seq.]; the Porter-Cologne Water Quality Control Act [Wat C §§ 13000 et seq.], and any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law , statute, ordinance, or regulation now in effect that pertains to occupational health or industrial hygiene, and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.
2.4.2 “Hazardous Substances” includes without limitation:
(i) Those substances included within the definitions of “hazardous substance,” “hazardous waste,” “hazardous material,” “toxic substance,” “solid waste,” or “pollutant or contaminant” in CERCLA, RCRA, TSCA, HMTA, or under any other Environmental Law;
(ii) Those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the Environmental Protection Agency (EPA), or any successor agency, as hazardous substances [40 CFR Part 302]; (iii) Other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and Item 1D - Page 11
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(iv) Any material, waste, or substance that is: a petroleum or refined petroleum product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33 U.S.C.A. § 1321 or listed pursuant to 33 U.S.C.A. § 1317, a flammable explosive, or a radioactive material.
3. Escrow. By this Agreement, City and Donor establish an escrow (“Escrow”) with a reputable title company chosen by City (the “Escrow Agent”), subject to the provisions of the standard conditions for acceptance of escrow and the terms and conditions in this Agreement, with a signed counterpart of this document to be delivered as escrow instructions to Escrow Agent. In the event of any conflict between the terms of this Agreement and the standard conditions for acceptance of escrow, the terms of this Agreement shall control. City ’s agent for matters related to the Closing of Escrow shall be the City Manager or his designee.
4. Feasibility Period.
4.1 During the period commencing on the date of this Agreement and terminating on a date which is twenty (20) days from the date of this Agreement (“Feasibility Period”), City may undertake an inspection of the Property. Said inspection may include: (i) a review of the physical condition of the Property, including but not limited to, inspection and examination of soils, environmental factors, Hazardous Substances, if any, and archeological information relating to the Property; and (ii) a review and investigation of the effect of any zoning, maps, permits, reports, engineering data, regulations, ordinances, and laws affecting the Property.
Within ten (10) days following the full execution of this Agreement by both parties, Donor shall deliver to City copies of all architectural plans, surveys, specifications, and other documents pertaining to the physical, geological, or environmental condition of the Property that are owned by or in the possession of Donor.
4.2 intentionally left blank
4.3 If City disapproves of the results of the inspection and review or the results of any Phase I Environmental Report, City may elect, prior to the last day of the Feasibility Period, to terminate this Agreement by giving Donor written notification prior to the last day of the Feasibility Period (or any extension thereof). If City fails to properly notify Donor of the intent to terminate this Agreement, City shall be deemed to be satisfied with the results of the inspection and shall be deemed to have waived the right to terminate this Agreement pursuant to this provision.
5. Access.
5.1 Access to the Property during the Feasibility Period shall be given to City , its agents, employees, or contractors during normal business hours upon at least one (1) business day notice to Donor, at City ’s own cost and risk, for any purposes, including, but not limited to, inspecting the Property, taking samples of the soil, and conducting an environmental audit (including an investigation of past and current uses of the Property). City shall indemnify and defend Donor against and hold Donor harmless from all losses, costs, damages, liabilities, and expenses, including, without limitation, reasonable attorney fees arising out of City ’s entry onto the Property or any activity thereon by City or its agents, employees, or contractors prior to the Item 1D - Page 12
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Close of Escrow except to the extent any such losses, costs, damages, liabilities, and expenses arise out of the gross negligence or willful acts of Donor. Any entry onto the Property by City or its agents, employees, or contractors shall be at reasonable times. The provisions of this Section shall survive the Close of Escrow. Notwithstanding anything herein to the contrary, City and Donor agree that City shall not incur any liability hereunder merely by the discovery of an “Existing Adverse Condition” (as defined below) regardless of whether such Existing Adverse Condition, once revealed, negatively impacts the value of the Property or otherwise causes Donor to incur liabilities, costs or expenses. The term “Existing Adverse Condition” shall mean an adverse condition existing on or with respect to the Property that is discovered or revealed by City in the course of its Property inspection hereunder.
5.2 In addition to the provisions of Section 4.1, City and its agents, employees, or contractors shall have the right, from the date of this Agreement until the Closing Date, to contact any federal, state, or local governmental authority or agency to investigate any matters relating to the Property. Donor agrees to cooperate reasonably with City and its agents, employees, or contractors in the inspection of the Property and agrees to deliver to City all information in Donor’s possession or control pertaining to the condition of the Property, including engineering and environmental reports, studies, tests, monitoring results, and related documentation.
6. Title.
6.1 Immediately following the execution of this Agreement by both Parties, City shall cause Escrow Agent to issue to City (with a copy to Donor) a preliminary report for an ALTA Standard Policy of Title Insurance, setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters affecting Donor’s title to the Property (“Preliminary Report”), together with copies of all documents relating to title exceptions referred to in the Preliminary Report.
6.2 Following the full execution of this Agreement by both Parties, City may cause a survey and/or an ALTA Survey of the Property to be prepared by a registered surveyor or professional engineer (“Survey”). Donor agrees to deliver to City , promptly following the full execution and delivery of this Agreement, copies of any survey of the Property in the possession of Donor.
6.3 City shall approve or disapprove, in writing to Donor with a copy to Escrow Agent, each exception shown on the Preliminary Report and each encroachment, overlap, or boundary line dispute, or any other matter that materially and adversely affects title to the Property or that violates any law, rule, or regulation reflected on the Survey (each an “Exception”) at least ten days prior to the expiration of the Feasibility Period. City’s failure to object within such period shall be deemed to be a disapproval of the Exceptions. The Exceptions approved by City hereunder shall be referred to as the “Approved Exceptions.”
6.4 If any Exception is disapproved or deemed disapproved (each a “Disapproved Exception”), Donor shall have the right, but not the obligation, within five (5) days following expiration of the period provided under Section 6.3 above, to cause each Disapproved Exception to be discharged, satisfied, released, or terminated, as the case may be, of record, and in a form that is reasonably satisfactory to City and Escrow Agent, all at Donor’s sole cost and Item 1D - Page 13
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expense. Donor agrees to deposit into Escrow the sum sufficient to discharge any Disapproved Exception that may be discharged only by the payment of money. If Donor is unable or unwilling to obtain a discharge, satisfaction, release, or termination of any Disapproved Exception within the period specified above, then this Agreement shall automatically terminate five (5) days after expiration of the period for curing the Disapproved Exceptions or after Donor advises City in writing that Donor is unable or unwilling to cause such discharge, satisfaction, release, or termination, whichever occurs first, unless within such period City waives in writing such Disapproved Exception, in which event such Disapproved Exception shall be deemed an Approved Exception under this Agreement. If this Agreement terminates pursuant to the foregoing sentence, then Donor shall pay all charges of the Escrow Agent in connection with this transaction, but excluding the charges of the surveyor and environmental engineering company; and the Parties shall be relieved of all further obligations and liabilities to each other under this Agreement except as otherwise provided herein, and all funds and documents deposited with Escrow Agent shall be promptly refunded or returned, as the case may be, by Escrow Agent to the depositing Party.
Anything above to the contrary notwithstanding, it is understood and agreed that City’s indemnity obligations under Section 5 shall not terminate upon termination of this Agreement pursuant to this or any other provision hereof.
7. Intentionally Deleted.
8. Close of Escrow.
8.1 Title. Simultaneously with the Close of Escrow, Escrow Agent shall issue an ALTA Standard Policy of Title Insurance (formerly referred to as a CLTA Title Policy) (“Title Policy”) in the amount of $29,500,000.00, subject only to (i) liens for real property taxes, bonds, and assessments not then due, and (ii) the Approved Exceptions.
8.2 Donor’s Deposits into Escrow. Donor shall deposit with Escrow Agent on or prior to the Close of Escrow the following documents:
(i) a grant deed in the form attached hereto as Exhibit “C” executed and acknowledged by Donor, conveying to City good and marketable fee simple title to the Property, subject only to the Approved Exceptions (“Deed”); (ii) Donor’s approval of the draft of Escrow Agent’s closing statement.
8.3 City’s Deposits into Escrow. City ’s approval of the Survey, and City ’s approval of the draft of Escrow Agent’s closing statement. City shall deposit with Escrow Agent prior to or after the Close of Escrow, the documents related to the Installation Contract described in Section 7.
8.4 Closing Date. The conveyance of the Property to City and the closing of this transaction (“Close of Escrow”) shall take place within fifteen days of the expiration of the Feasibility Period (“Closing Date”).
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8.5 Closing Statements . No more than two days prior to the Closing Date, Escrow Agent shall deliver to City and to Donor, for their respective approvals, drafts of Escrow Agent’s closing statement showing all receipts and disbursements of the Escrow.
8.6 Closing Instructions. On the Closing Date (or any extension thereof), Escrow Agent shall close Escrow as follows:
(i) record the Deed (marked for return to City ) with the Riverside County Recorder;
(ii) issue the Title Policy;
(iii) prorate taxes, assessments, rents, and other charges as provided in Section 8.7 below;
(iv) prepare and deliver to both City and Donor one signed copy of Escrow Agent’s closing statement showing all receipts and disbursements of the Escrow; (v) If Escrow Agent is unable to simultaneously perform all of the instructions set forth above, Escrow Agent shall notify City and Donor and retain all funds and documents pending receipt of further instructions jointly issued by City and Donor.
8.7 Closing Costs and Prorations. Donor shall pay the following closing costs and prorations through the Close of Escrow:
(i) All governmental conveyancing fees and taxes due upon transfer of the Property, except that no documentary transfer tax will be payable with respect to this transaction, pursuant to Revenue and Taxation Code Section 11922; (ii) The recording charges in connection with recordation of the Deed; except that this Deed is entitled to be recorded without a fee pursuant to Government Code Section 27383 because the Deed is for the benefit of a public agency; (iii) All charges in connection with issuance of the Title Policy in the amount of $29,500,000.00 (additional endorsements and extended coverage to be paid for by City);
(iv) All charges in connection with removing any Disapproved Exceptions pursuant to Section 6.4 and to cure any defect in vesting in order to satisfy the condition set forth in Section 9(v); and
(v) All fees and charges levied by Escrow Agent.
8.8 Real Estate Taxes, Bonds, and Assessments. Donor shall pay real property taxes at the Close of Escrow based on the most current real property tax bill available, including any additional property taxes that may be assessed after the Close of Escrow, regardless of wh en notice of those taxes is received or who receives the notice. Donor may seek reimbursement from the Riverside County Tax Assessor’s office for any property taxes that have been assessed for a Item 1D - Page 15
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period after the Close of Escrow as City is a public agency exempt from payment of such taxes.
City further agrees to cooperate with Donor to provide any necessary information to the Assessor’s office in connection with such request for refund. All installments of any bond or assessment that constitutes a lien on the Property at the Close of Escrow shall be paid by Donor.
8.9 Possession. Possession of the Property shall be delivered to City at the Close of Escrow.
9. Acceptance. The acceptance of the Property by City and the Closing of Escrow (as defined in Section 8) are subject to the satisfaction of the following no later than the Closing Date:
(i) City’s approval of the condition of the Property as provided in Section 4 and title to the Property as provided in Section 6. (ii) The representations and warranties of Donor set forth in Section 2.2 shall be true and accurate as of the Closing Date; (iii) Donor’s performance of all obligations under this Agreement;
(iv) No adverse material change shall have occurred with respect to the condition of the Property from the end of the Feasibility Period through the Closing Date; (v) Escrow Agent being prepared to issue the Title Policy on the Close of Escrow, subject only to the Approved Exceptions.
10. The performance by the City of its obligations under this Agreement shall relieve the City of any and all further obligations or claims on account of the acceptance of the offer of dedication. The City agrees to use the Property for the purposes of open space.
11. The Escrow may be terminated by City upon three (3) days written notice to Donor and Escrow Agent if the conditions to closing set forth in Section 9 have not been fulfilled on or before the Closing Date. Upon termination by City pursuant to this Section 12, Donor shall be responsible for all costs and expenses of Escrow Agent.
12. Density Transfer.
a. City and Watermarke acknowledge and agree that two hundred and sixtyfour (264) single family equivalents of density (“SFEs”) are allocated to the Chino Cone Real Property as of the Effective Date of this Agreement. The SFEs described in the preceding sentence, as may be adjusted by the Density Transfer Ordinance, is referred to in this Agreement as the “Existing Density.”
b. At any time between the Effective D ate of this Agreement and January 31, 2034, Watermarke shall be permitted to transfer all or any portion of the Exis ting Density to any other real property, as determined by Watermarke in its sole and absolute discretion, that is within the then-existing City limits of the City of Palm Springs or which is subject to a proposed annexation Item 1D - Page 16
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to the City provided the annexation is approved by the LAFCO and is then owned by Watermarke or its successor in interest (the “Receiving Property”). c. The density transfer authorized by this Section 13 may be made in one or more separate transfers. Any density transfer made pursuant to this Agreement shall be evidenced by a Density Transfer Agreement and Covenant substantially in the form that is attached as Exhibit “D” to this Agreement.
d. Each density transfer request shall be processed in accordance with the City’s Density Transfer Ordinance. Any density transferred pursuant to this Agreement may not be developed without all other land use entitlements (other than those pertaining to dens ity) that are required to be issued by the City relating to the property subject to the land use entitlement pursuant to its then applicable land use ordinance in effect. Without limiting the general nature of the foregoing sentence, any density transf er to property as allowed under this Agreement may also require under applicable law that the property in question be subject to an amendment to the General Plan Land Use designation, as well as environmental review pursuant to the California Environmental Quality Act (“CEQA”), Pub. Res. Code §§ 21000 et seq. e. Watermarke may designate real property not owned by Watermarke or its affiliates as “Receiving Property”, but only the written agreement by Watermarke and all owners of record of such real property, as evidenced such owner’s/owners’ execution of a Density Transfer Agreement and Covenant.
f. This Agreement is not, and shall not be construed as, a statutory development agreement as authorized by Government Code sections 65864 et seq ., and (except for the density
authorized to be transferred pursuant to this Agreement) this Agreement shall not be interpreted as limiting the authority of the City to adopt and amend regulations concerning permitted uses of property, the density or intensity of use, the maximum height and size of proposed buildings, provisions for the reservation or dedication of land or the payment of impact fees for public purposes. Nor shall he execution of this Agreement preclude the current or future application of municipal, state or federal ordinances, laws, rules or regulations to the Receiving Property (collectively, “laws”), including, but not limited to, applicable building, fire, plumbing, engineering, electrical and mechanical codes, and City’s Development Code, Subdivision Standards and other applicable land use laws, as the same may be in effect from time to time. g. Nothing in this Agreement shall preclude or otherwise limit the lawful authority of City to adopt or amend any City law, including, but not limited to City ’s: (i) Zoning Code , (ii) General Plan, (iii) (iv) Chapter 9 of the PSMC concerning Subdivision Standards; provided, however, City and Watermarke acknowledge and agree that any such adoption or amendment shall not modify or supersede the terms and conditions of this Agreement. h. This Agreement shall be binding upon and inure to the benefit of City and Watermarke, and its lawful successors and assigns.
i. No official or employee of City shall be personally responsible for any actual or alleged breach of this Agreement by City. Watermarke shall defend, indemnify, and hold harmless the City of Palm Springs, its elected officials, agents, officers, and employees (“Indemnitees”) Item 1D - Page 17
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from any claim, action, or proceeding against the City of Palm Springs or any Indemnitee(s), arising, in any way, out of the approval of this Agreement or the activities authorized by this Agreement, including any award of attorneys’ fees and/or costs. The City will promptly notify the applicant of any such claim, action, or proceeding and the applicant will either undertake defense of the matter and pay the City’ s associated legal costs or will advance funds to pay for defense of the matter by the City Attorney. If the City fails to promptly notify Watermarke of any such claim, action or proceeding or fails to cooperate fully in the defense, Watermarke shall not, thereafter, be responsible to defend, indemnify, or hold harmless the Indemnitees.
Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without Watermarke’s consent but should it do so, the City shall waive the indemnification herein, except, the City's decision to settle or abandon a matter following an adverse judgment or failure to appeal, shall not cause a waiver of the indemnification rights herein.
13. As used in this Agreement, notice includes but is not limited to, the communication of any notice, request, demand, approval, statement, report, acceptance, consent, waiver and appointment. All notices must be in writing. Notice is given either (i) when delivered in person to the person or company intended named below, or (ii) when sent via reputable overnight courier (such as Federal Express), addressed by name and addressed to the party or persons intended, as follows:
To City: City of Palm Spring
Palm Springs City Hall
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
Phone: (760) 323-8299
Attention: City Manager
With copy to: Best Best & Krieger LLP
P.O. Box 1028
3390 University Avenue, 5th Floor
Riverside, CA 92502
Phone: (951) 686-1450
Attention: Jeffrey S. Ballinger
To Donor: Watermarke Ventures, LLC
1505 South D Street, Suite 200
San Bernardino, CA 92408
Phone: (909) 381-6007
Attention: John Pavelak
With copy to: Slovak, Baron, Empey, Murphy &
Pinkney LLP
303 N Indian Canyon Drive
Palm Springs, CA 92262
(Tel.): 760.760.2254
Attention: Robert Patterson, Esq.
Item 1D - Page 18
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until such time as a party gives notice of the change of address in accordance with the terms of this section.
14. This Agreement shall not be changed, modified or amended except upon the written consent of the Parties hereto.
15. This Agreement is the result of negotiations between the Parties and is intended by the Parties to be a final expression of their understanding with respect to the matters herein contained. This Agreement supersedes any and all other prior agreements and understandings, oral or written, in connection therewith. No provision contained herein shall be construed against the City solely because it prepared this Agreement in its executed form.
16. Donor, their assigns and successors in interest, shall be bound by all the terms and conditions contained in this Agreement, and all the parties thereto shall be jointly and severally liable thereunder.
17. This Agreement is not binding until executed by the City Manager of the City.
18. Notwithstanding any other provision of this Agreement or any other agreement between any of the Parties hereto, once the Property is conveyed to and accepted by the City , the City shall have no obligation to return the Property to the Donor under any circumstances, except in the sole and exclusive discretion of the City.
19. City agrees to cooperate with Donor to acknowledge receipt of the donation of the Property by signing Internal Revenue Form 8283 (Non-Cash Charitable Contributions) before the Close of Escrow and any other tax-related forms or documents reasonably requested by Donor and to return any such forms to Donor within thirty business (30) days after City’s receipt of such forms from Donor. Notwithstanding the foregoing, City makes no representation or warranty to Donor regarding the tax attributes of this transaction, nor shall City endorse or otherwise acknowledge any valuation of the Property for tax purposes, it being understood that the Donor has obtained its own appraisals and tax advice for such purposes.
20. This Agreement may be executed in one or more counterparts. Each shall be deemed an original and all, taken together, shall constitute one and the same instrument. [signature page follows]
Item 1D - Page 19
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IN THE WITNESS THEREOF, the Parties have caused this Agreement to be executed by their duly-authorized representatives on the date and year set forth below.
DONOR:
Watermarke Ventures, LLC, a California
limited liability company
By: _______________________________
John Pavelak, President
Date:
CITY:
City of Palm Springs, a California charter city
and a municipal corporation
By:
Scott Stiles, City Manager
Date:
Approved as to Form:
Slovak, Baron, Empey, Murphy & Pinkney
LLP
By:
Robert Patterson, Esq.
Approved as to Form:
Best Best & Krieger LLP
By:
Jeffrey S. Ballinger, City Attorney
ATTEST:
By:
Brenda Pree, City Clerk
Item 1D - Page 20
55575.18100\42992471.1
EXHIBIT “A”
LEGAL DESCRIPTION OF CHINO CONE PROPERTY
[SEE ATTACHED]
Item 1D - Page 21
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Item 1D - Page 22
55575.18100\42992471.1
EXHIBIT “C”
GRANT DEED
[SEE ATTACHED]
Item 1D - Page 23
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Recorded at request of and return to:
City of Palm Spring
Palm Springs City Hall
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
Attention: City Manager
FREE RECORDING
This instrument is for the benefit of the City of
Palm Springs
, and is entitled to be recorded
without fee. (Gov. Code, § 27383)
(Space above this line reserved for Recorder’s use)
GRANT DEED
APN: ______________________
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Watermarke Homes, LLC, a California limited liability company , herein called “Grantor”, hereby GRANTS to the City of Palm Springs, a California charter city and a municipal corporation (“Grantee”), the real property in the City of Palm Springs, County of Riverside, State of California, described as:
See Exhibit “A” attached hereto and made a part hereof
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the __th day of _______, 20__.
Signature of Donor
ATTACH NOTARY ACKNOWLEDGEMENT
Item 1D - Page 24
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CERTIFICATE OF ACCEPTANCE
This is to certify that the real property conveyed by Watermark Homes, LLC, a California limited liability company, on the Grant Deed dated _______________, 20__, to the City of Palm Springs (Grantee), is hereby accepted by the undersigned officer on behalf of the Grantee, pursuant to authority conferred by resolution of the City of Palm Springs City Council adopted on _____, __, 20__, and the Grantee consents to recordation thereof by its duly authorized officer.
Dated:
GRANTEE:
CITY OF PALM SPRINGS, A California
charter city and a municipal corporation
By: ________________________________
City Manager
Item 1D - Page 25
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EXHIBIT “D”
DENSITY TRANSFER AGREEMENT AND COVENANT
[SEE ATTACHED]
Item 1D - Page 26
ATTACHMENT B
Item 1D - Page 27
Item 1D - Page 28
1. Name of Entity
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Watermarke Ventures , LLC
2. Address of Entity (Principle Place of Business)
6741 Gemende Drive Suite A Riverside, Ca 92504
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 Entitv also reaistered in California ? n Yes n No
5. Type of Entity
D Corporation ~ 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 OT Grat LM, LLC D Officer D Director D Member !;2l Manager [name]
D General Partner D Limited Partner
Other
Lifestyle Homes , Inc D Officer D Director ~ Member D Manager (Revised 09 13 18)
[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
Item 1D - Page 29
7. Owners/Investors with a 5% beneficial interest in the Aoolicant 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. Dennis Troesh 90% - DT Grat LM, LLC
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
B.
John Pavelak 10% - Lifestyle Homes, Inc
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
C.
[name of owner/investor] [percentage 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 UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
I
(Revised 09 13 18)
Date
CITY OF PALM SPRINGS - PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
CITY COUNCIL STAFF REPORT
DATE: DECEMBER 12, 2024 CONSENT CALENDAR
SUBJECT: APPROVE MASTER SERVICE AGREEMENT NO. 24S377 WITH FLOCK
GROUP INC, FOR REPLACEMENT OF THE CITYWIDE PUBLIC SAFETY
CAMERA SYSTEM
FROM: Scott C. Stiles, City Manager
BY: Andrew G. Mills, Palm Springs Police Department
SUMMARY:
The Palm Springs Police Department (PSPD) needs to replace the City’s outdated public safety camera system, which has been in use for over 15 years and is no longer reliable.
The new system will cover 52 non-residential intersections across the city. The cost of the cameras, installation, and support will total $899,982 over three-years, fully covered by the Board of State and Community Corrections (BSCC) grant.
Flock is offering a limited -time discount on a large purchase of these citywide cameras, totaling $133,068.06, available only through the end of the year. To ensure the discount is secured, it is necessary for the PSPD to have this item placed on the City Council agenda for the December 12 meeting.
RECOMMENDATION:
1. Approve Master Service Agreement No. 24S377 for $89 9,982 (Attachment A) with Flock Group Inc. for the replacement of the citywide public safety camera system utilizing the BSCC grant funds for a term of three years.
2. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form (Attachment B), Flock Group Inc. is registered in the state of Delaware.
Item 1E - Page 1
City Council Staff Report
December 12, 2024 -- Page 2
PSPD Public Safety Camera System
BACKGROUND:
The current C ity public safety camera system, in use for over 15 years, is no longer reliable and lacks the necessary support or warranty, prompting the Palm Springs Police Department to seek a replacement with a modern, high- performance solution. T he proposed system from Flock Safety includes coverage at 5 2 key non-residential intersections across the city, augmenting the department's existing Flock ALPR system to enhance the public safety camera system capabilities and support real-time operations.
This new system is part of the Flock ecosystem, integrating technologies such as FlockOS, Flock Real -Time 911, and Flock Advanced ALPR search features, which will allow PSPD to monitor critical areas in real time, respond more effectively to incidents, and improve decision -making. This project is intended to enhance law enforcement capabilities and improve public safety while reducing crime.
STAFF ANALYSIS:
The Flock Safety cameras offer state-of-the-art technology that will significantly enhance the City’s public safety camera system capabilities by providing high- resolution video footage that can be accessed in real time to support public safety efforts. Strategically placed at 52 intersections, the cameras will ensure 24/7 monitoring of critical areas and will integrate with the department’s existing Flock ALPR system, which tracks license plates and consolidates data across PSPD’s systems. The Flock ecosys tem, which includes FlockOS, Flock Real-Time 911, Flock Advanced ALPR search, drones, mapping, and preplans, will enable PSPD to leverage real -time intelligence, improving situational awareness and enhancing responses to incidents.
This new system will replace the current public safety camera system, which is unreliable and no longer supported. The total cost for the cameras, installation, and ongoing support is $899,982 over three-years, fully covered by the BSCC grant, ensuring no fiscal impact on the City’s general fund and providing a long- term solution to the C ity’s surveillance needs with modern tools to improve public safety under the Department’s Public Safety Video Surveillance System Policy 341 (Attachment C).
This camera system is being procured as a sole source as allowed by Section 7.05.020 of the City’s Municipal Code (Attachment D). These cameras will need to be integrated with the Department’s existing Flock Automatic License Plate Recognition (ALPR) system and enhance real-time operations through the Flock ecosystem.
ENVIRONMENTAL ASSESSMENT
:
In accordance with the California Environmental Quality Act (“CEQA”) Guidelines the requested City Council action is not a “Project” pursuant to Section 15378(b)(5).
Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment are not considered a “Project”.
Item 1E - Page 2
City Council Staff Report
December 12, 2024 -- Page 3
PSPD Public Safety Camera System
ALIGNMENT WITH STRATEGIC PLANNING:
This agenda item aligns with the City Council’s Major Themes/Principles of optimizing basic services and focusing on issues that most impact quality of life, including crime.
FISCAL IMPACT:
The total cost of replacing the Public Safety camera system with Flock Safety cameras at 52 non-residential intersections, including installation and support, will be $899,982 over three-years. This purchase will be fully funded by the BSCC grant, with no impact on the City’s general fund. The Department will ensure that the project stays within budget and that all necessary resources, including installation, ongoing maintenance, and technical support, are provided through the grant funding.
To ensure the continued operation and effectiveness of the citywide public safety camera system beyond the initial three- year grant period, the police department will need to secure additional grant funding or request the C ity allocate budget funds for ongoing maintenance, system upgrades, and operational costs to maintain the system’s functionality and public safety benefits.
REVIEWED BY:
Department Director: Andrew G. Mills
Procurement and Contracting Director: Kim Baker
City Manager: Scott Stiles
ATTACHMENTS:
A. Agreement for Contract Services
B. Public Integrity Disclosure Form
C. PSPD Policy 341- Public Safety Video Surveillance System D. Sole Source Documentation
Item 1E - Page 3
ATTACHMENT A
Item 1E - Page 4
Master Services Agreement
This Master Services Agreement (this “Agreement”) is entered into by and between Flock Group, Inc. with a place of business at 1170 Howell Mill Road NW Suite 210, Atlanta, GA 30318 (“Flock”) and the entity identified in the signature block (“Customer”) (each a “Party,” and together, the “Parties”). This Agreement is effective on the date of mutual execution (“Effective Date”). Parties will sign an Order Form (“Order Form”) which will describe the Flock Services to be performed and the period for performance, attached hereto as Exhibit A.
RECITALS
WHEREAS, Flock offers a software and hardware situational awareness solution through Flock’s technology platform that upon detection is capable of capturing audio, video, image, and recording data and provide notifications to Customer (“Notifications”);
WHEREAS, Customer desires access to the Flock Services (defined below) on existing devices, provided by Customer, or Flock provided Flock Hardware (as defined below) in order to create, view, search and archive Footage and receive Notifications, via the Flock Services;
W
HEREAS, Customer shall have access to the Footage in Flock Services. Pursuant to Flock’s standard Retention Period (defined below) Flock deletes all Footage on a rolling thirty (30) day basis, except as otherwise stated on the Order Form. Customer shall be responsible for extracting, downloading and archiving Footage from the Flock Services on its own storage devices; and
WHEREAS, Flock desires to provide Customer the Flock Services and any access thereto, subject to the terms and conditions of this Agreement, solely for the awareness, prevention, and prosecution of crime, bona fide investigations and evidence gathering for law enforcement purposes, (“Permitted Purpose”).
Item 1E - Page 5
1. DEFINITIONS
Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross- referenced in this Section 1.
1.1 “Agreement” means the order form (to be provided as Exhibit A, “Order Form”), these terms and conditions, and any document therein incorporated by reference in section 11.4.
1.2 “Anonymized Data” means Customer Data permanently stripped of identifying details and any potential personally identifiable information, by commercially available standards which irreversibly alters data in such a way that a data subject (i.e., individual person or entity) can no longer be identified directly or indirectly.
1.3 “Authorized End User(s)” means any individual employees, agents, or contractors of Customer accessing or using the Services, under the rights granted to Customer pursuant to this Agreement.
1.4 “Customer Data” means the data, media, and content provided by Customer through the Services. For the avoidance of doubt, the Customer Data will include the Footage.
1.5. “Customer Hardware” means the third-party camera owned or provided by Customer and any other physical elements that interact with the Embedded Software and the Web Interface to provide the Services.
1.6 “Effective Date” means the date this Agreement is mutually executed (valid and enforceable) by both Parties.
1.7 “Embedded Software” means the Flock proprietary software and/or firmware integrated with or installed on the Flock Hardware or Customer Hardware.
1.8 “Flock Hardware” means the Flock device(s), which may include the pole, clamps, solar panel, installation components, and any other physical elements that interact with the Embedded Software and the Web Interface, to provide the Flock Services as specifically set forth in the applicable Order Form.
1.9 “Flock IP” means the Services, the Embedded Software, and any intellectual property or proprietary information therein or otherwise provided to Customer and/or its Authorized End Users. Flock IP does not include Footage (as defined below).
1.10 “Flock Services” means the provision of Flock’s software and hardware situational awareness solution, via the Web Interface, for automatic license plate detection, alerts, audio detection, searching image records, video and sharing Footage.
Item 1E - Page 6
1.11 “Footage” means still images, video, audio, and other data captured by the Flock Hardware or Customer Hardware in the course of and provided via the Flock Services.
1.12 “Installation Services” means the services provided by Flock for installation of Flock Services.
1.13 “Permitted Purpose” means for legitimate public safety and/or business purpose, including but not limited to the awareness, prevention, and prosecution of crime; investigations; and prevention of commercial harm, to the extent permitted by law.
1.14 “Retention Period” means the time period that the Customer Data is stored within the cloud storage, as specified in the applicable Order Form. Flock deletes all Footage on a rolling thirty (30) day basis, except as otherwise stated on the Order Form. Customer shall be responsible for extracting, downloading and archiving Footage from the Flock Services on its own storage devices.
1.15 “Term” means the date, unless otherwise stated in the Order Form, upon which the cameras are validated by both Parties as operational.
1.16 “Web Interface” means the website(s) or application(s) through which Customer and its Authorized End Users can access the Services.
Item 1E - Page 7
2. SERVICES AND SUPPORT
2.1 Provision of Access. Flock hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the Flock Services via the Web Interface during the Term, solely for the Authorized End Users. The Footage will be available for Authorized End Users to access and download via the Web Interface for the Retention Period. Authorized End Users will be required to sign up for an account and select a password and username (“User ID”). Customer shall be responsible for all acts and omissions of Authorized End Users.
Customer shall undertake reasonable efforts to make all Authorized End Users aware of all applicable provisions of this Agreement and shall cause Authorized End Users to comply with such provisions. Flock may use the services of one or more third parties to deliver any part of the Flock Services, (such as using a third party to host the Web Interface for cloud storage or a cell phone provider for wireless cellular coverage).
2.2 Embedded Software License. Flock grants Customer a limited, non-exclusive, non- transferable, non-sublicensable (except to the Authorized End Users), revocable right to use the Embedded Software as it pertains to Flock Services, solely as necessary for Customer to use the Flock Services.
2.3 Support Services. Flock shall monitor the Flock Services, and any applicable device health, in order to improve performance and functionality. Flock will use commercially reasonable efforts to respond to requests for support within seventy-two (72) hours. Flock will provide Customer with reasonable technical and on-site support and maintenance services in-person, via phone or by email at [email protected] (such services collectively referred to as “Support Services”).
2.4 Update s to Platform. Flock may make any updates to system or platform that it deems necessary or useful to (i) maintain or enhance the quality or delivery of Flock’s products or services to its agencies, the competitive strength of, or market for, Flock’s products or services, such platform or system’s cost efficiency or performance, or (ii) to comply with applicable law.
Parties understand that such updates are necessary from time to time and will not diminish the quality of the services or materially change any terms or conditions within this Agreement.
2.5 Service Interruption. Services may be interrupted in the event that: (a) Flock’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law; (b) any third-party services required for Services are interrupted; (c) if Services are being used for Item 1E - Page 8
malicious, unlawful, or otherwise unauthorized use; (d) there is a threat or attack on any of the Flock IP by a third party; or (e) scheduled or emergency maintenance (“Service Interruption”).
Flock will make commercially reasonable efforts to provide written notice of any Service Interruption to Customer, to provide updates, and to resume providing access to Flock Services as soon as reasonably possible after the event giving rise to the Service Interruption is cured.
Flock will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized End User may incur as a result of a Service Interruption. To the extent that the Service Interruption is not caused by Customer’s direct actions or by the actions of parties associated with the Customer, the time will be tolled by the duration of the Service Interruption (for any continuous suspension lasting at least one full day). For example, in the event of a Service Interruption lasting five (5) continuous days, Customer will receive a credit for five (5) free days at the end of the Term.
2.6 Service Suspension. Flock may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Flock IP or Flock Service if (a) there is a threat or attack on any of the Flock IP by Customer; (b) Customer’s or any Authorized End User’s use of the Flock IP disrupts or poses a security risk to the Flock IP or any other customer or vendor of Flock; (c) Customer or any Authorized End User is/are using the Flock IP for fraudulent or illegal activities; (d) Customer has violated any term of this provision, including, but not limited to, utilizing Flock Services for anything other than the Permitted Purpose; or (e) any unauthorized access to Flock Services through Customer’s account (“Service Suspension”).
Customer shall not be entitled to any remedy for the Service Suspension period, including any reimbursement, tolling, or credit. If the Service Suspension was not caused by Customer, the Term will be tolled by the duration of the Service Suspension.
2.7 Hazardous Conditions. Flock Services do not contemplate hazardous materials, or other hazardous conditions, including, without limit, asbestos, lead, or toxic or flammable substances.
In the event any such hazardous materials are discovered in the designated locations in which Flock is to perform services under this Agreement, Flock shall have the right to cease work immediately.
3. CUSTOMER OBLIGATIONS
Item 1E - Page 9
3.1 Customer Obligations. Flock will assist Customer Authorized End Users in the creation of a User ID. Authorized End Users agree to provide Flock with accurate, complete, and updated registration information. Authorized End Users may not select as their User ID, a name that they do not have the right to use, or any other name with the intent of impersonation. Customer and Authorized End Users may not transfer their account to anyone else without prior written permission of Flock. Authorized End Users shall not share their account username or password information and must protect the security of the username and password. Unless otherwise stated and defined in this Agreement, Customer shall not designate Authorized End Users for persons who are not officers, employees, or agents of Customer. Authorized End Users shall only use Customer-issued email addresses for the creation of their User ID. Customer is responsible for any Authorized End User activity associated with its account. Customer shall ensure that Customer provides Flock with up-to-date contact information at all times during the Term of this agreement. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Flock Services (e.g., laptops, internet connection, mobile devices, etc.). Customer shall (at its own expense) provide Flock with reasonable access and use of Customer facilities and Customer personnel in order to enable Flock to perform Services (such obligations of Customer are collectively defined as “Customer Obligations”).
3.2 Customer Representations and Warranties. Customer represents, covenants, and warrants that Customer shall use Flock Services only in compliance with this Agreement and all applicable laws and regulations, including but not limited to any laws relating to the recording or sharing of data, video, photo, or audio content.
4. DATA USE AND LICENSING
4.1 Customer Data. As between Flock and Customer, all right, title and interest in the Customer Da
ta, belong to and are retained solely by Customer. Customer hereby grants to Flock a limited, non-exclusive, royalty-free, irrevocable, worldwide license to use the Customer Data and perform all acts as may be necessary for Flock to provide the Flock Services to Customer. Flock does not own and shall not sell Customer Data.
4.2 Customer Generated Data. Flock may provide Customer with the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available, messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, Item 1E - Page 10
content, ratings, reviews, data, questions, suggestions, or other information or materials produced by Customer (“Customer Generated Data”). Customer shall retain whatever legally cognizable right, title, and interest in Customer Generated Data. Customer understands and acknowledges that Flock has no obligation to monitor or enforce Customer’s intellectual property rights of Customer Generated Data. Customer grants Flock a non-exclusive, irrevocable, worldwide, royalty-free, license to use the Customer Generated Data for the purpose of providing Flock Services. Flock does not own and shall not sell Customer Generated Data.
4.3 Anonymized Data. Flock shall have the right to collect, analyze, and anonymize Customer Data and Customer Generated Data to the extent such anonymization renders the data non- identifiable to create Anonymized Data to use and perform the Services and related systems and technologies, including the training of machine learning algorithms. Customer hereby grants Flock a non-exclusive, worldwide, perpetual, royalty-free right to use and distribute such Anonymized Data to improve and enhance the Services and for other development, diagnostic and corrective purposes, and other Flock offerings. Parties understand that the aforementioned license is required for continuity of Services. Flock does not own and shall not sell Anonymized Data.
5. CONFIDENTIALITY; DISCLOSURES
5.1 Confidentiality. To the extent required by any applicable public records requests, each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
Proprietary Information of Flock includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Flock or collected by Flock via Flock Services, which includes but is not limited to geolocation information and environmental data collected by sensors. The Receiving Party agrees: (i) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the Party takes with its own proprietary information, but in no event less than commercially reasonable precautions, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the Item 1E - Page 11
foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. At the termination of this Agreement, all Proprietary Information will be returned to the Disclosing Party, destroyed or erased (if recorded on an erasable storage medium), together with any copies thereof, when no longer needed for the purposes above, or upon request from the Disclosing Party, and in any case upon termination of the Agreement.
Notwithstanding any termination, all confidentiality obligations of Proprietary Information that is trade secret shall continue in perpetuity or until such information is no longer trade secret.
5.2 Usage Restrictions on Flock IP. Flock and its licensors retain all right, title and interest in and to the Flock IP and its components, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.
Customer further acknowledges that Flock retains the right to use the foregoing for any purpose in Flock’s sole discretion. Customer and Authorized End Users shall not: (i) copy or duplicate any of the Flock IP; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of any of the Flock IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Flock IP; (iii) attempt to modify, alter, tamper with or repair any of the Flock IP, or attempt to create any derivative product from any of the foregoing; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Flock IP; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within the Flock Services or Flock IP; (vi) use the Flock Services for anything other than the Permitted Purpose; or (vii) assign, sublicense, sell, resell, lease, rent, or otherwise transfer, convey, pledge as security, or otherwise encumber, Customer’s rights. There are no implied rights.
5.3 Disclosure of Footage. Subject to and during the Retention Period, Flock may access, use, preserve and/or disclose the Footage to law enforcement authorities, government officials, and/or Item 1E - Page 12
third parties, if legally required to do so or if Flock has a good faith belief that such access, use, preservation or disclosure is reasonably necessary to comply with a legal process, enforce this Agreement, or detect, prevent or otherwise address security, privacy, fraud or technical issues, or emergency situations.
6. PAYMENT OF FEES
6.1 Billing and Payment of Fees. Customer shall pay the fees set forth in the applicable Order Form based on the billing structure and payment terms as indicated in the Order Form. To the extent the Order Form is silent, Customer shall pay all invoices net thirty (30) days from the date of receipt. If Customer believes that Flock has billed Customer incorrectly, Customer must contact Flock no later than thirty (30) days after the closing date on the first invoice in which the error or problem appeared to receive an adjustment or credit. Customer acknowledges and agrees that a failure to contact Flock within this period will serve as a waiver of any claim. If any undisputed fee is more than thirty (30) days overdue, Flock may, without limiting its other rights and remedies, suspend delivery of its service until such undisputed invoice is paid in full. Flock shall provide at least thirty (30) days’ prior written notice to Customer of the payment delinquency before exercising any suspension right.
6.2 Notice of Changes to Fees. In the event of any changes to fees, Flock shall provide Customer with sixty (60) days’ notice (email sufficient) prior to the end of the Initial Term or Renewal Term (as applicable). Any such changes to fees shall only impact subsequent Renewal Terms.
6.3 Taxes. To the extent Customer is not a tax exempt entity, Customer is responsible for all taxes, levies, or duties, excluding only taxes based on Flock’s net income, imposed by taxing authorities associated with the order. If Flock has the legal obligation to pay or collect taxes, including amount subsequently assessed by a taxing authority, for which Customer is responsible, the appropriate amount shall be invoice to and paid by Customer unless Customer provides Flock a legally sufficient tax exemption certificate and Flock shall not charge Customer any taxes from which it is exempt. If any deduction or withholding is required by law, Customer shall notify Flock and shall pay Flock any additional amounts necessary to ensure that the net amount that Flock receives, after any deduction and withholding, equals the amount Flock would have received if no deduction or withholding had been required.
Item 1E - Page 13
7. TERM AND TERMINATION
7.1 Term. The initial term of this Agreement shall be for the period of time set forth on the Order Form (the “Term”). Unless otherwise indicated on the Order Form, the Term shall commence upon first installation of Flock Hardware, as applicable. Following the Term, unless otherwise indicated on the Order Form, this Agreement will automatically renew for successive renewal terms of the greater of one year or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
7.2 Termination. Upon termination or expiration of this Agreement, Flock will remove any applicable Flock Hardware at a commercially reasonable time period. In the event of any material breach of this Agreement, the non-breaching Party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach prior to the expiration of such thirty (30) day period (“Cure Period”). Either Party may terminate this Agreement (i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other Party's making an assignment for the benefit of creditors, or (iii) upon the other Party's dissolution or ceasing to do business. In the event of a material breach by Flock, and Flock is unable to cure within the Cure Period, Flock will refund Customer a pro-rata portion of the pre-paid fees for Services not received due to such termination.
7.3 Survival. The following Sections will survive termination: 1, 3, 5, 6, 7, 8.3, 8.4, 9, 11.1 and
11.6. Item 1E - Page 14
8. REMEDY FOR DEFECT; WARRANTY AND DISCLAIMER
8.1 Manufacturer Defect. Upon a malfunction or failure of Flock Hardware or Embedded Software (a “Defect”), Customer must notify Flock’s technical support team. In the event of a Defect, Flock shall make a commercially reasonable attempt to repair or replace the defective Flock Hardware at no additional cost to the Customer. Flock reserves the right, in its sole discretion, to repair or replace such Defect, provided that Flock shall conduct inspection or testing within a commercially reasonable time, but no longer than seven (7) business days after Customer gives notice to Flock.
8.2 Replacements. In the event that Flock Hardware is lost, stolen, or damaged, Customer may request a replacement of Flock Hardware at a fee according to the reinstall fee schedule (https://www.flocksafety.com/reinstall-fee-schedule). In the event that Customer chooses not to replace lost, damaged, or stolen Flock Hardware, Customer understands and agrees that Flock is not liable for any resulting impact to Flock service, nor shall Customer receive a refund for the lost, damaged, or stolen Flock Hardware.
8.3 Warranty. Flock shall use reasonable efforts consistent with prevailing industry standards to ma
intain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Installation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Flock or by third-party providers, or because of other causes beyond Flock’s reasonable control, but Flock shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
8.4 Disclaimer. THE REMEDY DESCRIBED IN SECTION 8.1 ABOVE IS CUSTOMER’S SOLE REMEDY, AND FLOCK’S SOLE LIABILITY, WITH RESPECT TO DEFECTS.
FLOCK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND FLOCK
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A Item 1E - Page 15
PARTICULAR PURPOSE. THIS DISCLAIMER ONLY APPLIES TO THE EXTENT ALLOWED BY THE GOVERNING LAW OF THE STATE MENTIONED IN SECTION 11.6.
8.5 Insurance. Flock will maintain commercial general liability policies as stated in Exhibit B.
8.6 Force Majeure. Parties are not responsible or liable for any delays or failures in performance from any cause beyond their control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, pandemics (including the spread of variants), issues of national security, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, supply chain shortages of equipment or supplies, financial institution crisis, weather conditions or acts of hackers, internet service providers or any other third party acts or omissions.
9. LIMITATION OF LIABILITY; INDEMNITY
9.1 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY,
FLOCK, ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND
EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED
THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER THEORY: (A) FOR LOSS OF REVENUE, BUSINESS OR BUSINESS INTERRUPTION; (B) INCOMPLETE, CORRUPT, OR INACCURATE DATA; (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (D) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (E) FOR ANY MATTER BEYOND FLOCK’S ACTUAL
KNOWLEDGE OR REASONABLE CONTROL INCLUDING REPEAT CRIMINAL ACTIVITY OR INABILITY TO CAPTURE FOOTAGE; OR (F) FOR ANY AMOUNTS
THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,
EXCEED THE FEES PAID AND/OR PAYABLE BY CUSTOMER TO FLOCK FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE
ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FLOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION OF LIABILITY OF SECTION ONLY APPLIES TO THE EXTENT
ALLOWED BY THE GOVERNING LAW OF THE STATE REFERENCED IN SECTION Item 1E - Page 16
11.6. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE FOREGOING
LIMITATIONS OF LIABILITY SHALL NOT APPLY (I) IN THE EVENT OF GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) INDEMNIFICATION OBLIGATIONS.
9.2 Responsibility. Each Party to this Agreement shall assume the responsibility and liability for the acts and omissions of its own employees, officers, or agents, in connection with the performance of their official duties under this Agreement. Each Party to this Agreement shall be liable for the torts of its own officers, agents, or employees.
9.3 Flock Indemnity. Flock shall indemnify and hold harmless Customer, its agents and employees, from liability of any kind, including claims, costs (including defense) and expenses, on account of: (i) any copyrighted material, patented or unpatented invention, articles, device or appliance manufactured or used in the performance of this Agreement; or (ii) any damage or injury to property or person directly caused by Flock’s installation of Flock Hardware, except for where such damage or injury was caused solely by the negligence of the Customer or its agents, officers or employees. Flock’s performance of this indemnity obligation shall not exceed the fees paid and/or payable for the services rendered under this Agreement in the preceding twelve (12) months.
10. INSTALLATION SERVICES AND OBLIGATIONS
10.1 Ownership of Hardware. Flock Hardware is owned and shall remain the exclusive property of Flock. Title to any Flock Hardware shall not pass to Customer upon execution of this Agreement, except as otherwise specifically set forth in this Agreement. Except as otherwise expressly stated in this Agreement, Customer is not permitted to remove, reposition, re-install, tamper with, alter, adjust or otherwise take possession or control of Flock Hardware. Customer agrees and understands that in the event Customer is found to engage in any of the foregoing restricted actions, all warranties herein shall be null and void, and this Agreement shall be subject to immediate termination for material breach by Customer. Customer shall not perform any acts which would interfere with the retention of title of the Flock Hardware by Flock. Should Customer default on any payment of the Flock Services, Flock may remove Flock Hardware at Flock’s discretion. Such removal, if made by Flock, shall not be deemed a waiver of Flock’s Item 1E - Page 17
rights to any damages Flock may sustain as a result of Customer’s default and Flock shall have the right to enforce any other legal remedy or right.
10.2 Deployment Plan. Flock shall advise Customer on the location and positioning of the Flock Hardware for optimal product functionality, as conditions and locations allow. Flock will collaborate with Customer to design the strategic geographic mapping of the location(s) and implementation of Flock Hardware to create a deployment plan (“Deployment Plan”). In the event that Flock determines that Flock Hardware will not achieve optimal functionality at a designated location, Flock shall have final discretion to veto a specific location, and will provide alternative options to Customer.
10.3 Changes to Deployment Plan. After installation of Flock Hardware, any subsequent requested changes to the Deployment Plan, including, but not limited to, relocating, re- positioning, adjusting of the mounting, removing foliage, replacement, changes to heights of poles will incur a fee according to the reinstall fee schedule located at (https://www.flocksafety.com/reinstall-fee-schedule). Customer will receive prior notice and confirm approval of any such fees.
10.4 Customer Installation Obligations. Customer is responsible for any applicable supplementary cost as described in the Customer Implementation Guide, attached hereto as Exhibit C. Customer represents and warrants that it has, or shall lawfully obtain, all necessary right title and authority and hereby authorizes Flock to install the Flock Hardware at the designated locations and to make any necessary inspections or maintenance in connection with such installation.
10.5 Flock’s Obligations. Installation of any Flock Hardware shall be installed in a professional manner within a commercially reasonable time from the Effective Date of this Agreement. Upon removal of Flock Hardware, Flock shall restore the location to its original condition, ordinary wear and tear excepted. Flock will continue to monitor the performance of Flock Hardware for the length of the Term. Flock may use a subcontractor or third party to perform certain obligations under this Agreement, provided that Flock’s use of such subcontractor or third party shall not release Flock from any duty or liability to fulfill Flock’s obligations under this Agreement.
11. MISCELLANEOUS
Item 1E - Page 18
11.1 Compliance With Laws. Parties shall comply with all applicable local, state and federal laws, regulations, policies and ordinances and their associated record retention schedules, including responding to any subpoena request(s).
11.2 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
11.3 Assignment. This Agreement is not assignable, transferable or sublicensable by either Party, without prior consent. Notwithstanding the foregoing, either Party may assign this Agreement, without the other Party's consent, (i) to any parent, subsidiary, or affiliate entity, or (ii) to any purchaser of all or substantially all of such Party's assets or to any successor by way of merger, consolidation or similar transaction.
11.4 Entire Agreement. This Agreement, together with the Order Form(s), the reinstall fee schedule (https://www.flocksafety.com/reinstall-fee-schedule), and any attached exhibits are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous or contemporaneous negotiations, discussions or agreements, whether written and oral, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. None of Customer’s purchase orders, authorizations or similar documents will alter the terms of this Agreement, and any such conflicting terms are expressly rejected. Any mutually agreed upon future purchase order is subject to these legal terms and does not alter the rights and obligations under this Agreement, except that future purchase orders may outline additional products, services, quantities and billing terms to be mutually accepted by Parties. In the event of any conflict of terms found in this Agreement or any other terms and conditions, the terms of this Agreement shall prevail. Customer agrees that Customer’s purchase is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by Flock with respect to future functionality or feature.
11.5 Relationship. No agency, partnership, joint venture, or employment is created as a result of thi
s Agreement and Parties do not have any authority of any kind to bind each other in any respect whatsoever. Flock shall at all times be and act as an independent contractor to Customer.
11.6 Governing Law; Venue. This Agreement shall be governed by the laws of the state in which the Customer is located. The Parties hereto agree that venue would be proper in the Item 1E - Page 19
chosen courts of the State of which the Customer is located. The Parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.
11.7 Special Terms. Flock may offer certain special terms which are indicated in the Order Form and will become part of this Agreement, upon Customer’s prior written consent and the mutual execution by authorized representatives (“Special Terms”). To the extent that any terms of this Agreement are inconsistent or conflict with the Special Terms, the Special Terms shall control.
11.8 Publicity. Upon prior written consent, Fl ock has the right to reference and use Customer’s name and disclose the nature of the Services in business and development and marketing efforts.
Nothing contained in this Agreement shall be construed as conferring on any Party, any right to use the other Party’s name as an endorsement of product/service.
11.9 Feedback. If Customer or Authorized End User provides any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the subject matter hereunder, Agency or Authorized End User hereby assigns to Flock all right, title and interest (including intellectual property rights) with respect to or resulting from any of the foregoing.
11.10 Export. Customer may not remove or export from the United States or allow the export or re-export of the Flock IP or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign Customer or authority. As defined in Federal Acquisition Regulation (“FAR”), section
2.101, the Services, the Flock Hardware and Documentation are “commercial items” and according to the Department of Defense Federal Acquisition Regulation (“DFAR”) section 252.2277014(a)(1) and are deemed to be “commercial computer software” and “commercial computer software documentation.” Flock is compliant with FAR Section 889 and does not contract or do business with, use any equipment, system, or service that uses the enumerated banned Chinese telecommunication companies, equipment or services as a substantial or essential component of any system, or as critical technology as part of any Flock system.
Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or Item 1E - Page 20
commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
11.11 Headings. The headings are merely for organization and should not be construed as adding meaning to the Agreement or interpreting the associated sections.
11.12 Authority. Each of the below signers of this Agreement represent that they understand this Agreement and have the authority to sign on behalf of and bind the Parties they are representing upon the Effective Date.
11.13 Conflict. In the event there
is a conflict between this Agreement and any applicable statement of work, or Customer purchase order, this Agreement controls unless explicitly stated otherwise.
11.14 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt to the address listed on the Order Form (or, if different, below), if sent by certified or registered mail, return receipt requested.
11.15 Non-Appropriation. Notwithstanding any other provision of this Agreement, all obligations of the Customer under this Agreement which require the expenditure of public funds are conditioned on the availability of said funds appropriated for that purpose. To the extent applicable, Customer shall have the right to terminate this Agreement for non appropriation with thirty (30) days written notice without penalty or other cost. .
Item 1E - Page 21
FLOCK NOTICES ADDRESS:
1170 HOWELL MILL ROAD, NW SUITE 210
ATLANTA, GA 30318
ATTN: LEGAL DEPARTMENT
EMAIL: [email protected]
Customer NOTICES ADDRESS:
ADDRESS:
ATTN:
EMAIL:
200 S. Civic Drive Palm Springs, CA 92262
William Hutchinson
[email protected]
Item 1E - Page 22
EXHIBIT B
INSURANCE
Required Coverage. F lock shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the services under this Agreement and the results of that work by Flock or its agents, representatives, employees or subcontractors. Insurance shall be placed with insurers with a current A. M. Best rating of no less than “A” and “VII”. Flock shall obtain and, during the term of this Agreement, shall maintain policies of professional liability (errors and omissions), automobile liability, and general liability insurance for insurable amounts of not less than the limits listed herein. The insurance policies shall provide that the policies shall remain in full force during the life of the Agreement. Flock shall procure and shall maintain during the life of this Agreement Worker's Compensation insurance as required by applicable State law for all Flock employees. For the avoidance of doubt, (i) all required insurance limits by Customer can be met through a combination of primary and excess/umbrella coverage, and (ii) Flock’s Cyber and Errors and Omissions insurance has a shared limit of Five Million Dollars (5,000,000) per incident and in the aggregate.
Types and Amounts Required. Flock shall maintain, at minimum, the following insurance c
overage for the duration of this Agreement:
(i) Commercial General Liability insurance written on an occurrence basis with minimum limits of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and product and completed operations coverage;
(ii) Workers Compensation insurance in accordance with statutory limits; (iii) Professional Liability/Errors and Omissions insurance with minimum limits of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate;
Item 1E - Page 23
(iv) Commercial Automobile Liability insurance with a minimum combined single limit of One Million Dollars ($1,000,000) per occurrence for bodily injury, death, and property coverage, including owned and non-owned and hired automobile coverage; and (v) Cyber Liability insurance written on an occurrence basis with minimum limits of Five Million Dollars ($5,000,000).
(Signatures on following page)
Item 1E - Page 24
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM
SPRINGS AND FLOCK SAFETY
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:
APPRO
VED BY CITY COUNCIL:
Date: _12/12/24______ Item No.
APPRO
VED 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 1E - Page 25
Flock Safety + CA - Palm Springs PD
______________
Flock Group Inc.
1170 Howell Mill Rd, Suite 210
Atlanta, GA 30318
______________
MAIN CONTACT:
Larry Barsocchini
[email protected]
408.317.8617
Item 1E - Page 26
ORDER FORM
This order form (“Order Form”) hereby incorporates and includes the terms of the previously executed agreement (the “Terms”) which describe and set forth the general legal terms governing the relationship (collectively, the "Agreement" ). The Terms contain, among other things, warranty disclaimers, liability limitations and use limitations.
This additional services Agreement will be effective when this Order Form is executed by both Parties (the “Effective Date”) Customer: CA - Palm Springs PD Initial Term: 36 Months
Legal Entity Name: CA - Palm Springs PD Renewal Term: 24 Months Accounts Payable Email: Payment Terms: Net 30
Address: 200 S Civic Dr Palm Springs, California
92262
Billing Frequency: Annual Plan - First Year Invoiced at Signing.
Retention Period: 30 Days
Hardware and Software Products
Annual recurring amounts over subscription term
Item Cost Quantity Total
Flock Safety Platform $288,000.00
Flock Safety Video Products
Solar Condor PTZ Included 18 Included
Solar Condor ™ Fixed Included 4 Included
Flock Safety Condor ™ PTZ w/ LTE Service Included 2 Included Solar Condor ™ Fixed Included 99 Included
Flock Safety Condor ™ PTZ w/ LTE Service Included 33 Included Solar Condor ™ Fixed Included 2 Included
Professional Services and One Time Purchases
Item Cost Quantity Total
One Time Fees
Flock Safety Professional Services
Professional Services - Existing Infrastructure
Implementation Fee $49.00 18 $882.00
Professional Services - Bundle Implementation Fee $900.00 2 $1,800.00 Professional Services - Intersection Implementation
Fee $1,000.00 33 $33,000.00
Professional Services - Existing Infrastructure
Implementation Fee $150.00 2 $300.00
Subtotal Year 1: $323,982.00
Annual Recurring Subtotal: $288,000.00
Discounts: $133,068.06
Item 1E - Page 27
f i'ock safety
Estimated Tax: $0.00
Contract Total: $899,982.00
Taxes shown above are provided as an estimate. Actual taxes are the responsibility of the Customer. This Agreement will automatically renew for successive renewal terms of the greater of one year or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
Special Terms:
• In the event this Agreement is not approved by City of Palm Springs City Council, Palm Springs Police Department will have the option to terminate this Agreement by January 31, 2025 with no fee or penalty. The parties acknowledge and agree that the Flock will make commercially reasonable efforts to update the hardware for the Condor Multidirectional Bundle. Such updates shall not be considered a separate purchase or subject to additional charges.
Billing Schedule
Billing Schedule Amount (USD)
Year 1
At Contract Signing $323,982.00
Annual Recurring after Year 1 $288,000.00
Contract Total $899,982.00
*Tax not included
Discounts
Discounts Applied Amount (USD)
Flock Safety Platform $131,250.06
Flock Safety Add-ons $0.00
Flock Safety Professional Services $1,818.00
Item 1E - Page 28
Product and Services Description
Flock Safety Platform Items Product Description
FlockOS Features & Description
FlockOS Features Description
Item 1E - Page 29
By executing this Order Form, Customer represents and warrants that it has read and agrees to all of the terms and conditions contained in the previously executed agreement.
The Parties have executed this Agreement as of the dates set forth below.
FLOCK GROUP, INC. Customer: CA - Palm Springs PD
By:
\FSSignature2\
By:
\FSSignature1\
Name:
\FSFullname2\
Name:
\FSFullname1\
Title:
\FSTitle2\
Title:
\FSTitle1\
Date:
\FSDateSigned2\
Date:
\FSDateSigned1\
PO Number:
Item 1E - Page 30
ATTACHMENT B
Item 1E - Page 31
Item 1E - Page 32
Docusign Envelope ID: 93321B18-E908-43BB-90F4-F256E79E4BF0
1. 2.
3. 4.
5. Name of Entity
Flock Group Inc
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Address of Entity (Principle Place of Business)
1170 Howell Mill Road NW
Local or California Address (if different than #2)
suite 210
State where Entity is Registered with Secretary of State Delaware
If other than California, is the Entitv also reaistered in California? lxl Yes n No Type of Entity
~ 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 Garrett Langley
Iii Officer D Director D Member D Manager
[name}
D General Partner D Limited Partner
Other -
Mark smith
Iii Officer D Director D Member D Manager
[name}
D General Partner D Limited Partner
Other -
N/A
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
(Revised 09 13 18)
Item 1E - Page 33
Docusign Envelope ID: 93321B18-E908-43BB-90F4-F256E79E4BF0
7. Owners/Investors with a 5% beneficial interest in the Aoolicant Entitv or a related entitv
EXAMPLE
JANEDOE 50%, ABC COMPANY, Inc.
[name of owner/investor) [percentage of beneficial interest in entity and name of entity]
A.
Matrix Partners 14.484%
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
B.
Meritech Partners 9. 319%
[name of owner/investor] [percentage of beneficial interest in entity
and name of entitvl
C.
Andressen Horowitz 9.188%
[name of owner/investor] [percentage of beneficial interest in entity
and name of entitvl
D.
Bedrock capital 9.073%
[name of owner/investor] (percentage of beneficial interest in entity
and name of entity]
E.
Axon Enterprises, Inc s. 391%
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title Date ~Signed by;
L~,~:~
11/26/2024
CITY OF PALM SPRINGS - PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
(Revised 09 13 18)
ATTACHMENT C
Item 1E - Page 34
Policy
341
Palm Springs Police Department
Policies
Copyright Lexipol, LLC 2024/11/10, All Rights Reserved.
Published with permission by Palm Springs Police Department Public Safety Video Surveillance System - 1
Public Safety Video Surveillance System
341.1 PURPOSE AND SCOPE
This policy provides guidance for the placement and monitoring of department public safety video surveillance, as well as the storage and release of the captured images.
This policy only applies to overt, marked public safety video surveillance systems operated by the Department. It does not apply to mobile audio/video systems, covert audio/video systems or any other image-capturing devices used by the Department. 341.2 POLICY
The Palm Springs Police Department operates a public safety video surveillance system to complement its anti-crime strategy, to effectively allocate and deploy personnel, and to enhance public safety and security in public areas. Cameras may be placed in strategic locations throughout the City to detect and deter crime, to help safeguard against potential threats to the public, to help manage emergency response situations during natural and man-made disasters and to assist City officials in providing services to the community.
Video surveillance in public areas will be conducted in a legal and ethical manner while recognizing and protecting constitutional standards of privacy.
341.3 OPERATIONAL GUIDELINES
Only department-approved video surveillance equipment shall be utilized. Members authorized to monitor video surveillance equipment should only monitor public areas and public activities where no reasonable expectation of privacy exists. The Chief of Police or the authorized designee shall approve all proposed locations for the use of video surveillance technology and should consult with and be guided by legal counsel as necessary in making such determinations. 341.3.1 PLACEMENT AND MONITORING
Camera placement will be guided by the underlying purpose or strategy associated with the overall video surveillance plan. As appropriate, the Chief of Police should confer with other affected City divisions and designated community groups when evaluating camera placement. Environmental factors, including lighting, location of buildings, presence of vegetation, or other obstructions, should also be evaluated when determining placement.
The cameras shall only record video images and not sound. Recorded images may be used for a variety of purposes, including criminal investigations and monitoring of activity around high- value or high-threat areas. The public video surveillance system may be useful for the following purposes:
(a) To prevent, deter, and identify criminal activity.
(b) To target identified areas of gang and narcotics complaints or activity. (c) To respond to critical incidents.
Item 1E - Page 35
Palm Springs Police Department
Policies
Public Safety Video Surveillance System
Copyright Lexipol, LLC 2024/11/10, All Rights Reserved.
Published with permission by Palm Springs Police Department Public Safety Video Surveillance System - 2
(d) To assist in identifying, apprehending, and prosecuting offenders. (e) To document officer and offender conduct during interactions to safeguard the rights of the public and officers.
(f) To augment resources in a cost-effective manner.
(g) To monitor pedestrian and vehicle traffic activity.
Images from each camera should be recorded in a manner consistent with the underlying purpose of the particular camera. Images should be transmitted to monitors installed in the Watch Commander’s office and the Dispatch Center. When activity warranting further investigation is reported or detected at any camera location, the available information should be provided to responding officers in a timely manner. The Watch Commander or trained personnel in the Dispatch Center are authorized to adjust the cameras to more effectively view a particular area for any legitimate public safety purpose.
The Chief of Police may authorize video feeds from the public safety video surveillance system to be forwarded to a specified location for monitoring by other than police personnel, such as allied government agencies, road or traffic crews, or fire or emergency operations personnel.
Unauthorized recording, viewing, reproduction, dissemination, or retention is prohibited. 341.3.2 CAMERA MARKINGS
All public areas monitored by public safety surveillance equipment shall be marked in a conspicuous manner with appropriate signs to inform the public that the area is under police surveillance. Signs should be well lit, placed appropriately and without obstruction to ensure visibility.
341.3.3 INTEGRATION WITH OTHER TECHNOLOGY
The Department may elect to integrate its public safety video surveillance system with other technology to enhance available information. Systems such as gunshot detection, incident mapping, crime analysis, license plate recognition, facial recognition and other video-based analytical systems may be considered based upon availability and the nature of department strategy.
The Department should evaluate the availability and propriety of networking or otherwise collaborating with appropriate private sector entities and should evaluate whether the use of certain camera systems, such as pan-tilt-zoom systems and video enhancement or other analytical technology, requires additional safeguards.
341.4 VIDEO SUPERVISION
Supervisors should monitor video surveillance access and usage to ensure members are within department policy and applicable laws. Supervisors should ensure such use and access is appropriately documented.
Item 1E - Page 36
Palm Springs Police Department
Policies
Public Safety Video Surveillance System
Copyright Lexipol, LLC 2024/11/10, All Rights Reserved.
Published with permission by Palm Springs Police Department Public Safety Video Surveillance System - 3
341.4.1 VIDEO LOG
A log should be maintained at all locations where video surveillance monitors are located. The log should be used to document all persons not assigned to the monitoring locations who have been given access to view or monitor images provided by the video surveillance cameras. The logs should, at a minimum, record the:
(a) Date and time access was given.
(b) Name and agency of the person being given access to the images. (c) Name of person authorizing access.
(d) Identifiable portion of images viewed.
341.4.2 PROHIBITED ACTIVITY
Public safety video surveillance systems will not intentionally be used to invade the privacy of individuals or observe areas where a reasonable expectation of privacy exists.
Public safety video surveillance equipment shall not be used in an unequal or discriminatory manner and shall not target individuals or groups based solely on actual or perceived characteristics such as race, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, economic status, age, cultural group, or disability.
Video surveillance equipment shall not be used to harass, intimidate, or discriminate against any individual or group.
341.5 STORAGE AND RETENTION OF MEDIA
All downloaded media shall be stored in a secure area with access restricted to authorized persons. A recording needed as evidence shall be copied to a suitable medium and booked into evidence in accordance with established evidence procedures. All actions taken with respect to retention of media shall be appropriately documented.
The type of video surveillance technology employed and the manner in which recordings are used and stored will affect retention periods. The recordings should be stored and retained in accordance with the established records retention schedule and for a minimum of one year. Prior to destruction, written consent shall be obtained from the City Attorney. If recordings are evidence in any claim filed or any pending litigation, they shall be preserved until pending litigation is resolved (Government Code § 34090.6).
Any recordings needed as evidence in a criminal or civil proceeding shall be copied to a suitable medium and booked into evidence in accordance with current evidence procedures. 341.5.1 EVIDENTIARY INTEGRITY
All downloaded and retained media shall be treated in the same manner as other evidence.
Media shall be accessed, maintained, stored and retrieved in a manner that ensures its integrity as evidence, including strict adherence to chain of custody requirements. Electronic trails, including encryption, digital masking of innocent or uninvolved individuals to preserve anonymity, authenticity certificates and date and time stamping, shall be used as appropriate to preserve Item 1E - Page 37
Palm Springs Police Department
Policies
Public Safety Video Surveillance System
Copyright Lexipol, LLC 2024/11/10, All Rights Reserved.
Published with permission by Palm Springs Police Department Public Safety Video Surveillance System - 4
individual rights and to ensure the authenticity and maintenance of a secure evidentiary chain of custody.
341.6 VIDEO SURVEILLANCE AUDIT
The Chief of Police or the authorized designee will conduct an annual review of the public safety video surveillance system. The review should include an analysis of the cost, benefit and effectiveness of the system, including any public safety issues that were effectively addressed or any significant prosecutions that resulted, and any systemic operational or administrative issues that were identified, including those related to training, discipline or policy.
The results of each review shall be appropriately documented and maintained by the Chief of Police or the authorized designee and other applicable advisory bodies. Any recommendations for training or policy should be promptly addressed.
341.7 TRAINING
All department members authorized to operate or access public video surveillance systems shall receive appropriate training. Training should include guidance on the use of cameras, interaction with dispatch and patrol operations and a review regarding relevant policies and procedures, including this policy. Training should also address state and federal law related to the use of video surveillance equipment and privacy.
Item 1E - Page 38
ATTACHMENT D
Item 1E - Page 39
Oct
ober 23, 2024
2024 S
ole Source Letter for Flock Safety® Public Safety Solutions Flock Safety Drone-as-First Responder (“DFR”)
Flock Safety® is the sole manufacturer, developer, and distributor of the Flock Safety® Drone - as-First Responder and the Flock Safety® Drone Dock.
The
Flock Safety® Drone-as-First Responder and the Flock Safety ® Drone Dock are the only Law Enforcement Grade drone- as-a-first response and docking devices to offer the following combination of proprietary features:
• A fully remote, fully automated, multi-station, multi-drone, DFR platform capable of providing air support
• Improves safety by enabling a tele-operator to deploy a strategically positioned drone that can travel and arrive anywhere in the operational area within three (3) minutes • Video live feed enables quick observation to a wide variety of issues and provides enhanced situational awareness for case clearance
• Designed to arrive on scene before patrol resources, which allows for a rapid response to high priority calls for service rendering it one of the most effective de-escalation tools • All flight details are logged and any pictures/recordings during the flight can be viewed and downloaded for proper chain of evidence procedures
• Autonomous return and landing to Flock Safety® Drone IP55-rated docking station, which can withstand heat up to 120℉ and cold down to -5℉, as well as heavy rainfall and snow
• Best-in-class 1880p video range and connectivity to ensure safe operations anywhere in a 3.5 NM radius from each station
• Offers live and recorded video solutions, including hardware, ongoing maintenance, and a cloud-based video management system, which allows officers to remotely view instant replay of downloadable live on-scene video
• Fifty-five (55) minute maximum flight time, 400 ft maximum ceiling, a fifty-three (53) MPH maximum horizontal speed, 400X Blended optical zoom, a 640 x 512 radiometric thermal camera allowing for 32X thermal zoom, a 1.86 mile laser rangefinder, and night vision
• Use data from all integrated interfaces, including computer-aided dispatch (“CAD”), gunshot detection systems, and automated license plate recognition (“ALPR”) systems • An all-in-one solution that includes all hardware (drone, payload), software, pilot, and permitting/waiver support
• Performance monitoring software to predict potential failures and critical or minor issues.
Item 1E - Page 40
f i"ock safety
• Enables the use of the existing Real Time Crime Center (“RTCC”) team with no additional staffing
• Ability to enhance situational awareness capacity by layering the Flock Safety® Drone feed onto the FlockOS® ESRI-based map and FlockOS®, the Flock Safety® public safety platform that unifies first and third-party data across LPR, video, and audio to deliver real-time intelligence
• Flight logs are automatically updated in the system, ensuring transparency by providing accessible, redacted flight data for community members
• Success metrics of the DFR program are displayed in real time on a public dashboard, illustrating its positive community impact through quantifiable results ● Partnerships
o Flock Safety® is the only provider to officially partner with AXON to be natively and directly integrated into Evidence.com.
o Flock Safety® is the only provider to be fully integrated into a dynamic network of Axon’s Fleet 3 mobile ALPR cameras for patrol cars and Flock Safety’s Falcon® cameras.
o Access to additional cameras and other hardware purchased by Flock’s customers and partners means an ever-increasing amount of hardware usage and data at no additional cost.
Flock Safety® LPR Video Camera
Flock Safety® is the sole manufacturer, developer, and distributor of the Flock Safety Condor™ PTZ video camera.
Flock Safety Condor™ PTZ
• Live and recorded video with remote PTZ controls ideal for open areas such as intersections or parks
• Subscription-based live and recorded video solution, including hardware, cellular, installation, ongoing maintenance, and a cloud-based video management system, which allows officers to remotely view instant replay of downloadable live on-scene video with PTZ controls and 25X optical zoom without the need for additional camera network set- up, installation, or up-keep
• Improves safety with live and recorded video for enhanced situational awareness and case clearance
The Flock Safety® LPR video camera listed above is the only Law Enforcement Grade LPR video camera to offer the following combination of proprietary features:
• Vehicle Fingerprint Technology®
o Patented proprietary machine vision to analyze vehicle license plate, state recognition, and vehicle attributes such as color, type, make and objects (roof rack, bumper stickers, etc.) based on image analytics (not car registration data) Item 1E - Page 41
f i"ock safety
o Machine vision to capture and identify characteristics of vehicles with a paper license plate and vehicles with the absence of a license plate o Ability to “Save Search” based on description of vehicles using Flock’s patented Vehicle Fingerprint Technology® without the need for a license plate, and set up alerts based on vehicle description
o Only LPR provider with “Visual Search,” which can transform digital images from any source into an investigative lead by finding matching vehicles based on the vehicle attributes in the uploaded photo
• Integrated Cloud-Software & Hardware Platform
o Best in class ability to capture and process up to 30,000 vehicles per day with a single device powered exclusively by solar power
o Wireless deployment of solar powered license plate reading cameras with integrated cellular communication weighing less than 5lbs and able to be powered solely by a solar panel of 60W or less
o Web based footage retrieval tool with filtering capabilities such as vehicle color, vehicle type, vehicle manufacturer, partial or full license plate, state of license plate, and object detection
o Utilizes motion capture to start and stop recording without the need for a reflective plate
o Motion detection allows for unique cases such as bicycle capture, ATV, motorcycle, etc.
o On device machine processing to limit LTE bandwidth consumption o All images and metadata is encrypted throughout its entire lifecycle from on- device to storage in Flock’s US-based CJIS-compliant cloud o Cloud storage of footage
o Covert industrial design for minimizing visual pollution
• Transparency & Ethical Product Design
o One-of-a-kind “Transparency Portal,” a public-facing dashboard that details the policies in place by the purchaser, as well as automatically updated metrics from the Flock Safety® system
o Built-in integration with National Center for Missing & Exploited Children (“NCMEC”) to receive AMBER Alerts to find missing children o Privacy controls to enable certain vehicles to “opt-out” of being captured
• Integrated Audio & Gunshot Detection
o Ability to pair with Flock Safety Raven® audio detection device, which has natively integrated audio detection capabilities utilizing machine learning to recognize audio signatures typical of crimes in progress (e.g., gunshots)
• Live Video Integration
o Ability to apply computer vision to third-party cameras using the Flock Safety Wing® LPR video camera, transforming them into evidence capture devices Item 1E - Page 42
f i'ock safety
using the same Vehicle Fingerprint® technology offered on the Flock Safety Falcon® ALPR cameras
o Flock Safety Wing® Livestream integrates live stream traffic cameras, publicly or privately owned livestream security cameras into one cloud-based situational awareness dashboard to increase response time in mission-critical incidents o Manage various government intelligence including ALPR, livestream cameras, CAD, automatic vehicle location (“AVL”) on Flock Safety Wing® suite o Ability to access live and recorded video using Flock Safety Condor™, a subscription video solution which allows officers to remotely view instant replay of downloadable live on-scene video with PTZ controls and 25X optical zoom without the need for additional camera network set-up, installation, or up-keep.
• Situational Awareness
o FlockOS® is the world’s first and only public safety operating system compatible with Flock Safety® LPR video cameras, including Flock Safety Condor™ live streaming fixed and Flock Safety Condor™ PTZ video cameras, and the Flock Safety Raven® audio detection device, while seamlessly integrating first and third-party data across video, LPR, and audio to deliver real-time intelligence and retroactive crime solving in a single-pane real-time crime center o Ability to enhance situational awareness capacity by layering all intelligence streams onto the FlockOS® ESRI-based map
o FlockOS® features Flock Safety® unique Real-Time Routing feature that analyzes various data sources to determine where a suspect vehicle has been and its’ direction of travel providing users with possible outcomes based on a confidence threshold
• Warranty & Service:
o Lifetime maintenance and support included in subscription price o Flock Safety® is the only fully integrated ALPR one-stop solution from production of the device to delivery and installation
o Performance monitoring software to predict potential failures, obstructions, tilts, and other critical or minor issues
• Partnerships
o Flock Safety® is the only LPR provider to officially partner with Axon® to be natively and directly integrated into Evidence.com®
o Flock Safety® is the only LPR provider to be fully integrated into a dynamic network of Axon Fleet® 3 mobile ALPR cameras for patrol cars and Flock Safety’s Falcon® cameras
o Access to additional cameras purchased by Flock’s HOA and private business partners, means an ever-increasing amount of cameras and data at no additional cost
Item 1E - Page 43
f i'ock safety
Thank you,
Garrett Langley CEO, Flock Safety®
Item 1E - Page 44
f i"ock safety
CITY COUNCIL STAFF REPORT
DATE: D ECEMBER 12, 2024 CONSENT CALENDAR
SUBJECT: HUMAN RIGHTS COMMISSION
FROM: Scott C. Stiles, City Manager
BY: Jeremy Hammond, Deputy City Manager
SUMMARY:
This report provides direction to the Human Rights Commission to resume new business items.
RECOMMENDATION:
That the City Council grants the Human Rights Commission the ability to resume the consideration of new business effective immediately.
BUSINESS PRINCIPAL DISCLOSURE:
Not Applicable.
BACKGROUND:
At the City Council meeting of May 23, 2024, the Council discussed some concerns regarding the Commission and a potential lack of direction and involvement from the City Council. The City Council believed it was necessary to intervene and help facilitate a process to reimagine the Commission. Following a robust discussion, the Council voted to limit the work of the Human Rights Commission to focus solely on an update to the mission and goals of the Commission leading to a revision of the Municipal Code. The Council also directed that the Commission take on no new business, rather focus solely on providing input to a subcommittee of the City Council on this matter.
STAFF ANALYSIS:
At the November 21, 2024 City Council meeting, the Council discussed findings from the HRC Council Subcommittee and heard oral testimony from members of the public. The Council directed staff to prepare a draft ordinance revising Chapter 2.45 of the Palm Springs Municipal Code. At the same meeting, the Council also discussed their desire to Item 1F - Page 1
City Council Staff Report
December 12, 2024 -- Page 2
Human Rights Commission
allow the HRC to resume taking on new business and directed staff to return with a report to effectuate this change.
ENVIRONMENTAL ASSESSMENT:
Not Applicable.
ALIGNMENT WITH STRATEGIC PLANNING:
Focus on issues that most impact the quality of life.
FISCAL IMPACT:
This action is not anticipated to have any significant fiscal impact.
REVIEWED BY:
Deputy City Manager: Jeremy Hammond
City Manager: Scott Stiles
ATTACHMENTS:
None.
Item 1F - Page 2
CITY COUNCIL STAFF REPORT
DATE: DECEMBER 12, 2024 SPECIAL ITEM
SUBJECT: APPOINTMENT OF THE MAYOR AND MAYOR PRO TEM
FROM: Scott C. Stiles, City Manager
BY: Brenda Pree, City Clerk
RECOMMENDATION:
Appoint Ron deHarte to the position of Mayor and Naomi Soto to the position of Mayor Pro Tem for a one-year term commencing upon appointment.
BACKGROUND:
On December 19, 2018, the City Council adopted Ordinance No. 1971 enacting a five- district electoral system in which the Mayor and Mayor Pro Tem are to be appointed from amongst the City Council. On April 17, 2019, the City Council adopted Resolution No. 24593 establishing procedures for the selection of the Mayor and Mayor Pro Tem.
Pursuant to Resolution No. 24593, at the first meeting in December, the current Mayor Pro Tem shall automatically succeed to the position of Mayor. The Council member residing in the next sequential district shall be appointed to Mayor Pro Tem.
Based on the criteria, below is the forecasted rotation through 2028:
Year Mayor Mayor Pro Tem
2025 Ron deHarte, District 3 Naomi Soto, District 4
2026 Naomi Soto, District 4 David Ready, District 5
2027 David Ready, District 5 District 1
2028 District 1 District 2
Special Item - Page 1
City Council Staff Report
December 12, 2024-- Page 2
Appointment of Mayor and Mayor Pro Tem
FISCAL IMPACT:
There is no fiscal impact associated with this action.
REVIEWED BY:
Department Director: Brenda Pree
City Manager: Scott Stiles
ATTACHMENTS:
A. Resolution No. 24593
Special Item - Page 2
ATTACHMENT A
Special Item - Page 3
Special Item - Page 4
RESOLUTION NO. 24593
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, ESTABLISHING
PROCEDURES FOR THE SELECTION OF A MAYOR AND
MAYOR PRO TEM
WHEREAS, on December 19, 2018, the Palm Springs City Council adopted Ordinance No. 1971 establishing a five (5) district electoral system. As a result, the Mayor and Mayor Pro Tern are to be selected from amongst the City Council; and WHEREASJ in December 2019, the current at-large Mayor's term will end and the position of Mayor shall become an appointed position, with appointments to be made annually, and the process for appointment shall be set by resolution; and WHEREAS, the Mayor and Mayor Pro Tern are peers of, and serve at the pleasure of, the other Councilmembers; and
WHEREAS, the purpose of this Resolution is to implement a rotating system for the appointment of Councilmembers to the honorary positions of Mayor and Mayor Pro Tern.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. At the first City Council meeting in December 2019 and at the first City Council meeting in December of each year thereafter, the City Council shall appoint a Councilmember to serve as Mayor and a Councilmember to serve as Mayor Pro Tern in accordance with the following: ·
1. The Mayor Pro Tern shall automatically succeed to the position of Mayor.
2. The Councilmember residing or representing the next sequential district shall be appointed Mayor Pro Tern.
3. If the current Mayor Pro Tern is not re-elected, the Councilmembers residing or representing the next sequential districts shall be appointed Mayor and Mayor Pro Tern, respectively.
4. A Councilmember shall not serve as Mayor during their first year on the City Council.
SECTION 2. In the event that a Councilmember would serve as Mayor during their first year on the City CouncilJ that Councilmember shall switch their year of service as Mayor with a Councilmember representing the next sequential District eligible and willing to serve as Mayor.
Special Item - Page 5
Resolution No. 24593
Page2
SECTION 3. If at any point in time a Councilmember serving as Mayor or Mayor Pro Tern resigns from the position or from the City Council, or otherwise is no longer able to continue serving in their capacity as Mayor or Mayor Pro Tern, the position shall be filled in the same manner as the annual appointments. At the first City Council meeting in December thereafter, the process for selecting a new Mayor and Mayor Pro Tern shall be modified as follows:
1. If the Councilmember serving as Mayor has only served a partial term, that Councilmember shall continue to serve as Mayor.
2. If the Councilmember serving as Mayor Pro Tern has only served a partial term, that Councilmember shall continue to serve as Mayor Pro Tern unless there is an outgoing Mayor, in which case the Councilmember shall be appointed to serve as Mayor.
SECTION 4. At the request of a Councilmember, the City Council may grant deferral of a Councilmember's term as Mayor or Mayor Pro Tern for good cause and return to the rotation shall require approval of the City Council.
SECTION 5. Notwithstanding any other provision of this section, a Councilmember may decline to serve as Mayor of Mayor Pro Tern. If a Councilmember declines to serve in either position, the selection of Mayor and Mayor Pro Tern shall continue as provided but removing the declining Councilmember from the rotation.
SECTION 6. Every District shall have an opportunity to serve as Mayor and Mayor Pro Tern every five (5) years, unless a Councilmember declines or defers their appointment.
SECTION 7. In the event that these procedures for the appointment of Mayor and Mayor Pro Tern would result in no Councilmember being eligible to fill either position, then the City Council may. vote to appoint anyone of its members to serve.
SECTION 8. The City Council by a four-fifths (415th) vote may remove the Mayor and/or Mayor Pro Tern. ·
SECTION 9. The City Clerk of the City of Palm Springs shall certify to the passage and adoption of this resolution and its approval by the City Council and shall cause the same to be listed in the records of the City.
Special Item - Page 6
Resolution No. 24593
ADOPTED THIS 17TH DAY OF APRIL , 2019 .
David H. Re~~~
City Manager
ATTEST:
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS)
I, ANTHONY J. MEJIA , City Clerk of the City of Palm Springs , hereby certify that Resolution No. 24593 is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on the 1 yth day of April, 2019, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN :
Councilmembe rs Holstege , Middleton , Roberts, Mayor Pro Tern Kors, and Mayor Moon
None
None
None
IN WITNESS WHEREOF , I have hereunto set my hand and affixed the official seal of the City of Palm Springs , California , this (p+--\. day of Moi---1 , ·1.u 1