Loading...
HomeMy WebLinkAbout00 Agenda packet w pg numbers CITY OF PALM DESERT REGULAR PALM DESERT CITY COUNCIL (CC), SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY (SA), AND HOUSING AUTHORITY (HA) MEETING (VIRTUAL MEETING) THURSDAY, APRIL 28, 2022 2:00 p.m. Study Session 3:00 p.m. Closed Session 4:00 p.m. Regular Session Note: Pursuant to Assembly Bill 361, this meeting may be conducted by teleconference and there will be no in-person public access to the meeting location. City Council Meetings are live-streamed. You can access and view the meetings through the City’s website at https://www.cityofpalmdesert.org and click on “Council Agenda” at the top of the page. Options for participating in the meeting: To participate by email, internet, or telephone, see detailed instructions on the last page. Page 1 AGENDA APRIL 28, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Agenda Page 2 CALL TO ORDER PUBLIC COMMENT FOR CLOSED SESSION ITEMS ONLY – Any person wishing to discuss any Closed Session business that is within the subject matter may participate utilizing one of the three options listed on the back page of this agenda. ADJOURN TO CLOSED SESSION A. Closed Session Meeting Minutes: April 14, 2022 B. Conference with Real Property Negotiator pursuant to Government Code Section 54956.8: 1) (City) Property: North Sphere Land Acquisition (Northeast corner of Portola Avenue/Dinah Shore) (APN 640-120-025) City Negotiator: Todd Hileman/Eric Ceja Other Party Negotiator: N/A Property Owner: Palm Desert University Gateway 2) (City) Property: City of Palm Desert 10-acres (Palm Communities ENA/Gerald Ford) (APN 694-120-028) City Negotiator: Todd Hileman/Martin Alvarez Other Party Negotiator: N/A Property Owner: City of Palm Desert 3) (City) Property: Northwest corner of Portola Avenue/Dinah Shore Drive (32 acres) (APNs 694-510-013 and 694-130-0207) City Negotiator: Todd Hileman/Eric Ceja Other Party Negotiator: N/A Property Owner: Freeway Lanes C. Conference with Legal Counsel regarding significant exposure to litigation pursuant to Government Code Section 54956.9(d)(2): 1) Potential cases: Two (2) Page 2 AGENDA APRIL 28, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Agenda Page 3 RECONVENE THE CITY COUNCIL, SUCCESSOR AGENCY, AND HOUSING AUTHORITY MEETING a) Roll Call b) Pledge of Allegiance to the Flag – Mayor Jan C. Harnik c) Inspiration/Invocation – Councilmember Kathleen Kelly REPORT ON ACTION FROM CLOSED SESSION AWARDS, PRESENTATIONS, AND APPOINTMENTS None. CITY MANAGER COMMENTS MAYOR/COUNCILMEMBER REPORTS AND REQUESTS FOR ACTION NON-AGENDA PUBLIC COMMENTS This is an opportunity for the public to speak on issues that are not on the agenda for up to three minutes. Speakers may utilize one of the three options listed on the back page of this agenda. Because the Brown Act does not allow the City Council, Successor Agency, and Housing Authority Boards to take action on items not on the Agenda, members may briefly respond or instead refer the matter to staff for report and recommendation at a future City Council, Successor Agency, or Housing Authority Meeting. CONSENT CALENDAR All matters listed on the Consent Calendar are considered to be routine and may be approved by one (1) Minute Motion. 1. MINUTES of the regular City Council, Successor Agency, and Housing Authority Meeting of March 24, 2022 (CC) (SA) (HA) ................................................. Page 9 Rec.: Approve as presented. 2. APPROVE CLAIMS AND DEMANDS WARRANTS: City: 3/11/2022, 3/16/2022, 3/25/2022, 3/30/2022, 4/1/2022, 4/7/2022, 4/8/2022, 4/14/2022 (CC); City and Housing: 4/7/2022, 4/14/2022 (CC) (HA); Successor Agency: 4/1/2022, 4/15/2022 (SA) ........................................................................................................... Page 19 Rec.: Receive and file. Page 3 AGENDA APRIL 28, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Agenda Page 4 3. RESOLUTION adopting Action Minutes as the official format of the City of Palm Desert (CC) ............................................................................................... Page 79 Rec.: Waive further reading and adopt. 4. AWARD Contract in the amount of $29,745.69 to Kimley-Horn and Associates, Inc. of Indian Wells, California, for Professional Engineering and Design Services for the Highway Safety Improvement Program, Cycle 10, High Visibility Crosswalk Improvements (Project No. 600-21) (CC) .................................................. Page 85 Rec.: By Minute Motion: 1. Award Contract in the amount of $29,745.69 to Kimley-Horn and Associates, Inc. of Indian Wells, California, for professional engineering and design services for the Highway Safety Improvement Program (HSIP) Cycle 10, High Visibility Crosswalk Improvements; and 2. Authorize the City Manager to execute the contract. 5. APPROVE an amendment to Contract No. HA38930 with Curtis Allan Floorcovering, Inc., for purposes of procuring floor coverings and related supplies and services with Engineered Floors, LLC (dba J+J Flooring Group and dba EF Contract), at the Palm Desert Housing Authority properties in an annual amount not to exceed $250,000. (HA) ............................................................................ Page 135 Rec.: By Minute Motion, that the Authority Board: 1. Approve Amendment No. 1 (“Amendment”) to Contract No. HA38930 with Curtis Allan Floorcovering, Inc., (“Curtis Allan”) for purposes of procuring floor coverings and related supplies and services (includes costs for non-warrantee partial replacements and repairs) (“Contract” or “Agreement”, interchangeable), effective July 1, 2022, at the Palm Desert Housing Authority (“Authority”) properties for a two-year term under the National Cooperative Purchasing Alliance Agreement, Flooring & Outdoor Surfaces Solutions Contract No. 02-60, with Engineered Floors, LLC (dba J+J Flooring Group and dba EF Contract) pursuant to Section 3.30.160 (L) and 3.30.160 (E) of the City of Palm Desert Municipal Code in a total amount not to exceed $250,000 each year; 2. Authorize Staff and RPM Company (“RPM”), the Authority’s contracted management company, to procure the services as determined to be necessary and assign any additional non-warrantee partial replacements and repairs due to emergency actions and/or proactively responding to issues at the Authority properties (“Properties”), including expenditures; and 3. Authorize the Chairman and/or the Executive Director to execute the Amendment and any documents necessary to effectuate and implement the actions taken herewith. Page 4 AGENDA APRIL 28, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Agenda Page 5 6. APPROVE San Pablo Public Art Development Plan (CC) ....................... Page 145 Rec.: By Minute motion, approve the San Pablo Public Art Development Plan. 7. DEACCESSION Desert Flower and Desert Star sculptures (CC) ............ Page 159 Rec.: By Minute Motion, deaccession Desert Flower and Desert Star sculptures. 8. APPROVE out-of-state travel for the City Manager, Finance Director, and Director of Economic Development, to visit with staff from the City of Westminster, Colorado on May 17, 2022 (CC) .............................................................. Page 187 Rec.: By Minute Motion, approve out-of-state travel to Westminster, Colorado, for the City Manager, Finance Director, and Director of Economic Development. CONSENT ITEMS HELD OVER ACTION CALENDAR 9. ORDINANCE amending and updating various sections of the Palm Desert Municipal Code (CC) ............................................................................... Page 189 Rec.: Introduce, by title only, an Ordinance entitled: An Ordinance of the City Council of the City of Palm Desert, California, Amending and Updating Various Sections of the Palm Desert Municipal Code. 10. RESOLUTION rescinding Resolution No. 2019-77, and adopting a revised Community Event Sponsorship Policy (CC) ............................................ Page 219 Rec: Waive further reading and adopt. 11. AWARD Contract in the amount of $433,132.50 to Engineering Resources of Southern California, Inc. of Redlands, California, for Professional Engineering and Design Services for the Haystack Channel Improvements (Project No. 509-22) (CC) ......................................................................................................... Page 243 Rec.: By Minute Motion: 1. Award Contract in the amount of $433,132.50 to Engineering Resources of Southern California, Inc. of Redlands, California, for professional engineering and design services for the Haystack Channel Improvements; 2. Appropriate $500,000 from unobligated Fund 420 to the project account; 3. Authorize the City Manager or designee to review and approve written contract amendment requests for unanticipated conditions per Section 3.30.170 of the Palm Desert Municipal Code; and 4. Authorize the City Manager to execute the contract. Page 5 AGENDA APRIL 28, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Agenda Page 6 12. APPROVE Amendment No. 1 (Contract No. C38851) to Contract No. C38850 for Arboricultural Services with West Coast Arborists, Inc. of Grand Terrace, California, in an annual amount not to exceed $975,000 (Project No. 933-23), and approval of Change Order No. 1 to C38850 for additional services during FY21/22 in the amount of $100,000 (Project No. 933-19) (CC) ........................................................... Page 301 Rec.: By Minute Motion: 1. Approve the Amendment (“Amendment”) to Contract No. C38850 with West Coast Arborists, Inc. of Grand Terrace, California, for Arboricultural Services for City of Palm Desert (“City”), Desert Willow Golf Resort (“Desert Willow”) and Palm Desert Housing Authority (“Authority”), effective July 1, 2022, for a two-year term in an annual amount not to exceed $975,000; 2. Approve Change Order No. 1 to Contract No. C38850 for additional tree pruning services during FY21/22 in the amount of $100,000; 3. Authorize staff to assign additional services/extra work as determined to be necessary due to emergency work to mitigate hazardous conditions and proactively respond to unforeseen issues; and 4. Authorize the Mayor and/or Executive Director to execute the Amendment Agreement. 13. APPROPRIATE additional funds in the amount of $340,000 for construction contingency and Approve Amendment No. 2 to Contract No. C37040B with Southstar Engineering of Riverside, California in an amount not to exceed $300,000 for additional construction management and inspection services related to Presidents’ Plaza East and West Parking Lot Improvements (Project No. 758-14) (CC) ......................................................................................................... Page 317 Rec.: By Minute Motion, that the City Council: 1. Approve additional contingency funds in the amount of $340,000 to Contract No. C37040A with H&H General Contractors Inc. of Highland, California; 2. Approve Amendment No. 2 to Contract No. C37040B with Southstar Engineering and Consulting of Riverside, California, for additional construction management and inspection services in an amount not to exceed $300,000; 3. Appropriate $640,000 from Unobligated General Funds to Account No. 4004692-4400100; and 4. Authorize the City Manager or designee to execute the amendment and to review and approve written requests for the use of the contingency for unforeseen conditions up to the contingency amount. Page 6 AGENDA APRIL 28, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Agenda Page 7 14. REQUEST FOR FEEDBACK AND DIRECTION on the development of a Facilities and Park Use Policy and amendments to Title 11, Parks, of the Palm Desert Municipal Code (CC) .............................................................................. Page 329 Rec.: By Minute Motion, that the City Council direct staff to initiate an amendment to Title 11 of the Palm Desert Municipal Code and to prepare an administrative policy on the administration of the permitting process for park use permits together with any necessary fee resolutions. Additionally, staff requests City Council feedback on the scope of any changes to the Palm Desert Municipal Code. 15. REQUEST FOR FEEDBACK AND DIRECTION on changes to the Local Meeting and Local Event Reimbursement Policy (CC) ........................................... Page 335 Rec.: Provide feedback and direction to staff relative to proposed changes to the Local Meeting and Local Event Reimbursement Policy. 16. REQUEST FOR FEEDBACK AND DIRECTION on the priorities for the disposition of Successor Agency and City properties listed on the Central Inventory of surplus land and land in excess of Palm Desert’s foreseeable need (CC) (SA) ... Page 365 Rec.: Provide direction to staff on the priorities for disposition of Successor Agency to the Palm Desert Redevelopment Agency (SARDA) and City of Palm Desert (City) properties listed on the Central Inventory of surplus land and land in excess of Palm Desert’s foreseeable need. PUBLIC HEARING 17. ORDINANCE No. 1378 to approve Zoning Ordinance Amendment 22-0001 to modify Palm Desert Municipal Code Section 25.34.060 regarding Time-Share Projects. (Continued from March 24, 2022) (1st reading) (CC) ............................... Page 373 Rec.: Waive further reading and pass to second reading an ordinance approving Zoning Ordinance Amendment 22-0001 to modify Palm Desert Municipal Code Section 25.34.060 regarding Time-Share Projects. ADJOURNMENT Page 7 AGENDA APRIL 28, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Agenda Page 8 THREE OPTIONS FOR PARTICIPATING IN THE MEETING Option 1 - To Participate by E-mail: 1. Send your comments by email to: CouncilMeetingComments@cityofpalmdesert.org E-mails received by 12:00 noon prior to the start of the meeting will be made part of the record and distributed to the City Council. This method is encouraged because it will give Councilmembers the opportunity to reflect upon your input. Emails will not be read aloud. Option 2 - To Participate and Provide Verbal Comments by Using Your Internet: 1. Access via https://www.cityofpalmdesert.org/zoom and click “Launch Meeting” or 2. Access www.zoom.us, click “Join Meeting” and enter Webinar ID 833 6744 9572 Option 3 - To Listen and Provide Verbal Comments Using Your Telephone: 1. Dial any of the following based on your location: (669) 900-9128 or (213) 338-8477 or (669) 219-2599 or (971) 247-1195 or (253) 215-8782. If there are high volumes of calls, please continue dialing until you connect successfully. 2. Enter the Meeting ID: 833 6744 9572 followed by #. 3. Indicate that you are a participant by pressing # to continue. 4. You will hear audio of the meeting in progress. Remain on the line if the meeting has not yet started. 5. During the meeting, Press *9 to add yourself to the queue and wait for City Clerk staff to announce your name/phone number. The City Clerk will unmute your line when it is your turn to speak. Limit your comments to three (3) minutes. Staff reports for all agenda items considered in open session, and documents provided to a majority of the legislative bodies regarding any item on this agenda, are available for public inspection at City Hall and on the City’s website at https://www.cityofpalmdesert.org by clicking “Council Agenda” at the top of the page. Declaration of Posting: I, Anthony J. Mejia, City Clerk of the City of Palm Desert, do hereby certify, under penalty of perjury under the laws of the State of California, that the foregoing agenda for the Palm Desert City Council, Successor Agency for the Palm Desert Redevelopment Agency, and Housing Authority, was posted on the City Hall bulletin board no less than 72 hours prior to the meeting. Dated this 21st day of April 2022. Note: This agenda is subject to amendment up to 72 hours in advance of the meeting. _ Anthony J. Mejia, MMC, City Clerk Page 8 CITY OF PALM DESERT REGULAR PALM DESERT CITY COUNCIL (CC), SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY (SA), AND HOUSING AUTHORITY (HA) MEETING (VIRTUAL MEETING) DRAFT MINUTES Thursday, March 24, 2022 CALL TO ORDER – 3:00 P.M. The meeting was called to order at 3:00 p.m. ROLL CALL Present: Mayor Pro Tem/Vice Chair/Vice Chairman Sabby Jonathan Councilmember/Director/Member Kathleen Kelly Councilmember/Director/Member Gina Nestande Councilmember/Director/Member Karina Quintanilla Mayor/Chair/Chairman Jan C. Harnik Also Present: Todd Hileman, City Manager/Executive Director Robert W. Hargreaves, City Attorney Andrew Firestine, Assistant City Manager Veronica Chavez, Director of Finance Anthony J. Mejia, City Clerk Niamh M. Ortega, Deputy City Clerk PUBLIC COMMENT FOR CLOSED SESSION ITEMS ONLY None. ADJOURN TO CLOSED SESSION The meeting was adjourned to closed session at 3:01 p.m. A. Closed Session Meeting Minutes: March 10, 2022 Page 9 DRAFT MINUTES – For discussion purposes only MARCH 24, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Draft Minutes Page 2 B. Conference with Real Property Negotiator pursuant to Government Code Section 54956.8: 1) (City) Property: 72-880 Highway 111, Palm Desert (APN 640-120-020) City Negotiator: Todd Hileman/Martin Alvarez Other Party Negotiator: Seritage SRC Finance Property Owner: Seritage SRC Finance 2) (City) Property: 45653 Portola Avenue, Palm Desert (APN 627-351-010) City Negotiator: Todd Hileman/Andy Firestine/Martin Alvarez Other Party Negotiator: Not applicable Property Owner: City of Palm Desert 3) (City) Property: Consideration of a lease between Lift to Rise and the City of Palm Desert at the Parkview Office Complex (73-710 Fred Waring Drive, Suite No. 219, Palm Desert) City Negotiator: Todd Hileman/Veronica Chavez/Stephen Aryan Other Party Negotiator: Lift to Rise Property Owner: City of Palm Desert 4) (City) Property: 73000 Fred Waring Drive, Palm Desert (APN 622-160-034-2, 622-160-038-6, and 009-613-026-1) City Negotiator: Todd Hileman Other Party Negotiator: Friends of the Cultural Center, Inc., and McCallum Theatre Foundation, Inc. Under Negotiation: Rental payment and terms of rental payment C. Conference with Legal Counsel regarding significant exposure to litigation pursuant to Government Code Section 54956.9(d)(2): 1) Potential cases: Two (2) RECONVENE THE CITY COUNCIL, SUCCESSOR AGENCY, AND HOUSING AUTHORITY MEETING Mayor Harnik reconvened the regular meeting at 4:10 p.m. a) Roll Call b) Pledge of Allegiance to the Flag – Councilmember Gina Nestande Page 10 DRAFT MINUTES – For discussion purposes only MARCH 24, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Draft Minutes Page 3 c) Inspiration/Invocation – Mayor Pro Tem Sabby Jonathan REPORT ON ACTION FROM CLOSED SESSION Attorney Hargreaves reported that relative Item B3, Lift to Rise, the City Council unanimously approved the lease subject to certain conditions. The lease will be available for public viewing once it has been finalized. There were no other actions to report. AWARDS, PRESENTATIONS, AND APPOINTMENTS 1. Presentation of a Proclamation declaring April 2022 as “DMV/Donate Life Month” in the City of Palm Desert (CC) Ms. Cheryl Macham accepted the proclamation and indicated it would hang in the Department of Motor Vehicles office in Palm Desert as a reminder to the public to sign up to be an organ, eye and tissue donor. CITY MANAGER COMMENTS City Manager Hileman introduced Public Affairs Manager Thomas Soule to provide an update on various events taking place in Palm Desert. Events included Walk MS and the Autism Walk and Resource Fair at the Civic Center Park, the State of the City and Senior Inspiration Awards, the wrap-up of Fashion Week El Paseo, and Palm Desert Food & Wine Festival. He also noted the Living Desert had an ongoing “Glow in the Park” event, and El Paseo Cruise Night was also scheduled for the month of April. MAYOR/COUNCILMEMBER REPORTS AND REQUESTS FOR ACTION Mayor Pro Tem Jonathan reported on a recent meeting with stakeholders relative to the North Sphere park. He also shared a presentation from Desert Community Energy regarding ways to save with a Time-of-Use plan. Mayor Harnik reported that Councilmember Kelly and her mother, Ms. Mary Helen Kelly, were recently honored as Rotary Club’s co-Citizens of the Year. NON-AGENDA PUBLIC COMMENTS None. CONSENT CALENDAR All matters listed on the Consent Calendar are considered to be routine and may be approved by one (1) Minute Motion. Page 11 DRAFT MINUTES – For discussion purposes only MARCH 24, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Draft Minutes Page 4 2. MINUTES of the regular City Council, Successor Agency, and Housing Authority Meeting of February 24, 2022 (CC) (SA) (HA) Rec.: Approve as presented. 3. APPROVE CLAIMS AND DEMANDS WARRANTS: City: 3/4/2022 (CC) Rec.: Receive and file. 4. ORDINANCE No. 1379 to revise Chapter 11.01.080 (Parks, Prohibited conduct generally) of the Palm Desert Municipal Code relating to the improper feeding of wild or domestic birds (2nd reading) (CC) Rec.: Waive further reading and adopt. 5. ORDINANCE No. 1380 to adopt the redrawing of Council Member District Boundaries (2nd reading) (CC) Rec.: Waive further reading and adopt. 6. RESOLUTION No. 2022-22 authorizing the destruction of paper records that have been digitally imaged from the Development Services Department (Planning/Land Development Division), to rely on the electronic record as the official record (CC) Rec.: Waive further reading and adopt. 7. APPROVE an Agreement with Southern California Edison (SCE) to Retrofit SCE streetlights to LED (C42890) (CC) This item was removed for separate consideration. 8. APPROVE Palm Desert’s 2022 Independence Day Celebration (C42900A, C42900B) (CC) Rec.: By Minute Motion: 1. Preapprove and authorize expenditures in an amount not to exceed $75,000 ($46,000 to Pyro Spectaculars, Inc. and $29,000 to ancillary vendors) from the FY 2022/23 Budget for production of the 2022 Independence Day Celebration event; 2. Authorize City Manager to execute a one-year extension of Contract No. C37020A with Pyro Spectaculars, Inc., in the amount of $46,000 for the fireworks display; and 3. Authorize City Manager to execute any ancillary vendor contracts associated with production of celebration in an amount not to exceed $29,000. Page 12 DRAFT MINUTES – For discussion purposes only MARCH 24, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Draft Minutes Page 5 9. APPROVE an Amendment to Contract No. HA38270 with Liberty Landscaping, Inc., for landscape maintenance services at the Palm Desert Housing Authority properties for a two-year term in an annual amount not to exceed $348,553 (HA) Rec.: By Minute Motion, that the Authority Board, 1. Approve an Amendment (“Amendment”) to Contract No. HA38270 with Liberty Landscaping, Inc., for Landscape Maintenance Services, Landscape Maintenance Area No. 3, Project No. 903-20 (“Agreement”), effective July 1, 2022, for the Housing Authority owned properties (“Properties”) for a two-year term in an amount not to exceed $348,553 annually; 2. Authorize Staff and RPM Company, the Authority’s contracted management company, to assign additional services as determined to be necessary due to emergency actions and/or proactively responding to issues at the Authority properties; including expenditures, in an annual amount not to exceed $88,000 for such additional services; and 3. Authorize the Chairman and/or the Executive Director to execute the Amendment and any documents necessary to effectuate and implement the actions taken herewith. 10. APPROVE a one-year extension of Contract No. C41450 with Hinderliter De Llamas and Associates (HDL) to continue providing Business Licensing Administration on behalf of the City (CC) Rec.: By Minute motion, extend Contract No. C41450 with HDL for City business licensing administration. 11. APPROPRIATE $63,433.55 from unobligated general fund reserves and ratify the City Manager’s approval to purchase Arctic Wolf security services from Vector USA (CC) Rec.: By Minute Motion that the City Council: 1. Ratify the City Manager’s approval to purchase Arctic Wolf security services from Vector USA, and 2. Appropriate $63,433.55 from unobligated general fund reserves to Account Number 1104190-4336000. Page 13 DRAFT MINUTES – For discussion purposes only MARCH 24, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Draft Minutes Page 6 12. APPROVE a Central Inventory of surplus land and land in excess of foreseeable need pursuant to Government Code Section 54230(a)(1) in connection with properties owned by the City of Palm Desert, Successor Agency to the Palm Desert Redevelopment Agency, and Palm Desert Housing Authority and direct the reporting of information regarding such properties to the California Department of Housing and Community Development pursuant to Government Code 54230(a)(2) (CC) Rec.: By Minute Motion, that the City Council: 1. Approve the “Central Inventory” of surplus land and land in excess of foreseeable need in connection with properties owned by the City of Palm Desert, Successor Agency to the Palm Desert Redevelopment Agency, and Palm Desert Housing Authority, as outlined in the staff report, pursuant to Government Code Section 54230(a)(1); and 2. Authorize staff to report to the California State Department of Housing and Community Development (“HCD”) information about such properties pursuant to Government Code 54230(a)(2). 13. RECEIVE AND FILE the resignation of Parks and Recreation Commissioner Mike Hardin (CC) Rec.: Receive and file with sincere regret. Main Motion: Approve all items on the consent calendar with the exception of Item 7, considered separately. Moved by: Quintanilla/Nestande Vote and Action: 5 Yes/0 No. Motion Carried CONSENT ITEMS HELD OVER 7. APPROVE an Agreement with Southern California Edison (SCE) to Retrofit SCE streetlights to LED (CC) Main Motion: 1. Authorize the City Manager to execute an Agreement with Southern California Edison to retrofit SCE streetlights under the LS-1 Option E Program; 2. Direct that the Municipal Code Chapter 24.16 Outdoor Lighting Requirements be amended (along with annual ordinance updates) to recognize 4000 Kelvin color temperature as the City’s standard for all streetlights; and 3. Authorize staff to secure a streetlighting consultant to geo-locate all City-owned LS-2/LS-3 streetlight locations and develop photometric requirements prior to retrofitting any outstanding streetlight fixtures to LED for an amount not to exceed $15,000. Moved by: Quintanilla/Nestande Vote and Action: 5 Yes/0 No. Motion Carried Page 14 DRAFT MINUTES – For discussion purposes only MARCH 24, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Draft Minutes Page 7 ACTION CALENDAR 14. RESOLUTION and ORDINANCE: Resolution No. 2022-23 to approve Recovered Organic Waste Procurement Policy and Ordinance No. 1379 to amend Chapter 3.30 to include the Recovered Organic Waste Product Procurement Policy (1st reading) (CC) Main Motion: 1. Waive further reading and adopt Resolution No. 2022-23 approving the Recovered Organic Waste Product Procurement Policy; and 2. Waive further reading and pass Ordinance No. 1379 to second reading. Moved by: Kelly/Nestande Vote and Action: 5 Yes/0 No. Motion Carried 15. RESOLUTION No. 2022-24 to approve actions in connection with the parcel identified as APN 694-120-028 and a portion of 694-120-029 related to compliance with the Surplus Land Act and an Exclusive Negotiation Agreement with Palm Communities (CC) Main Motion: Waive further reading and adopt a resolution: 1. Declaring the 0.49-acre City-owned property located on the north side of Gerald Ford Drive between Cook Street and Portola Road and identified as a portion of APN 694-120-029 (the “Additional Parcel”) as “exempt surplus land” pursuant to Government Code Section 54221(f)(1)(A); 2. Authorizing the City Manager or his designee, with the consent of the City Attorney, to enter into a new Exclusive Negotiation Agreement (“ENA”) with Palm Communities for the purpose of negotiating the terms and conditions of an agreement for the sale of the City-owned property located on the north side of Gerald Ford Drive between Cook Street and Portola Avenue and identified as APN 694-120-028 to Palm Communities and the construction of a housing development on the Property and Additional Parcel that complies with Government Code Section 37364; and 3. Authorizing the staff and officers of the City to take such actions as they deem necessary or proper to effectuate the purposes of the Resolution. Moved by: Kelly/Nestande Vote and Action: 5 Yes/0 No. Motion Carried Page 15 DRAFT MINUTES – For discussion purposes only MARCH 24, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Draft Minutes Page 8 16. REQUEST for feedback and direction on the consideration of a Council-initiated five district ballot measure for the 2022 ballot (CC) Ms. Joan Speer, Palm Desert resident, spoke in favor of five districts. Main Motion: Direct staff to take no further action on this item. Moved by: Jonathan/Nestande Vote and Action: 2 Yes/3 No (Harnik, Kelly, Quintanilla). Motion Failed. Main Motion: 1. Appoint Councilmember Kelly and Councilmember Nestande to an ad hoc subcommittee to work with staff related to a potential ballot measure on districting; and 2. Direct staff to solicit proposals for an educational campaign related to the proposed ballot mesure for City Council consideration. Moved by: Harnik/Kelly Vote and Action: 3 Yes/2 No (Jonathan, Nestande). Motion Carried. 17. AWARD Contract to American Asphalt South, Inc. of Riverside, California, for the 2021 Slurry Seal Project (Project No. 751-21) (Contract No. 42450) (CC) Main Motion: 1. Award Contract No. C42450 in the amount of $2,235,235 to American Asphalt South, Inc., of Riverside, California, for the 2021 Slurry Seal Project; 2. Authorize the Director of Finance to set aside a 10% contingency in the amount of $223,524; 3. Authorize the City Manager or designee to review and approve written requests for the use of contingency for unanticipated conditions, per Section 3.30.170 Section A of Ordinance No. 1335; and 4. Authorize the City Manager to execute the Agreement. Moved by: Nestande/Kelly Vote and Action: 5 Yes/0 No. Motion Carried. 18. CONSIDERATION to require that a Specific Plan be prepared for the Palm Desert mall site. (CC) Main Motion: Require that a Specific Plan be prepared for the Palm Desert Mall located at 72840 Highway 111, Palm Desert. Moved by: Jonathan/Kelly Vote and Action: 5 Yes/0 No. Motion Carried. Page 16 DRAFT MINUTES – For discussion purposes only MARCH 24, 2022 City Council, Successor Agency to the Palm Desert Redevelopment Agency, and Housing Authority Meeting Draft Minutes Page 9 PUBLIC HEARING 19. ORDINANCE No. 1378 to approve Zoning Ordinance Amendment 22-0001 to modify Palm Desert Municipal Code Section 25.34.060 regarding Time-Share Projects. (Continued from February 24, 2022) (CC) Staff requested this item be continued to the meeting of April 28, 2022. Mayor Harnik opened the public hearing. There were no public comments, and the hearing was continued. Main Motion: Continue Public Hearing to the meeting of April 28, 2022. Moved by: Kelly/Jonathan Vote and Action: 5 Yes/0 No. Motion Carried. ADJOURNMENT With City Council, Successor Agency, and Housing Authority concurrence, Mayor Harnik adjourned the meeting at 5:50 p.m. JAN C. HARNIK MAYOR/CHAIR/CHAIRMAN ATTEST: NÍAMH M. ORTEGA, DEPUTY CITY CLERK AND SECRETARY Palm Desert City Council Successor Agency to the Palm Desert Redevelopment Agency Housing Authority Page 17 [This page has intentionally been left blank.] Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Page 46 Page 47 Page 48 Page 49 Page 50 Page 51 Page 52 Page 53 Page 54 Page 55 Page 56 Page 57 Page 58 Page 59 Page 60 Page 61 Page 62 Page 63 Page 64 Page 65 Page 66 Page 67 Page 68 Page 69 Page 70 Page 71 Page 72 Page 73 Page 74 Page 75 Page 76 Page 77 [This page has intentionally been left blank.] Page 78 STAFF REPORT CITY OF PALM DESERT MEETING DATE: April 28, 2022 PREPARED BY: Anthony J. Mejia, City Clerk REQUEST: Consideration of a Resolution Adopting Action Minutes as the Official Format of the City of Palm Desert Recommendation Adopt Resolution adopting action minutes as the official format of the City of Palm Desert. Background On August 27, 2020, the City Council discussed and directed staff to prepare a resolution memorializing the transition from summary minutes to action minutes for City Council and its bodies (Successor Agency, Housing Authority, etc.) subject to the following conditions: • The names of public commenters must be recorded in the minutes; • Allow permissible questions and answers by the City Council and staff to be recorded in the minutes; • Audio or video recordings of the meeting must be retained in perpetuity; and • Revisit the change to action minutes in six months. In addition, on November 19, 2020, the City Council approved in concept the transition of Commission and Committee meetings to action minutes. City staff seeks the City Council’s feedback on the transition to action minutes and requests that the City Council adopt the proposed resolution memorializing the use of action minutes as the official format of the City of Palm Desert. Financial Impact The use of action minutes is estimated to be 80% more time-efficient than summary minutes. The transition to action minutes has enabled staff to redistribute its time to more critical functions and priorities. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER Robert Hargreaves Robert W. Hargreaves City Attorney Anthony Mejia Anthony J. Mejia City Clerk Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager, L. Todd Hileman: L. Todd Hileman Attachments: 1. Minutes Excerpt 2. Draft Resolution Page 79 CITY OF PALM DESERT 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346-0611 FAX: 760-341-7098 ACTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA Council Meeting Date: August 27, 2020 Councilmembers Present: Councilmembers Jan Harnik, Sabby Jonathan, Susan Marie Weber, Mayor Pro Tem Kathleen Kelly, and Mayor Gina Nestande. Councilmembers Absent: None. Agenda Item No. New Business Item No. 14F REQUEST TO DISCUSS AND PROVIDE DIRECTION REGARDING THE PROPOSED USE OF ACTION MINUTES FOR PUBLIC MEETINGS. City Council directed staff to prepare a Resolution memorializing the change from producing summary format minutes to action-type minutes with the following conditions: 1) the new format to provide the names of the speakers under Oral Communication; 2) allow permissible questions and answers by Council and staff to be included in the minutes; 3) revisit the change in six months; 4) retain audio and visual recordings of the meetings in perpetuity; 5) allow the City Clerk to make the change starting with the current meeting. MOTION BY MAYOR PRO TEM KELLY, SECOND BY COUNCILMEMBER WEBER, CARRIED 5-0. STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) SS. CITY OF PALM DESERT ) I, ANTHONY J. MEJIA, City Clerk of the City of Palm Desert, California, do hereby certify the foregoing to be the official action taken by the City Council at the above meeting. IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of April 2022. ______________________________________ Anthony J. Mejia, City Clerk City of Palm Desert, California Page 80 CITY OF PALM DESERT 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346-0611 FAX: 760-341-7098 ACTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA Council Meeting Date: November 19, 2020 Councilmembers Present: Councilmembers Jan Harnik, Sabby Jonathan, Susan Marie Weber, Mayor Pro Tem Kathleen Kelly, and Mayor Gina Nestande. Councilmembers Absent: None. Agenda Item No. Action Calendar Item No. 16 APPROVE IN CONCEPT THE RECOMMENDATIONS TO THE CITY’S COMMITTEE AND COMMISSIONS. City Council approved the concept and recommendations as listed in the staff report with further exploration and consideration of items 2, 3, 4, 5, 14, and 15, including looking into expanding the Art in Public Places Committee role to include children’s art, sidewalk art, etc. Also, ensure current Committee and Commission members are notified that their term will be extended to June 30, 2021. MOTION BY COUNCILMEMBER HARNIK, SECOND BY COUNCILMEMBER WEBER, CARRIED 5-0. STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) SS. CITY OF PALM DESERT ) I, ANTHONY J. MEJIA, City Clerk of the City of Palm Desert, California, do hereby certify the foregoing to be the official action taken by the City Council at the above meeting. IN WITNESS WHEREOF, I have hereunto set my hand this 12th day of April 2022. ______________________________________ Anthony J. Mejia, City Clerk City of Palm Desert, California Page 81 RESOLUTION NO. 2022- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, ADOPTING ACTION MINUTES AS THE OFFICIAL FORMAT OF THE CITY OF PALM DESERT WHEREAS, the City Clerks Association of California recommends that local agencies transition to action minutes, noting that they are time-efficient, succinct, cost-effective, and more appropriately aligned with the intent of applicable government codes for meeting minutes; and WHEREAS, on August 27, 2020, the City Council discussed and authorized staff to transition from summary minutes to action minutes for City Council, Successor Agency, and Housing Authority meetings; and WHEREAS, on November 19, 2020, the City Council approved in concept the use of action minutes for Commission and Committee meetings. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert as follows: SECTION 1. Adopt the use of action minutes as the official format of the City of Palm Desert, subject to the following conditions: 1. The names of public commenters must be recorded in the minutes. 2. Allow permissible questions and answers by the governing body and staff to be recorded in the minutes. 3. The meeting audio or video recordings must be retained in perpetuity. SECTION 2. Certification. The City Clerk shall certify the adoption of this Resolution. Page 82 RESOLUTION NO. 2022- PASSED, APPROVED AND ADOPTED this __ day of April, 2022, by the following votes: AYES: NOES: ABSENT: _____________________________ JAN C. HARNIK, MAYOR ATTEST: _____________________________ ANTHONY J. MEJIA, MMC CITY CLERK Page 83 [This page has intentionally been left blank.] Page 84 CONTRACT NO. __________ STAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: April 28, 2022 PREPARED BY: Audrey Nickerson, Project Manager REQUEST: Award Contract No. ______ in the amount of $29,745.69 to Kimley- Horn and Associates, Inc. of Indian Wells, California, for Professional Engineering and Design Services for the Highway Safety Improvement Program, Cycle 10, High Visibility Crosswalk Improvements (Project No. 600-21) ___________________________________________________________________________ Recommendation By Minute Motion: 1. Award Contract No. ______ in the amount of $29,745.69 to Kimley-Horn and Associates, Inc. of Indian Wells, California, for professional engineering and design services for the Highway Safety Improvement Program (HSIP) Cycle 10, High Visibility Crosswalk Improvements; 2. Authorize the City Manager to execute the contract. Funds are available in Measure A Fund Account No. 2134317-5000908, Roadway Safety Improvements. Strategic Plan Implementation of State-funded transportation projects enable the City to advance the following priorities identified in the City’s Strategic Plan, without exhausting local funds: • Transportation Mini-Vision: By 2033, each resident and visitor will have safe, convenient, and efficient transportation options; and • Transportation Priority 1: Create walkable neighborhoods and areas within Palm Desert that would include residential, retail, services and employment centers, and parks, recreation, and open space to reduce the use of low occupancy vehicles. Page 85 CONTRACT NO. __________ April 28, 2022 - Staff Report Award Design Contract for HSIP Cycle 10 High Visibility Crosswalk Improvements (Project No. 600-21) Page 2 of 3 Background Analysis On May 5, 2020, the California Department of Transportation (“Caltrans”) released a call for projects to be funded through "Cycle 10" of the HSIP program. Staff evaluated the most recent five years of collision data, collected during preparation of the City’s Local Roadways Safety Plan, to identify pedestrian safety as an emphasis area for improvements. On September 29, 2020, staff submitted two HSIP grant applications to Caltrans. On March 26, 2021, the City received notification that both grant applications were awarded 100 percent HSIP funding in the amount of $2,159,800 (no local match required). The subject of this staff report is the High Visibility Crosswalk Improvements Project with approved total HSIP funding of $247,200 for design and construction. The High Visibility Crosswalk Improvements Project includes installation of high visibility crosswalks at thirteen (13) signalized intersections near activity centers within the City. The City has conducted the consultant selection process pursuant to requirements set forth in Chapter 10 of the Caltrans Local Assistance Procedures Manual. A Request for Proposals (RFP) for professional engineering and design services was appropriately advertised, and on February 25, 2022, three (3) proposals were received: Consultant Location Kimley-Horn Indian Wells, CA TJKM Transportation Consultants Pleasanton, CA Minegar & Associates, Inc. Laguna Hills, CA The internal selection committee, comprised of representatives from Public Works, met on March 17, 2022, and reviewed the qualifications, experience, and key personnel. Staff determined that Kimley-Horn and Associates, Inc. (Kimley-Horn) is the most qualified consultant to perform the services requested in the project, based on: • Extensive knowledge of City’s transportation network • Similar relevant project experience • Project team professional qualifications • Understanding of Caltrans Local Assistance procedures Once the most qualified consultant was determined, the City requested a cost proposal, including all required Caltrans forms. The committee recommends awarding the contract to Kimley-Horn in the amount of $29,745.69. Fiscal Analysis The project is funded with HSIP state-only monies. The environmental and engineering design (Preliminary Engineering) phase of the Project has been programmed with $30,000 of HSIP State-only funds; therefore, sufficient funds are available to approve the proposed professional services agreement with Kimley-Horn in the amount of $29,745.69. The entire Page 86 CONTRACT NO. __________ April 28, 2022 - Staff Report Award Design Contract for HSIP Cycle 10 High Visibility Crosswalk Improvements (Project No. 600-21) Page 3 of 3 contract amount is funded 100% with State-only HSIP funds, so no local match will be required for this project. The approved Capital Improvement Project (CIP) List for Fiscal Year 2021-22 includes a total of $2,213,000 in Measure A Funds for roadway safety improvements. Monthly invoices will be paid via Account No. 2134317-5000908 and submitted to Caltrans for 100% reimbursement. Therefore, there is not fiscal impact to the general fund. The 2-Year funding breakdown for the project is as follows: Project Funding Source Fiscal Year Description Budget for this Project Actual Costs to Date* Roadway Safety Improvements Measure A FY21/22 Design $550,000 $29,745.69 FY22/23 Construction $1,663,000 Totals $2,213,000 $29,745.69 * Bolded amount is the subject of this request. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Robert W. Hargreaves City Attorney Andy Firestine Andy Firestine Director of Public Works Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager, L. Todd Hileman: L. Todd Hileman CONSULTANT: Kimley-Horn and Associates, Inc. 45-025 Manitou Drive, Suite 11 Indian Wells, CA 92210 ATTACHMENT: 1) Agreement 2) Proposal 3) Vicinity Map Page 87 Exhibit “A” Contract No. ____________ CITY OF PALM DESERT PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 28th day of April, 2022, by and between the City of Palm Desert, a municipal corporation organized under the laws of the State of California with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260- 2578, County of Riverside, State of California (“City”) and Kimley-Horn and Associates, a NORTH CAROLINA CORPORATION, with its principal place of business at 45-025 MANITOU DRIVE, SUITE 11, INDIAN WELLS, CALIFORNIA 92210 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Project. The City is a public agency of the State of California and is in need of professional services for the following project: HSIP Cycle 10 – High Visibility Crosswalk Improvements (hereinafter referred to as “the Project”). 2.2 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant is duly licensed and has the necessary qualifications to provide such services. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from May 1, 2022, to December 31, 2023, unless earlier terminated as provided herein Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Page 88 Contract No. ____________ Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner in accordance with the Schedule of Services set forth in Exhibit "A" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Jean Fares, P.E., Project Manager/Senior Vice President. 3.2.5 City's Representative. The City hereby designates Audrey Nickerson, Project Manager, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the scope of services or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee. 3.2.6 Consultant's Representative. Consultant hereby designates Jean Fares, P.E., Project Manager/Senior Vice President, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the Page 89 Contract No. ____________ standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibit “A” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement. Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 3.2.10 Laws and Regulations; Employee/Labor Certification. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, and shall give Page 90 Contract No. ____________ all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause. 3.2.10.1 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. 3.2.10.2 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.2.10.3 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. 3.2.11 Insurance. 3.2.11.1 Minimum Requirements. Without limiting Consultant’s indemnification of City, and prior to commencement of the Services, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to City. (A) General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. (B) Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non- owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. The City’s Risk Manger may modify this requirement if it is determined that Consultant will not be utilizing a vehicle in the performance of his/her duties under this Agreement. (C) Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed Page 91 Contract No. ____________ in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. (D) Workers’ Compensation Insurance. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, its officers, agents, employees, volunteers and representatives. (E) Umbrella or Excess Liability Insurance. Consultant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions: (1) A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; (2) Pay on behalf of wording as opposed to reimbursement; (3) Concurrency of effective dates with primary policies; and (4) Policies shall “follow form” to the underlying primary policies. (5) Insureds under primary policies shall also be insureds under the umbrella or excess policies. (F) Fidelity Coverage. Reserved. (G) Cyber Liability Insurance. Reserved. If coverage is maintained on a claims-made basis, Consultant shall maintain such coverage for an additional period of three (3) years following termination of the Agreement. 3.2.11.2 Other Provisions or Requirements. (A) Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Page 92 Contract No. ____________ (B) Duration of Coverage. Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, his/her agents, representatives, employees or subconsultants. (C) Primary/Non-Contributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured. (D) City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may terminate this Agreement. (E) Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager. (F) Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City, its elected or appointed officers, agents, officials, employees, volunteers, and representatives or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its elected or appointed officers, agents, officials, employees, volunteers and representatives and shall require similar written express waivers and insurance clauses from each of its subconsultants. (G) Enforcement of Contract Provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. (H) Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Page 93 Contract No. ____________ (I) Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. (J) Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability and cyber liability, policies shall provide or be endorsed to provide that the City and its officers, officials, employees, agents, volunteers and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement, under such policies. This provision shall also apply to any excess/umbrella liability policies. (K) Prohibition of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (L) Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (M) Pass Through Clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party involved with the Project who is brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subconsultants, subcontractors, and others engaged in the Project will be submitted to City for review. (N) City’s Right to Revise Specifications. The City and the City’s Risk Manager reserve the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in additional cost to the Consultant, the City and Consultant may renegotiate Consultant’s compensation. If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice. (O) Self-Insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. (P) Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. (Q) Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Services. Page 94 Contract No. ____________ 3.2.12 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies of this Section. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. The total compensation shall not exceed Twenty Nine Thousand Seven Hundred Forty Five and 69/100 ($29,745.69) without written approval of the City Council or City Manager, as applicable. 3.3.2 Payment of Compensation. Consultant shall submit to City monthly invoices which provide a detailed description of the Services and hours rendered by Consultant. City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Consultant shall submit its final invoice to City within thirty (30) days from the last date of provided Services or termination of this Agreement and failure by the Consultant to submit a timely invoice may constitute a waiver of its right to final payment. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "B" of this Agreement. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City. 3.3.5 Cost Principles and Administrative Requirements. 3.3.5.1 The Consultant agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost. Page 95 Contract No. ____________ 3.3.5.2 The Consultant also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 3.3.5.3 Any costs for which payment has been made to the Consultant that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the Consultant to City. 3.3.6 Audit Review Procedures 3.3.6.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by Agreement, shall be reviewed by City’s Chief Financial Officer. 3.3.6.2 Not later than thirty (30) days after issuance of the final audit report, Consultant, may request a review by City’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. 3.3.6.3 Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. 3.3.6.4 Consultant and subconsultant Agreements, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an Agreement audit, and incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, Cost Proposal and ICR, and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review, it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed fully access to the CPA’s work papers including making copies as necessary. The Agreement, Cost Proposal, and ICR shall be adjusted by Consultant and approved by City to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state, or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement pursuant to Section 28 “Termination of Agreement” and disallowance of prior reimbursed costs. 3.3.6.5 Consultant’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the City to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement pursuant to Section 28 “Termination of Agreement” and disallowance of prior reimbursed costs. (i) During IOAI’s review of the ICR audit work papers created by the Consultant’s independent CPA, IOAI will work with the CPA and/or Consultant toward a resolution Page 96 Contract No. ____________ of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, City will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI. Accepted rates will be as follows: a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate. (ii) If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions. (iii) If the Consultant fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement. (iv) Consultant may submit to City final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and (3) IOAI has issued its final ICR review letter. The Consultant must submit its final invoice to City no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all other agreements executed between City and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR. 3.4 Labor Code Requirements. 3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or Page 97 Contract No. ____________ "maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, volunteers and representatives, free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of Services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, volunteers and representatives free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant. 3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5 Accounting Records. 3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.6 General Provisions. 3.6.1 Termination of Agreement. Page 98 Contract No. ____________ 3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement. 3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.6.1.3 Early Termination. Notwithstanding any provision herein to the contrary, if for any fiscal year of this Agreement the City Council fails to appropriate or allocate funds for future payment under the Agreement after exercising reasonable efforts to do so, the City may upon seven (7) days’ written notice, order work on the Project to cease. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. 3.6.1.4 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: Kimley-Horn and Associates, Inc. 45-025 Manitou Drive, Suite 11 Indian Wells, CA 92210 ATTN: Jean Fares, P.E., Project Manager/Senior Vice President City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 ATTN: Audrey Nickerson, Project Manager Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.6.3 Ownership of Materials and Confidentiality. 3.6.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or Page 99 Contract No. ____________ sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents. 3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by professionals other than Consultant or its subconsultants, or those provided to Consultant by the City. 3.6.3.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant. 3.6.3.4 Indemnification – Documents and Data. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers, agents and representatives free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted. Page 100 Contract No. ____________ 3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, agents, volunteers and representatives from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information. 3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.6.5 [Reserved] 3.6.6 Indemnification. 3.6.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, agents, and representatives free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subconsultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, volunteers or representatives. Page 101 Contract No. ____________ 3.6.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. 3.6.7 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.6.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.6.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.6.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.6.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 3.6.12 Assignment; Subcontracting. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.6.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, volunteers and representatives except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.6.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.6.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any Page 102 Contract No. ____________ contractual rights by custom, estoppel, or otherwise. 3.6.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.6.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.6.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.6.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination. [SIGNATURES ON NEXT PAGE] Page 103 Contract No. ____________ SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND KIMLEY-HORN AND ASSOCIATES, INC. IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written. CITY OF PALM DESERT By: L. TODD HILEMAN City Manager ATTEST: By: Anthony J. Mejia City Clerk APPROVED AS TO FORM: By: Best Best & Krieger LLP City Attorney KIMLEY-HORN AND ASSOCIATES, INC. By: Its: Printed Name: By: Its: Printed Name: QC InsuranceID: _____________ __________ __________ Page 104 Exhibit “A” EXHIBIT "A" SCOPE OF SERVICES AND SCHEDULE Page 105 Exhibit “B” EXHIBIT "B" COMPENSATION Page 106 Prepared for: Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project HSIPLN-5414(018); City Project No. 600-21 Prepared by: Page 107 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project – HSIPLN-5414(018); City Project No. 600-21RE: City of Palm Desert  TRTS77007.2022  1 1. COVER LETTER Dear Ms. Nickerson and Members of the Selection Committee: As the City of Palm Desert (City) is seeking a highly qualified professional engineering consulting firm to prepare the plans, specifications, and estimates (PS&E) for the Highway Safety Improvement Program (HSIP) funded high visibility crosswalk improvements project, selecting the right team will be critical in delivering the project on time and within budget. This project scope consists of the installation of high-visibility crosswalks at 13 signalized intersections near activity centers within the City. Kimley-Horn is readily available and accessible to you, and our specific approach to deliver the scope of work in this RFP is highlighted below. We are enthusiastic about the chance to continue our working relationship with you and can offer the City the following benefits: Widespread HSIP Project Involvement. For numerous years, we have had the pleasure of connecting and working with cities and agencies on several essential HSIP projects. A few projects we have assisted on include the City of Culver City, Signal Upgrade and Left Turn Phasing Project; City of West Hollywood, Civil Engineering Design Services for Sunset/Santa Monica Fiber Loop Project; and the City of Downey, Paramount Boulevard Traffic Signal Upgrade and Fiber-Optic Communication System, to name a few. Through this experience, we have gained a critical familiarity of the needs and challenges associated with HSIP projects, adopted strong working relationships with staff and key stakeholders, and established an unparalleled understanding of HSIP project procedures. Similarly, these cities have witnessed the Kimley-Horn team’s dedication to our work. Our definitive goal is to deliver a project to your standards, like we have done on past HSIP projects for adjacent cities. A Knowledgeable Team You Trust. Jean Fares, P.E., a traffic engineer with more than 30 years of robust experience managing and supporting numerous improvement and modification projects for local agencies and cities, will serve as project manager and lead our knowledgeable team on this project. Jean will be supported by a team of skilled engineers, planners, analysts, and specialists who have the relevant experience needed for this pursuit. Notably, Frank Hoffmann, P.E., a professional civil engineer, will serve as our principal-in-charge and has equally relevant knowledge on projects throughout the local area. Jean and Frank are strategically involved with projects in the Coachella Valley, and will leverage the experience and resources of our Kimley-Horn team to best serve you on this project. Kimley-Horn will not be partnering with any subcontractors for this pursuit. Advanced Approach to the Scope of Work. Through our experience providing similar work to the scope outlined in this RFP, our team has developed a strategic approach to making every project a success. Our specific approach for this project includes taking a simple plan design approach to save the City time during the review process and in construction for the implementation phase. Thank you for your consideration of our proposal. We look forward to continuing our partnership as the City’s consultant for this project. Please reach out to our project manager directly if you have any questions at 213.354.9402, Jean.Fares@kimley-horn.com, or the address listed above. Sincerely, KIMLEY-HORN AND ASSOCIATES, INC. Jean Fares, P.E. Frank Hoffmann, P.E. Project Manager/Senior Vice President Principal-in-Charge Jean Fares, P.E., is authorized to negotiate agreement terms and compensation on behalf of Kimley-Horn and contractually obligate the firm. His address and phone number can be found above. City of Palm Desert Audrey Nickerson Project Manager, Department of Public Works 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 760.776.6444 Kimley-Horn 45-025 Manitou Drive Suite 11 Indian Wells, CA 92210 213.354.9402 February 25, 2022 TABLE OF CONTENTS 1. Cover Letter 1 2. Certification of Proposal 2 3. Statement of Qualifications 2 4. Firm Staffing and Key Personnel 3 5. Proposed Method to Accomplish the Work 5 6. Appendices A-1 Page 108 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  2 2. CERTIFICATION OF PROPOSAL The undersigned hereby submits its proposal and, by doing so, agrees to furnish services to the City in accordance with the Request for Proposal (RFP), and to be bound by the terms and conditions of the RFP. 3. STATEMENT OF QUALIFICATIONS Firm Profile Founded in 1967, Kimley-Horn has grown from a small group of traffic engineers and transportation planners to a national firm of more than 5,500 employees in 99 offices, 11 of which are California based. Our firm’s continued growth and stability over the past 55 years is the direct result of offering clients local knowledge and staff in tandem with nationally informed resources. In fact, over 90 percent of our work comes from repeat clients. Relevant Services • Traffic Signals/Traffic Control Devices • Roadway and Intersection Design • ADA Compliance • Caltrans Experience • Signing and Pavement Markings • Project Management/Administration • Field Work/Preliminary Plans • Environmental Documentation • Plans, Specifications, and Estimates (PS&E) • Bidding Assistance and Construction Support Firm Experience with Similar Work Design of Traffic Signal Interconnect Improvements (HSIP Project) Rancho Mirage, CA Kimley-Horn is supporting the City of Rancho Mirage to improve traffic operations for 40 intersections along Highway 111, Bob Hope Drive, Country Club Drive, Dinah Shore Drive, and Monterey Avenue. Kimley-Horn is designing plans to upgrade the traffic signal interconnect network and controller cabinet equipment, which will fulfill the City’s goal of real-time traffic monitoring management. Our team is also supporting the City by implementing new traffic signal timing plans to improve traffic operations and safety throughout the day. To meet the City’s goal of real-time traffic monitoring and performance measurements, Kimley-Horn is designing and will implement CCTV at various intersections. U Reference: Randy Bowman, Deputy Director, City of Palm Desert, 760.776.6493 Traffic Signal Improvements (HSIP Project), Palm Springs, CA Kimley-Horn is assisting the City of Palm Springs with upgrading traffic signal equipment at nine intersections to improve motorist and pedestrian and bicyclist safety. The City completed a citywide roadway safety analysis and ranked all intersections on collision frequency and severity of collisions. The crash data analysis and field observations indicated that signal hardware upgrades could improve conditions related to injury crashes involving motorists, bicycles, and pedestrians. The nine project intersections were identified based on a high number of unsafe speeding vehicles, traffic signals and signs, and automobile right-of-way related collisions. Kimley-Horn’s services include the installation of Advanced Dilemma Zone Detection, implementing a protected left-turn phase, and the upgrade of pedestrian signal heads and push buttons (PPBs). In addition, Kimley-Horn is upgrading the ADA curb ramps to improve pedestrian safety where ADA-compliant ramps are currently not present. This project also includes the implementation of new traffic signal timing plans to improve traffic operations and safety throughout the day. The project controllers have Intelight MAXTIME software and are controlled by a MAXVIEW central system. Kimley-Horn is providing civil, traffic, and environmental services which include environmental PES and California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA) documents. U Reference: Francisco Jaime, Associate Civil Engineer, City of Palm Springs, 760.323.8253 ext. 8750 Signal Upgrade and Left-Turn Phasing (HSIP Project), Culver City, CA Kimley-Horn was selected by the City of Culver City to provide designs for 12 signalized intersections in the City. Some of the work for this project includes field review and survey, utility research, ADA curb ramp design, and the preparation of construction drawings for traffic signal modification design and the installation of left-turn phasing at the intersections. U Reference: Hong Wang, Senior Civil Engineer, City of Culver City, 310.253.5604 55 YEARS 99 OFFICES 5,500+ EMPLOYEES Page 109 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  3 Upgrade of Various Signal Hardware on 224 Signalized Intersections on Various Arterials (HSIP Project), San Bernardino, CA Through Caltrans’ HSIP Cycle 9 funding, the City of San Bernardino received funding to upgrade various signal hardware for 224 signalized intersections throughout the City. Proposed improvements at the 224 project intersections included upgrades to signal hardware components, including traffic signal heads, push buttons, and pedestrian signal heads. Most of the traffic signal hardware at the study intersections was installed decades ago and required equipment upgrades to bring signal hardware component operations up to date to meet minimum ADA and CA Manual on Uniform Traffic Control Devices (MUTCD) requirements. Kimley-Horn provided PS&E services and assisted the City in updating outdated and damaged traffic signal hardware, installing new hardware where necessary, and improving safety by implementing or replacing traffic signal head components, pedestrian signal heads, and PBBs. Kimley-Horn is providing civil, traffic, and environmental services which include environmental PES and CEQA/NEPA documents. U Reference: Azzam Jabsheh, Traffic Engineer, City of San Bernardino Public Works Department, 909.384.7251 Civil Engineering Design Services for Sunset/Santa Monica Fiber Loop (HSIP Project), West Hollywood, CA The City of West Hollywood developed a Smart City Strategic Plan by implementing cutting-edge technology to ultimately improve traffic flow, reduce congestion, and improve safety. The plan identifies several phases for implementation. Kimley-Horn is upgrading the City’s existing Twisted Wire Pair (TWP) copper interconnect to fiber-optic, connecting to the existing system to form a loop, and establishing communication hubs and redundant networks. U Reference: John Gilmour, Principal Civil Engineer, City of West Hollywood Public Works Department, 323.848.6383 Paramount Boulevard Traffic Signal Upgrade and Fiber-Optic Communication System (HSIP Project), Downey, CA This project involves the extension of an existing communication system, which will interconnect the traffic signals along Paramount Boulevard in Downey including all other field devices to be installed along this corridor. The existing communications system consists of a fiber-optic network of communication hubs and signalized intersections all communicating using IP over Ethernet. This solution made the City the first city in Southern California to deploy a fully operational Ethernet communications system. The communications network essentially consists of a ring topology of field hubs and the TMC, and star topology of signalized intersections. Services performed include the installation of fiber and video detection on Paramount Boulevard from Telegraph Road to Gardendale Street. U Reference: Edwin Norris, Deputy Public Works Director, City of Downey, 562.904.7246 Wiley Canyon Road at Orchard Village Road and Newhall Avenue at Railroad Avenue Intersection Improvement (HSIP Project), Santa Clarita, CA Kimley-Horn prepared construction documents including street improvements, median improvements, traffic signal modification, and signing and striping plans. Kimley-Horn assisted the City in extending the existing turn pocket length and installing a protected left phase at Wiley Canyon Road and Orchard Village Road. Kimley-Horn also assisted in the design of a bulb-out and new medians at Newhall Avenue and Railroad Avenue to provide more refuge to pedestrians. Both intersections required modification of the existing landscaping, irrigation, and traffic signal. U Reference: Cesar Romo, Traffic Signal Administrator, City of Santa Clarita, 661.286.4002 4. FIRM STAFFING AND KEY PERSONNEL a. Staffing We have carefully considered the composition of our team and have identified the most qualified personnel with recent, relevant experience to be available to work with you. Led by project manager Jean Fares, P.E., our Kimley-Horn team is comprised of an extraordinary group of professionals who are experienced in providing similar traffic engineering services and are committed to providing the City with a proven approach resulting in high quality deliverables. On the following page, we have provided an organizational chart with the number of staff assigned to perform the scope of services in this RFP along with the names, disciplines, and job title of each staff member. If desired, Kimley-Horn has the capacity to provide additional personnel as needed. “Their work has always been completed and provided in the utmost professional manner within budget and schedule. The City of Downey has been very satisfied with Kimley-Horn’s responsiveness and would not hesitate to hire this firm again.” – EDWIN NORRIS Page 110 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  4 QC/QA MANAGER Kevin Aguigui, P.E., T.E., E.E., CSEP PROJECT MANAGER Jean Fares, P.E. PRINCIPAL-IN-CHARGE Frank Hoffmann, P.E. CALTRANS LAPM Darryl dePencier, AICP, GISP, RSP2B Molly Tremblay, EIT BIDDING/CONSTRUCTION SUPPORT Tim Chan, P.E. Trevor Briggs, P.E. ENVIRONMENTAL DOCUMENTATION Kevin Thomas, CEP, ENV SP Meghan Karadimos TRAFFIC SIGNAL PLANS (PS&E) Tim Chan, P.E. Trevor Briggs, P.E. Rya Jean Castillo, EIT VIvian Chong, EIT Lani Negrillo, EIT Dallas Willey, EIT Bold = Key Team Members b. Key Personnel The table below highlights the key personnel assigned to this project and the roles and responsibilities of each individual. Resumes for our key personnel can be found in section 6. Appendices. Key Personnel Role Responsibility Jean Fares, P.E.Project Manager Primary contact for the City and will lead project team through project development. Frank Hoffmann, P.E.Principal-in-Charge Provide oversight and risk management responsibilities. Kevin Aguigui, P.E., T.E., E.E., CSEP QC/QA Manager Work with the project team to adhere to the scope of work, meet the City’s needs, and maintain adherence to the City’s preferred standards. Tim Chan, P.E.Traffic Signal Plans (PS&E), Bidding/Construction Support Lead the development of PS&E and provide design support during construction. Trevor Briggs, P.E.Traffic Signal Plans (PS&E), Bidding/Construction Support Lead the development of PS&E and provide design support during construction. Kevin Thomas, CEP, ENV SP Environmental Documentation Lead the environmental documentation and associated coordination. Darryl dePencier, AICP, GISP, RSP2B Caltrans LAPM Assist with LAPM. c. Subcontractors Kimley-Horn will not be partnering with any subconsultants for this pursuit. Page 111 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  5 5. PROPOSED METHOD TO ACCOMPLISH THE WORK Project Understanding The City of Palm Desert is seeking to improve pedestrian and bicyclist safety through the installation of crosswalk visibility enhancements at 13 intersections throughout the City. Per the City’s Request for Proposal (RFP), the project is funded at an estimated $247,200 by an HSIP Cycle 10 grant from Caltrans. The 13 project intersections were identified as top priority for improvements due to being located near activity centers such as College of the Desert, public parks, schools, shopping malls, local and regional serving retail and commercial uses. At these locations, 25 collisions occurred involving either a pedestrian or bicyclists. The primary collision factors were typically right-of-way violations or improper driving. Two collisions with severe injuries and 23 with other visible injuries or a complaint of pain were reported. This project involves enhancements to crosswalks to make them more visible to drivers utilizing current Caltrans continental crosswalks markings standards. Thermoplastic striping will be installed at these locations. This improvement has the potential to prevent six future bicycle and pedestrian collisions. As this project was submitted in a pedestrian set-aside HSIP application, a benefit-cost ratio was not calculated. Figure 1 on the following page shows the locations of the intersections where crosswalk visibility enhancements will be installed. Page 112 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  6 Figure 1: Crosswalk Locations Where Visibility Enhancements Will be Installed 111 111 74 Fred Waring DrFred Waring DrMonterey AveMonterey AveMonterey AveMonterey AveDinah Shore AveDinah Shore Ave Cook StCook StPortola AvePortola AveMerle DrMerle Dr San Pablo AveSan Pablo AveDeep Canyon RdDeep Canyon Rd10 1 2 3 4 13 5 6 7 12 8 9 10 11 Project Intersections: 1 Highway 111 & Desert Crossing 2 Highway 111 & Plaza Way 3 Highway 111 & San Pablo Ave 4 Highway 111 & San Luis Ray Ave 5 Monterey Ave & San Gorgonio Way 6 Monterey Ave & Fred Waring Dr 7 Monterey Ave & Dinah Shore Dr 8 Fred Waring Dr & San Pascual Ave 9 Fred Waring Dr & Deep Canyon Rd 10 Cook St & Aztec Rd 11 Cook St & Merle Dr 12 Fred Waring Dr & Town Center Way 13 San Luis Rey Ave & El Paseo Page 113 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  7 Technical and Management Approach The implementation of crosswalk visibility enhancements is an effective method to improve pedestrian and bicyclist safety as well as overall intersection safety. Crosswalk visibility enhancements are a very low-cost safety treatment that is unintrusive to the overall traffic signal system and can be employed without impacting existing conduits, signal controllers, or poles. For this reason, Kimley-Horn is committed to working with the City to deliver a project that is comprehensive, timely, and cost-effective. Kimley-Horn will conduct field investigations at each of the 13 intersections to document existing striping and pavement markings and any relevant intersection or signal infrastructure. Kimley-Horn will submit preliminary plans that will include four intersections per sheet and will show the removal of existing striping and the installation of new thermoplastic striping. To reduce costs associated with plan preparation and City review, base mapping within each sheet will be kept to a minimum and will be limited to show only intersection or signal infrastructure; conduit runs, pull boxes, controllers, and other elements unnecessary to the design will be omitted. Figure 2 below shows an example of before and after design for typical conceptual plans for crosswalk improvements at the intersection of Highway 111 at Plaza Way. Figure 2: Typical Conceptual Plans for Crosswalk Improvements at the Intersection of Highway 111 at Plaza Way Task 1 - Project Management This task will consist of project coordination, administration, and attendance at project meetings. Kimley-Horn’s administration efforts include initial development and maintenance of project schedule, work plan, and filing system and processing timely invoices/progress reports. We will create and maintain a simplified critical path method schedule, updating it as needed to manage the project, and as requested by the City. Kimley-Horn assumes that it will attend up to four meetings with City staff for the project kickoff, and subsequently the 30%, 90%, and 100% design reviews. Kimley-Horn will coordinate with the City to develop meeting agendas for each meeting. After each meeting, Kimley-Horn will prepare and distribute minutes to document design decisions and action items that arise out of each meeting which will be distributed to each meeting attendee. Any additional in-person meetings or through conference calls will require a change to scope. Task 1 Deliverables:  Attendance at up to four project meetings  Electronic copy of meeting agendas and meeting minutes  Schedule updates at each submittal milestone (30%, 90%, 100% Submittals) Task 2 – Field Work/Preliminary Plans Kimley-Horn will conduct field investigations at each of the intersections to document existing signal head equipment, existing retroreflective backplates, and constraints that would affect the design of the proposed project. Page 114 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  8 The project scope is not anticipated to impact utilities and will maintain existing signal head locations and equipment. As a result, Kimley-Horn believes that, in the interest of cost-savings for the City, utility coordination efforts will not be required or included for this project. Kimley-Horn will prepare 30% plans for the installation of high visibility crosswalk improvements at the 13 intersections. Kimley-Horn will submit preliminary plans that will include four intersections per sheet and will show the removal of existing striping and the installation of new thermoplastic striping. To reduce costs associated with plan preparation and City review, base mapping within each sheet will be kept to a minimum and will be limited to show only intersection or signal infrastructure; conduit runs, pull boxes, controllers, and other elements unnecessary to the design will be omitted. Plans will be completed in AutoCAD Version 2020 and will be presented with four intersections per plan sheet. Technical special provisions and estimates will not be completed for this submittal. Task 2 Deliverables:  30% Preliminary Plans in PDF electronic format Task 3 – Environmental Documentation As this project is state funded as part of HSIP Cycle 10, local HSIP projects must meet the requirements of the CEQA. Based upon our preparation of environmental documentation for similar projects and a review of the project as presented in the RFP, Kimley-Horn anticipates that the project will be categorically exempt under CEQA Guidelines Section 15301 – Existing Facilities. The Notice of Exemption (NOE) will include a brief project description and analysis/explanation as to why this exemption under CEQA Guidelines Section 15301 is appropriate and confirm that no exceptions or unusual circumstances exist. Kimley-Horn will file the NOE with the County Clerk. Task 3 Deliverables:  Preparation of CEQA Categorical Exemption Task 4 – Plans, Specifications, and Estimates (PS&E) Task 4.1 – 90% PS&E Package Based on one set of non-conflicting comments on the 30% Preliminary Plans, Kimley-Horn will advance the construction documents to a 90% level of design. Kimley-Horn will adjust the design plans based on City comments. Kimley-Horn will prepare a comment response matrix to be submitted with the 90% submittal. The comment response matrix will include the original comments, Kimley-Horn responses to the comments, and final resolution. Additional annotation will be added to the traffic signal plans based on the comments received by the City. The engineer’s opinion of probable construction costs will be developed based on the preliminary plans. A project contingency will be included in the engineer’s opinion of probable costs to provide for cost increases and unknown issues that may arise but cannot be specifically identified at this stage. Kimley-Horn will prepare technical special provisions. The base documents that the special provisions will be based on is the City of Palm Desert Traffic Signal Specifications and Caltrans 2018 Standard Specifications. We anticipate the following preliminary plan sheet counts for the project: • Cover Sheet (One sheet) • Notes, Legends, and Construction Details (One sheet) • Crosswalk Improvement Plans (4 sheets) Estimated Total Sheets: 5 Sheets We do not anticipate the following sheets to be part of the design at any stage of the project: • Traffic Signal Plans • Civil Improvements • Communication Plans • Street Lighting Plans Task 4.1 Deliverables:  One set of 24”x36” hardcopy 90% plans  One set of hardcopy technical special provisions  90% Opinion of Probable Costs in PDF format Page 115 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  9 Task 4.2 – 100% PS&E Package Based on one set of non-conflicting comments from the 90% PS&E comments, Kimley-Horn will advance the PS&E to the 100% level of design. It is expected that the comments will not result in a major change in design. Kimley-Horn will adjust the plans and technical specifications based on the City comments accordingly. Kimley-Horn will prepare a comment response matrix to be submitted with the Final submittal. The comment response matrix will include the original comments, Kimley-Horn responses to the comments, and final resolution. A licensed professional engineer will conduct a peer review and QC/QA of the design plans, cost estimates, and technical special provisions. A licensed professional engineer will stamp and sign all plan sheets for this submittal. Task 4.2 Deliverables:  One set of 24”x36” hardcopy 100% plans  One set of hardcopy technical special provisions  100% Opinion of Probable Costs in PDF format Task 5 – Bidding Assistance This task consists of coordination and support during the bidding phase of the project. Kimley-Horn will attend the pre-bid meeting and assist City staff and/or potential contractors in answering pre-bid question, and interpretations of the plans and specifications. Kimley-Horn will provide responses to requests for information (RFI) during the bidding phase. Task 5 Deliverables:  Response to pre-bid questions  Response to RFI and questions during bidding phase Task 6 – Construction Support This task consists of coordination and support during the construction stages of the project. Kimley-Horn will attend the pre-construction meeting and address items for the construction management team to be aware of. Kimley-Horn will be involved during construction stages by responding to RFIs, reviewing and responding to all submittals, and reviewing any proposed changes by the contractor during construction. We will attend up to one construction progress meeting or field meeting. At the end of construction, Kimley-Horn will attend one meeting for final inspection and assist in the development of punch lists. Task 6 Deliverables:  Attendance at up to two meetings  Response to RFIs and Submittal Reviews Task 6.1 Prepare Record Drawing As-Builts Kimley-Horn will prepare record drawing as-builts after construction has been completed. Any comments and changes during construction as red-lined and noted by the contractor will be documented and annotated. Record drawings will be prepared in AutoCAD, and PDF electronic files shall be sent to the City. Task 6.1 Deliverable:  Record drawings in PDF electronic format Methodology The flowchart on the following page illustrates our approach to completing the scope of work. Page 116 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  10 Local Assistance Procedure Manual PS&E Process Environmental Clearance Cycle 10 project are using state funds; therefore, only CEQA will be required for environmental clearance. Start ROW Certification Progress/ Comments Meeting Gather Existing Data • As-Builts • Field Investigation Design of Improvements Deliverable: Preliminary PS&E Kick-off Meeting Prepare E-76 Forms for Construction City Submits E-76 for Construction E-76 Authorization for Construction Bidding Assistance Construction Assistance Deliverable: 100% PS&E Deliverable: 90% PS&E Deliverable: Bid Package Progress/ Comments Meeting Progress/ Comments Meeting Deliverable: CEQA CE/NOE Schedule We have prepared a project schedule that outlines suggested major tasks and milestones, based on the approach we provided previously in this section. We will proceed expeditiously once the project is kicked off and will schedule a project kickoff meeting with the City to discuss design approach and refined project schedule. We anticipate the preliminary field work, coordination, and plan preparation to be completed within two months from the notice to proceed date, with consideration for staffing from the City and Consultant teams throughout the process. The 90% and 100% PS&E submittals will be completed shortly after the Agency review process, and will take place within three to six months from the notice to proceed date, with construction support tasks envisioned in the months following. Our draft schedule below outlines the tasks, milestones, and deliverables requested in order to provide the necessary services in a timely manner. Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project Months from Notice to Proceed 1 2 3 4 5 6 7 8 9 10 11 12 Task 1 - Project Management/Administration Task 2 - Field Work/Preliminary Plans Task 3 - Environmental Documentation Task 4 - Plans, Specifications, and Estimates (PS&E) Task 5 - Bidding Assistance Task 6 - Construction Support Kimley-Horn Effort City Review Period Page 117 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-1 6. APPENDICES a. Litigation Kimley-Horn and its subsidiaries have provided services in all 50 states and numerous countries. Because of the many and varied projects we have completed, we are subject to various legal proceedings from time to time and in the ordinary course of business. It is not practical to provide a complete list as part of this proposal. None of the pending matters, if decided against Kimley-Horn, would have a material impact on our financial statements or impair in any way our ability to serve our clients. Generally, these matters are covered by insurance, and we consider them to be without merit. If you would like to discuss our legal matters in more detail, please contact Kimley-Horn’s General Counsel, Richard Cook, at 919.677.2058. Legal proceedings in California within the last five years are as follows: Vicente Gomez, et al v. Pilot Travel Centers, LLC, et al; Case # CVRI2103878; Superior Court of California, County of Riverside; filed 2021; personal injuries; pending 29Twenty Maintenance Association v Van Daele Development, et al; Los Angeles County, Superior Court of the State of California; Case No 19STCV13496; filed 2019; alleged economic loss; settled; closed 2020 Brenda Sherriffs v. Kimley-Horn and Associates, Inc., et al: Santa Cruz County Superior Court; Case No. 16CV00335; filed 2016; bicycle accident, personal injuries; settled; closed 2019 Farhad Abad, individually and for the Estate of Mahin Ashki-Abad; et al v. US Foods, et.al.; Alameda County Superior Court; Case RG17856272; filed 2017; traffic accident, wrongful death claim; settled; closed 2019. Nancy Graham v. City of Santa Cruz, et al: Santa Cruz County Superior Court; Case No. 16CV02729; filed 2017; bicycle accident, personal injuries; settled; closed 2018. Air Wing, LLC v. One Piper Ranch, LLC v. Cross-Complainants: San Diego County Superior Court; Case No. 37-2014-00009315; filed 2016; alleged economic loss; Kimley-Horn dismissed; closed 2017. Rickey Fraley, Eileen Fraley v Live Nation Worldwide, Inc., et al: San Bernardino County Superior Court; Case No. CIVDS 1707090; filed 2017; wrongful death claim; Kimley-Horn dismissed; closed 2017. b. Key Personnel Resumes We have dedicated the most qualified personnel with recent, relevant experience to work with you. Starting on the following page, we have provided resumes for our key personnel describing their qualifications, education, and professional licensing information, followed by Exhibit 1: Key Personnel Experience Matrix. Page 118 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-2 Professional Credentials • Bachelor of Science, California State Polytechnic University, Pomona • Professional Traffic Engineer in California #TR2097 Jean has more than 30 years of experience with the planning and design of traffic and transportation projects throughout California. He has provided traffic signal design at over 2,000 locations, signal system design at over 1,500 locations, and traffic signal timing at over 2,500 locations. In addition, Jean has wide-ranging experience with traffic operations, signing and marking plans preparation, transportation management plans, and traffic control plans. He has led many design-build transportation and transit projects that required traffic engineering, intelligent transportation systems (ITS) technologies, and communications infrastructure design. Relevant Experience • City of Rancho Mirage, Design of Traffic Signal Interconnect Improvements (HSIP Project) Rancho Mirage, CA – Project Manager • City of Palm Springs, Traffic Signal Improvements (HSIP Project), Palm Springs, CA – Project Manager • City of Culver City, Signal Upgrade and Left Turn Phasing Project (HSIP Project), Culver City, CA – Project Manager • City of San Bernardino, Upgrade of Various Signal Hardware on 224 Signalized Intersections on Various Arterials (HSIP Project), San Bernardino, CA – Project Manager • City of West Hollywood, Civil Engineering Design Services for Sunset/Santa Monica Fiber Loop (HSIP Project), West Hollywood, CA – Project Manager • City of Downey, Paramount Boulevard Traffic Signal Upgrade and Fiber-Optic Communication System (HSIP Project), Downey, CA – Project Manager • City of Santa Clarita, Wiley Canyon Road at Orchard Village Road and Newhall Avenue at Railroad Avenue Intersection Improvement (HSIP Project), Santa Clarita, CA – Deputy Project Manager • City of Thousand Oaks, Rancho Road Sidewalks and Bike Lanes (HSIP Project), Thousand Oaks, CA – Project Manager • Coachella Valley Association of Governments (CVAG), Traffic Signal Synchronization Project, Coachella Valley, CA – Project Manager • City of Long Beach, Long Beach Boulevard Traffic Signal System Projects, Long Beach, CA – Project Manager • City of Whittier, Whittier Boulevard Traffic Signal System Projects, Whittier, CA – Project Manager • City of San Marino, Los Robles Avenue Traffic Signal Improvement and Interconnect, San Marino, CA – Project Engineer • Los Angeles County, Pomona Valley Advanced Traffic Management and ITS Project, Pomona Valley, CA – Project Manager • Los Angeles County, Colima Road and Fullerton Road ITS and Street Improvements, Los Angeles County, CA – Project Manager • Los Angeles County, Nogales Street Traffic Signal Synchronization Project, Various Cities in Los Angeles County, CA – Project Manager • Los Angeles County, Woodruff Avenue Traffic Signal Synchronization Project, Various Cities in Los Angeles County, CA – Project Manager • Los Angeles County, Marine Avenue Traffic Signal Synchronization Project, Various Cities in Los Angeles County, CA – Project Manager • City of Burbank, Buena Vista Street and Winona Avenue Improvements, Burbank, CA – Project Manager • City of Santa Monica, Transit Priority System Phase 2/ATMS Phase 3, Santa Monica, CA – Project Manager Jean Fares, P.E. Project Manager Page 119 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-3 Professional Credentials • Bachelor of Science, Civil Engineering, Fachhochschule Rheinland-Pfalz • Professional Engineer in California #61839 and Arizona #42877 • FAA Part 107 Remote PilotFrank has over 35 years of diverse experience in civil design and construction management. Project types include private, local, state, and federal work with roadway design and improvement, utility design, water resources, drainage design, airport construction, private and commercial development, and more. His responsibilities include project management, work plan preparation, cost estimating, contractor selection, scheduling and oversight, design specification development, resource allocation, technical and final report preparation and review, Quality Control/Quality Assurance (QC/QA), troubleshooting, negotiation/ approval of field changes, and client relations. He is currently working on projects in Palm Springs, Corona, Colton, Beaumont, and Banning with Caltrans District 8. As a long-time resident of the Coachella Valley, Frank has an intimate understanding of the local needs and wants of the region. Relevant Experience • City of Palm Springs, Traffic Signal Improvements (HSIP Project), Palm Springs, CA – Project Engineer • City of San Bernardino, Upgrade of Various Signal Hardware on 224 Signalized Intersections on Various Arterials (HSIP Project), San Bernardino, CA – Project Engineer • City of Palm Desert, Traffic Operations and Capacity Improvements, Palm Desert, CA – Project Engineer • City of Palm Desert, Haystack Road and Highway 74 Intersection Modification, Palm Desert, CA – Project Engineer • City of Cathedral City, Date Palm Drive and Varner Road HSIP Safety Improvements, Cathedral City, CA – Project Manager • City of Palm Springs, Citywide Engineering and Traffic Survey, Palm Springs, CA – Project Engineer • City of Palm Springs, On-Call Civil Engineering Services, Palm Springs, CA – Project Manager • City of Indian Wells, On-Call Design Engineering Services, Indian Wells, CA – Project Manager • Western Riverside County Council of Governments (WRCOG), On-Call Services, Riverside, CA – Project Engineer • County of Riverside, I-10 Bypass PA&ED, Riverside County, CA – QC/QA Manager • City of Beaumont, I-10/Pennsylvania Avenue Widening, Beaumont, CA – Lead Roadway Engineer • City of Perris, Patterson Avenue and Webster Avenue Widening, Perris, CA – Lead Roadway Engineer • Lewis Companies/City of Ontario, Ontario Ranch Road Widening Project, Ontario, CA – Project Manager • Jamul Indian Village, SR 94 Campo Road Widening, Jamul, CA – Lead Roadway Engineer • City of Agoura Hills, Agoura Road Widening Project (Complete Streets), Agoura Hills, CA – Lead Roadway Engineer • City of Santa Monica, Ocean Park Boulevard Complete Green Street Project, Santa Monica, CA – Senior Roadway Engineer • LA Metro, SR 138 Corridor PA&ED, North Los Angeles County, CA – Deputy Project Manager • I-5/Genesee Avenue Interchange PA&ED, PS&E and Construction Phase Services, San Diego, CA – QC/QA Manager • I-5 North Coast PA&ED and PS&E, San Diego, CA – Senior Roadway Engineer • Voigt Drive/I-5 North Coast Corridor (NCC) Improvements (PS&E), San Diego, CA – QC/QA Manager Frank Hoffmann, P.E. Principal-in-Charge Page 120 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-4 Professional Credentials • Bachelor of Science, Civil Engineering, University of Hawaii at Monoa • Professional Civil Engineer in California #48732 • Professional Traffic Engineer in California #19888 • Professional Electrical Engineer in California #19888 • Certified Systems Engineering Professional (CSEP) #00156 Kevin is a professional engineer with more than 25 years of hands-on technical and management experience in many areas of traffic engineering and design, traffic signal timing, ITS, electrical design, and systems integration. His main focus is in the areas of transportation management systems, communications networks, traffic adaptive systems, Bus Rapid Transit/Transit Signal Priority (TSP), and ITS. His wide range of skills focuses on the utilization of systems engineering for the planning, design, deployment, and integration of advanced technologies, and electrical systems for transportation management. Relevant Experience • City of Palm Springs, Traffic Signal Improvements (HSIP Project), Palm Springs, CA – QC/QA Reviewer • City of San Bernardino, Upgrade of Various Signal Hardware on 224 Signalized Intersections on Various Arterials (HSIP Project), San Bernardino, CA – QC/QA Reviewer • City of West Hollywood, Civil Engineering Design Services for Sunset/Santa Monica Fiber Loop (HSIP Project), West Hollywood, CA – QC/QA Reviewer • City of Downey, Paramount Boulevard Traffic Signal Upgrade and Fiber-Optic Communication System (HSIP Project), Downey, CA – Project Engineer • City of Rancho Mirage, Design of Traffic Signal Interconnect Improvements (HSIP Project) Rancho Mirage, CA – QC/QA Manager • LA Metro, Expo Metro Line Construction Authority, Design of LRT Phase 2 - Stage B, Los Angeles, CA – Systems Engineer • City of Santa Monica, Transit Priority System Phase 2/ATMS Phase 3, Santa Monica, CA – QC/QA Reviewer • Port of Long Beach, Gerald Desmond Bridge Design-Build (D-B) Project, Long Beach, CA – Electrical and Systems Engineer • City of Santa Clarita, ITS Phases II - VII Projects, Santa Clarita, CA – QC/QA Reviewer • City of Stockton, Miner Avenue and Filbert Street Traffic Signal Installation, Stockton, CA – Principal-in-Charge • City of Stockton, Signal Improvements on Martin Luther King Jr. Way (HSIP project), Stockton, CA – Project Manager • City of Stockton, Left-Turn Improvements at Airport Way and Hazelton Avenue (HSIP project), Stockton, CA – Project Manager • City of San Rafael, 3rd Street Safety Improvements, San Rafael, CA – Project Manager • City of Santa Clara, De La Cruz Boulevard, El Camino Real, and Scott Boulevard Traffic Signal Interconnect and Coordination Project, Santa Clara, CA – Project Manager • City of Santa Clara, Bowers Avenue Traffic Signal Interconnect, Santa Clara, CA – Project Manager • City of Santa Clara, Benton Street at Pomeroy Avenue Intersection Improvements and Signal Interconnect Project, Santa Clara, CA – Project Manager • City of Burlingame, Traffic Signal Controller and Cabinet Replacement for Broadway/California Drive/Carolan Avenue Intersections, Burlingame, CA – Project Manager • City of Sunnyvale, Advanced Dilemma Zone Detection, Sunnyvale, CA – Project Engineer • City of Menlo Park, Sand Hill Road Traffic Signal Interconnect Adaptive Coordination Project Design Services, Menlo Park, CA – Principal-in-Charge Kevin Aguigui, P.E., T.E., E.E, CSEP QC/QA Manager Page 121 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-5 Professional Credentials • Bachelor of Science, Civil Engineering, California State Polytechnic University, Pomona • Professional Civil Engineer in California #C85687 • Orange County Traffic Engineering Council (OCTEC), Member Tim’s experience of nine years includes traffic engineering design and transportation planning. His traffic engineering experience includes preparing traffic signal design, signing and striping, streetlight, traffic control, and interconnect plans. Tim has conducted and managed the field investigation and design tasks on numerous projects. His attention to detail and knowledge of field conditions has translated into successful designs and constructible plans. Additionally, he has worked with public and private sector clients on a variety of traffic impact studies, transportation analyses, and parking evaluations throughout the Southern California region. Tim is experienced in a wide range of transportation-related software packages, including Synchro, SimTraffic, Traffix, and Vistro, and is knowledgeable of planning and design standards for local and state agencies. Relevant Experience • City of Palm Springs, Traffic Signal Improvements (HSIP Project), Palm Springs, CA – Project Engineer • City of Rancho Mirage, Traffic Signal Interconnect Improvements (HSIP), Rancho Mirage, CA – Project Engineer • City of Cathedral City, Traffic Signal Modification at Date Palm Drive and Converse Road, Cathedral City, CA – Project Engineer • City of Culver City, Signal Upgrade and Left Turn Phasing (HSIP Project), Culver City, CA – Project Engineer • The Merge Off-site Improvements, Eastvale, CA – Project Engineer • Homestead Off-site Improvements, Eastvale, CA – Project Engineer • City of El Monte, Ramona Boulevard at Valley Boulevard Intersection Improvement Project, El Monte, CA – Project Engineer • Los Angeles County, Woodruff Avenue Traffic Signal Synchronization Project, Various Cities in Los Angeles County, CA – Project Engineer • City of Newport Beach, East Coast Highway Signal Rehabilitation Design (nine intersections), Newport Beach, CA – Project Engineer • City of Industry, Fullerton Road Grade Separation, Industry, CA – Project Engineer • City of Irvine, Sand Canyon Avenue at Hoag Irvine Traffic Signal Modification, Irvine, CA – Project Engineer • City of Anaheim, Traffic Signal Designs for Gene Autry Way Improvements (three intersections), Anaheim, CA – Project Engineer • City of Santa Ana, South Main Street Corridor Improvements, Santa Ana, CA – Project Engineer • City of Santa Ana, Warner Ave Street Improvements (Oak Street to Wright Street), Santa Ana, CA – Project Engineer • City of Burbank, Midtown Commercial Corridor Signal Improvements (28 intersections), Burbank, CA – Project Engineer Tim Chan, P.E. Traffic Signal Plans (PS&E), Bidding/Construction Support Page 122 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-6 Professional Credentials • Bachelor of Science, Civil Engineering, Brigham Young University • Professional Engineer in California #87664 • Orange County Traffic Engineering Council (OCTEC), Member • Institute of Transportation Engineers (ITE), Member Trevor has eight years of experience completing various transportation projects and studies in California and nationwide. Trevor has been involved in conducting analyses, writing various traffic impact studies, and parking evaluations for public agencies and jurisdictions. He has also designed and drafted traffic plans, including signing and striping, traffic signal, traffic control, and ITS plans. He has utilized a wide range of transportation-related software packages and is knowledgeable of planning and design standards for many local and state agencies. Relevant Experience • City of Anaheim, On-Call Planning and Engineering, Anaheim, CA – Project Engineer • Anaheim Raising Cane’s Traffic Impact Study, Anaheim, CA – Project Manager • City of Santa Ana, On-Call Engineering Services, Santa Ana, CA – Project Engineer • City of Santa Ana, South Main Street Corridor Improvements, Santa Ana, CA – Project Engineer • City of Santa Ana, MainPlace Mall EIR Addendum, Santa Ana, CA – Project Engineer • City of Newport Beach, On-Call Traffic Engineering Services, Newport Beach, CA – Project Engineer • City of Newport Beach, Traffic Impact Study for the Newport Executive Center, Newport Beach, CA – Analyst • City of Newport Beach, East Coast Highway Signal Rehabilitation Design, Newport Beach, CA – Analyst • Newport Heights Neighborhood Study, Newport Beach, CA – Project Engineer • City of Buena Park, Western Avenue Sight Distance and Parking Improvements, Buena Park, CA – Project Engineer • City of Buena Park, Buena Park Circulation Element and General Plan Update, Buena Park, CA – Analyst • Lakeshore Towers Parking Demand Study, Irvine, CA – Project Engineer • City of Dana Point, Lantern Point Hotel Traffic Services, Dana Point, CA – Project Manager • City of Aliso Viejo, Soka University Expansion EIR Addendum, Aliso Viejo, CA – Project Engineer • City of Aliso Viejo, 4 Liberty Traffic Services, Aliso Viejo, CA – Project Engineer • City of Industry, On-Call Traffic and Civil Engineering Services, Industry, CA – Analyst • City of Thousand Oaks, On-Call Traffic Engineering Services, Thousand Oaks, CA – Analyst • ABC Unified School District, Cerritos Elementary School Circulation Analysis, Cerritos, CA – Project Engineer • Contra Costa County, Byron Highway and Camino Diablo Intersection Improvements, Contra Costa County, CA – Analyst • City of Thousand Oaks, Market Place Shared Parking Study, Thousand Oaks, CA – Project Manager Trevor Briggs, P.E. Traffic Signal Plans (PS&E), Bidding/Construction Support Page 123 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-7 Professional Credentials • Bachelor of Arts, Environmental Engineering, University of California, Los Angeles • Certified Environmental Professional #99040383 • Envision Sustainability ProfessionalKevin has over 35 years of experience in the environmental compliance and permitting of major capital improvement and land development projects, guiding the strategic preparation and peer review CEQA/ NEPA documents and regulatory permitting programs. He has managed and prepared Environmental and Planning studies for public and private sector clients under CEQA and NEPA. Kevin has managed a wide range of environmental planning projects, including environmental documents for major transportation projects, large-scale capital improvement projects, air quality and noise studies, community participation programs, state-of-the art visual analyses, facility siting, and due diligence studies. He is adept at integrating with design teams at all stages of the project delivery process, from feasibility study to concept design, PA/ED (CEQA/NEPA compliance), regulatory permitting, construction bid document review for CEQA/NEPA and permit compliance, and mitigation monitoring reports during construction. Relevant Experience • City of Palm Springs, Traffic Signal Improvements (HSIP Project), Palm Springs, CA – Environmental Planner • City of San Bernardino, 224 Traffic Signal Improvements (HSIP Project), San Bernardino, CA – Environmental Planner • City of Cathedral City, Date Palm Drive and Varner Road HSIP Safety Improvements, Cathedral City, CA – Environmental QC/QA Manager • City of Moreno Valley, Ironwood Avenue RSA/RSSA, PES, and CE/CE (HSIP Project), Moreno Valley, CA – Environmental Planner • City of Moreno Valley, Kitching Street RSA/RSSA, PES, and CE/CE (HSIP Project), Moreno Valley, CA – Environmental Planner • La Entrada Specific Plan Final EIR, Coachella, CA – CEQA Task Manager • City of Indian Wells, Washington Street Improvement Project IS/MND, County of Riverside/Indian Wells – CEQA Task Manager • Riverside County Transportation and Land Management Agency, On-Call Environmental Services, Riverside, CA – Project Manager • County of Riverside, Garden of Champions Program EIR, Indian Wells, CA – CEQA Task Manager* • Caltrans Districts 7, 8, and 12, On-Call Environmental Services Contracts, Los Angeles, San Bernardino, Riverside, and Orange Counties, CA – Project Manager* • Riverside County Transportation Commission, Van Buren Metro Station IS/MND and CE/PES, Riverside, CA – Environmental Task Manager* • Riverside County Transportation Department, Various Road Projects, Riverside, CA – Project Manager* • City of Costa Mesa, North Costa Mesa Arterial Improvement Program EIR, Costa Mesa, CA – Project Manager * • City of Murrieta, Interstate 15 and Nutmeg Street Overcrossing IS/MND, Murrieta, CA – Project Manager* • City of Huntington Beach, McFadden Avenue and Interstate 405 Overcrossing IS/MND, Huntington Beach, CA – Project Manager* • Antelope Valley Transportation Authority Operations Center IS/EA, Lancaster, CA – Project Manager* *Prior to joining Kimley-Horn Kevin Thomas, CEP, ENV SP Environmental Documentation Page 124 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-8 Professional Credentials • Master of Urban Spatial Analytics, University of Pennsylvania • Bachelor of Arts, Geography, Carleton University, Ottawa, ON • American Institute of Certified Planners #59317 • Geographic Information Systems Professional #26552 • Road Safety Professional1#273 • Road Safety Professional2B #17 Darryl has over 15 years of experience assisting on and leading transportation planning and engineering projects. He has developed a number of tools and methods to assess multimodal transportation system performance focused on mobility, safety, equity, sustainability, and health. His experience ranges from establishing transportation policy language to network evaluation at local, regional, and statewide levels. Darryl routinely uses a variety of data sources to inform his analyses including travel demand models; census data; LODES data; vendor products such as Replica, Streetlight and Teralytics; and information collected from stakeholders and the public. He is skilled in GIS and other analytical software systems to create robust and user-friendly products that help decisionmakers and the public make the best use of his plans and studies. Relevant Experience • City of Palm Desert, Sustainable Communities Program Safe Routes to School Grant Application, Palm Desert, CA – Project Planner • City of Anaheim, Local Roadway Safety Plan and HSIP Project Development, Anaheim, CA – Project Planner • City of Perris, Local Roadway Safety Plan and HSIP Project Development, Perris, CA – Project Manager • City of Moreno Valley, RSA/Roadway Safety Signing Audit (RSSA), Moreno Valley, CA – Project Planner • RCTD, Horizontal Curve Assessment, Riverside County, CA – Project Planner • County of Imperial, Systematic Safety Analysis Report for Varied Roadways and HSIP Project Development, Imperial County, CA – Project Planner • City of Costa Mesa, Local Roadway Safety Plan, Costa Mesa, CA – Project Manager • City of Ventura, Systematic Safety Analysis Report Program and HSIP Project Development, Ventura, CA – Project Planner • City of Goleta, Traffic Safety Study for the Systemic Safety Analysis Report Program and HSIP Project Development, Goleta, CA – Project Planner • City of Eastvale, Local Roadway Safety Plan, Eastvale, CA – Project Manager • City of Eastvale, Systemic Safety Analysis Report and HSIP Project Development, Eastvale, CA – Project Manager • City of Artesia, Local Roadway Safety Plan and HSIP Project Development, Artesia, CA – Project Manager • City of Santa Clarita, Systemic Safety Analysis Report Project, Santa Clarita, CA – Project Planner • City of Lancaster Systemic Safety Analysis Report Program, Lancaster, CA – Project Planner • Caltrans, Strategic Highway Safety Plan, Statewide, CA – Project Planner • Caltrans, Safety Performance Measure Targeting, Statewide, CA – Project Planner • SBCAG, Senate Bill 1 Grant Services, Statewide, CA – Project Planner • MCAG, Regional Transportation Plan/Sustainable Communities Strategy, Merced, CA – Project Planner • SCCRTC, Unified Corridor Investment Study, Santa Cruz County, CA – Project Planner • City of Sunnyvale, Roadway Safety Plan, Sunnyvale, CA – Project Manager Darryl dePencier, AICP, GISP1, RSP2BCaltrans LAPM Page 125 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-9 Exhibit 1: Key Personnel Experience Matrix The matrix below showcases Kimley-Horn’s knowledge in the areas requested in this RFP for public agencies throughout Southern California. PROJECTS Project ManagementBackground ResearchField Check/Data CollectionUtility CoordinationEnvironmental AnalysisRight-of-WayTraffic Signal Design – PS&ESignal TimingContractor CoordinationLAPMBiddingConstruction SupportDesign of Traffic Signal Interconnect Improvements (HSIP Project) Rancho Mirage, CA Signal Upgrade and Left Turn Phasing Project (HSIP), Culver City, CA Upgrade of Various Signal Hardware on 224 Signalized Intersections on Various Arterials (HSIP), San Bernardino, CA Civil Engineering Design Services for Sunset/Santa Monica Fiber Loop (HSIP), West Hollywood, CA Paramount Boulevard Traffic Signal Upgrade and Fiber-Optic Communication System (HSIP), Downey, CA Wiley Canyon Road at Orchard Village Road and Newhall Avenue at Railroad Avenue Intersection Improvement Project (HSIP), Santa Clarita, CA Glassell Street Traffic Engineering Services (HSIP), Orange, CA RSA/RSSA, Moreno Valley, CA Transit Priority System Phase 2/ATMS Phase 3, Santa Monica, CA Final Design Services for Traffic Signal Improvements along Studebaker Road (HSIP), Norwalk, CA Design Services for Traffic Signal Improvements along Alondra Boulevard (HSIP), Norwalk, CA Traffic Signal Synchronization Project, Coachella Valley, CA Seven Traffic Signals and Flashing Yellow Arrow Signal Modifications Project, Rancho Cucamonga, CA Traffic Signal Improvements (135 Intersections), Burbank, CA On-Call Traffic and Transportation Services, Corona, CA On-Call Traffic Engineering Services, Agoura Hills, CA Rancho Road Sidewalks and Bike Lanes (HSIP), Thousand Oaks, CA Woodruff Avenue Traffic Signal Synchronization Project, Los Angeles County, CA Traffic Signal System Design Select List (200 traffic signal upgrades), Los Angeles County, CA Smart Corridor-San Fernando Road, Glendale, CA On-Call Traffic Signal Design Services (25 Intersections), Palmdale, CA On-Call Traffic Engineering Services, Industry, CA San Fernando Road Improvements, Santa Clarita, CA On-Call Engineering Services, South El Monte, CA Harbor Scenic Drive and Harbor Plaza Intersection Improvements, Port of Long Beach, CA SSARP for Varied Roadways, Imperial County, CA Traffic Signal Design at 75 Locations, Glendale, CA Traffic Engineering Services On-Call, Chino, CA As-Needed Traffic Engineering Services, Los Angeles, CA Traffic Signal Upgrades, Arcadia, CA Page 126 Proposal to Provide Professional Engineering and Design Services for the HSIP Cycle 10 High Visibility Crosswalk Improvements Project City of Palm Desert  TRTS77007.2022  A-10 c. Changes to Agreement Kimley-Horn has reviewed the contract in Attachment B in this RFP and does not have any objections and/or changes to the standard contract language. Page 127 CONTACT Jean Fares, P.E. jean.fares@kimley-horn.com 213.354.9402 45-025 Manitou Dr Suite 11 Indian Wells, CA 92210 The entirety of this proposal, including text and images, is the property of Kimley-Horn and Associates, Inc., protected under U.S. copyright law. Copyright © 2022 Kimley-Horn and Associates, Inc.www.kimley-horn.com Page 128 Page 129 Page 130 Page 131 Page 132 !( !(!(!(!( !( !( !(!( !( !( !( !( 9 8 7 6 5 43 2 1 13 12 11 10 Palm Desert HSIP Application - Project Location Map ¯ Legend !(Project Intersections Palm Desert City Boundary Enhanced Crosswalk Visiblity No Intersection 1 Highway 111 & Desert Crossing 2 Highway 111 & Plaza Way 3 Highway 111 & San Pablo Ave 4 Highway 111 & San Luis Rey Ave 5 Monterey Ave & San Gorgonino Way 6 Monterey Ave & Fred Waring Dr 7 Monterey Ave & Dinah Shore Dr 8 Fred Waring Dr & San Pascual Ave 9 Fred Waring Dr & Deep Canyon Rd 10 Cook St & Aztec St 11 Cook St & Merle Dr 12 Fred Waring Dr & Town Center Way 13 San Luis Rey Ave & El Paseo Page 133 [This page has intentionally been left blank.] Page 134 Contract No. HA38931 STAFF REPORT PALM DESERT HOUSING AUTHORITY DEVELOPMENT SERVICES DEPARTMENT MEETING DATE: April 28, 2022 PREPARED BY: Jessica Gonzales, Senior Management Analyst REQUEST: Approval of an Amendment to Contract No. HA38930 with Curtis Allan Floorcovering, Inc., for purposes of procuring floor coverings and related supplies and services with Engineered Floors, LLC (dba J+J Flooring Group and dba EF Contract), at the Palm Desert Housing Authority properties in an annual amount not to exceed $250,000. ___________________________________________________ Recommendation By Minute Motion, that the Authority Board, 1) Approve an Amendment No. 1 (“Amendment”) to Contract No. HA38930 with Curtis Allan Floorcovering, Inc., (“Curtis Allan”) for purposes of procuring floor coverings and related supplies and services (includes costs for non-warrantee partial replacements and repairs) (“Contract” or “Agreement”, interchangeable), effective July 1, 2022, at the Palm Desert Housing Authority (“Authority”) properties for a two-year term under the National Cooperative Purchasing Alliance Agreement, Flooring & Outdoor Surfaces Solutions Contract No. 02-60, with Engineered Floors, LLC (dba J+J Flooring Group and dba EF Contract) pursuant to Section 3.30.160 (L) and 3.30.160 (E) of the City of Palm Desert Municipal Code in a total amount not to exceed $250,000 each year; and 2) Authorize Staff and RPM Company (“RPM”), the Authority’s contracted management company, to procure the services as determined to be necessary and assign any additional non-warrantee partial replacements and repairs due to emergency actions and/or proactively responding to issues at the Authority properties (“Properties”), including expenditures; and 3) Authorize the Chairman and/or the Executive Director to execute the Amendment and any documents necessary to effectuate and implement the actions taken herewith. Funds have been included in the FY 2022/2023 proposed Authority’s operating budget, in the appropriate accounts. Page 135 Contract No. HA38931 April 28, 2022 – STAFF REPORT Housing Authority – Amendment to Curtis Allan contract Page 2 of 4 Housing Commission Recommendation The Housing Commission reviewed this recommendation at its regular meeting of April 6, 2022, and unanimously recommended approval of staff’s recommendation. Strategic Plan This request does not apply to a specific strategic plan goal. Executive Summary On June 27, 2019, the Authority Board approved a contract with Curtis Allan to replace damaged, deteriorated, or inefficient flooring throughout all Authority Properties for an initial three (3) year term (July 1, 2019 - June 30, 2022). The Agreement allows the parties to extend the effective period for an additional two (2) one-year terms. The current Contract uses Curtis Allan under the NCPA Agreement Contract No. 02-60 with Engineered Floors (dba J+J Flooring Group and dba EF Contract) (“Engineered Floors”) as the primary vendor for purchases of various floor coverings (“Flooring”), installation and related supplies, equipment and services at the Authority Properties. By authorizing the use of Curtis Allan for the Authority Properties, the staff and RPM are able to establish an account to procure, deliver, install and whenever appropriate, haul away and recycle inefficient, damaged, deteriorated flooring and any other related supplies, equipment and services more expeditiously and maintain continuity in the Flooring during the term of the Agreement. Staff recommends that the Authority continue to contract with Curtis Allan and extend the term for the additional two (2) one- year terms. Background Analysis To operate more efficiently and effectively, the Authority entered into a Contract with Curtis Allan as a supplier through Engineered Floors’ government purchasing Contract No. 02-60 under the NCPA for the purchase, delivery, installation and related supplies, equipment and services and whenever appropriate, removal and recycling of flooring materials during the term of the contract in an annual amount not to exceed $125,000. The Authority’s annual procurement with Curtis Allan includes purchasing of various flooring materials (i.e., vinyl, carpet, carpet tile, tile, etc.), installation, ancillary flooring materials (i.e., underlayment, adhesives) and other related supplies, equipment and services. In addition, the Authority uses Curtis Allan as necessary to complete repairs and non-warranty services which include partial replacements, repairing seams, stretching, etc. Page 136 Contract No. HA38931 April 28, 2022 – STAFF REPORT Housing Authority – Amendment to Curtis Allan contract Page 3 of 4 This request will extend Curtis Allan’s Contract at Authority Properties beginning July 1, 2022 through June 30, 2024, and increase the annual not to exceed amount to $250,000 (for a total not to exceed amount of $500,000 for the two years). The Contract fee is based on the cooperative pricing under the NCPA contract (A copy is on file with the City of Palm Desert’s City Clerk’s Office). With the necessary replacements, repairs and reasonable ADA accommodation requests, the annual not to exceed amount being requested will meet the needs. Any additional increases that may occur during the term of the contract will be pursuant to the terms of the NCPA contract including any prevailing wage adjustments to labor installation rates. The Authority entered into Contract with Curtis Allan as a supplier through Engineered Floors’ and Mohawk Carpet Distribution, Inc. (“Mohawk”), each in the amount of $125,000 under a government purchasing contract. Mohawk’s pricing and quality of the product declined in the past year and staff stopped using Mohawk as a supplier and does not propose to renew that contract further. The increase to Engineered Floors’ contract is to continue to meet the needs of all the Authority Properties. Under the provisions set forth in the City of Palm Desert Municipal Code (“Municipal Code”), Section 3.30.160 (L), the Authority may obtain routine and recurring services, supplies, and maintenance by adopting a procedure approved by the City Manager. The procurement of Flooring and related supplies and services solicited from Curtis Allan, have been accepted as routine and recurring. Further, the provisions of the Municipal Code Section 3.30.160 (E), allow the Authority to participate as a government entity with the NCPA Agreement Contract No. 02-60 (Active from 8/6/2018 – 8/31/2020; a copy is on file with the City of Palm Desert’s City Clerk’s Office, as amended thereafter.). Curtis Allan has confirmed it will provide to the Authority, as a participating entity, the services pursuant to the NCPA contract terms, products, product warranty, services, and pricing. The type of services being requested require day-to-day responses, staff is recommending that the Authority Board authorize staff and RPM to procure the needed services as provided in the Contract with Curtis Allan. Being that Curtis Allan has been performing satisfactorily under its current Contract obligations, staff recommends that the Authority Board approve the Amendment to Contract No. HA38930 with Curtis Allan, for the procurement of these services with Engineered Floors products for the remaining two (2) one-year terms for Properties, effective July 1, 2022 through June 30, 2024. The Contract will be in a total annual amount not to exceed $250,000 including any non-warranty partial replacements and repairs. Fiscal Analysis The fiscal impact to the Housing Authority of the Amendment extending the term of the Agreement is the same as it is currently. Although there has been a slight increase in Page 137 Contract No. HA38931 April 28, 2022 – STAFF REPORT Housing Authority – Amendment to Curtis Allan contract Page 4 of 4 the per property per month cost, staff believes the not to exceed amount is sufficient to accommodate the needs of the Properties for the extended term of the Agreement. Actual expenditures will be paid from the monies that have been included in the proposed FY 2022/2023 Housing Authority operating budget, in the appropriate accounts. CONTRACTOR: Curtis Allan Floorcovering, Inc. 132 West 8th Street National City, CA 91950 ATTACHMENTS: 1. Curtis Allan Floorcovering, Inc., Letter Confirming NCPA participation 2. Draft HA38931 Amendment, Curtis Allan Floorcovering, Inc. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Special Counsel to the Authority Martin Alvarez Martin Alvarez Director of Development Services Department Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager e Director, Todd Hileman: L. Todd Hileman Page 138 Page 139 Contract No. HA38931 PALM DESERT HOUSING AUTHORITY AMENDMENT TO PROCUREMENT OF FLOOR COVERINGS AND RELATED SUPPLIES, EQUIPMENT AND SERVICES CONTRACT NO. HA38930 1. Parties and Date. This Amendment No. 1 to the PROCUREMENT OF FLOOR COVERINGS AND RELATED SUPPLIES, EQUIPMENT AND SERVICES AGREEMENT is made and entered into as of this 28th day of April, 2022, by and between the Palm Desert Housing Authority (“Housing Authority”) and CURTIS ALLAN FLOORCOVERING, INC., a Corporation with its principal place of business at 3035 Palisades Drive, Corona, California 92880 (Contractor). The Housing Authority and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.” 2. Recitals. 2.1 Agreement. The Housing Authority and Contractor have entered into an agreement entitled Procurement of Floor Coverings and Related Supplies, Equipment and Services Agreement dated June 27, 2019 (“Agreement” or “Contract”) for the purpose of retaining the services of Contractor to provide Flooring Services for the Housing Authority properties. 2.2 Amendment. The Housing Authority and Contractor desire to amend the Agreement for additional compensation and extend the term. 2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Section 2.3 of the Agreement. 3. Terms. 3.1 Term. Section 2.2 of the Agreement is hereby amended in its entirety to read as follows: The term of this Agreement shall be from July 1, 2022 to June 30, 2024, unless earlier terminated as provided herein. 3.2 Compensation. Section 2.3. of the Agreement is hereby amended in its entirety to read as follows: 3.2.1 Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "B" of the Agreement and attached hereto and incorporated herein by reference. The total compensation shall not exceed Two Hundred and Fifty Thousand and 00/100 ($250,000) (for a total not to exceed amount of $500,000 for the two years) including non- warrantee partial replacements and repairs without written approval of Housing Authority’s Executive Director. Extra Work may be authorized, as described below, Page 140 Contract No. HA38931 Page 2 of 4 Revised 11-2-20 BBK 72500.00001\32445060.1 and if authorized, will be compensated at the rates and manner set forth in this Agreement or as agreed to by the Parties in writing. 3.4 Continuing Effect of Agreement. Except as amended by this Amendment No. 1 all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1. 3.5 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1. 3.6 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.7 Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Page 141 Contract No. HA38931 Page 3 of 4 Revised 11-2-20 BBK 72500.00001\32445060.1 SIGNATURE PAGE FOR AMENDMENT NO. 1 TO PROCUREMENT OF FLOOR COVERINGS AND RELATED SUPPLIES, EQUIPMENT AND SERVICES CONTRACT NO. HA38930 BETWEEN THE PALM DESERT HOUSING AUTHORITY AND CURTIS ALLAN FLOORCOVERING, INC. IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 to the Flooring Services Agreement as of the day and year first above written. PALM DESERT HOUSING AUTHORITY Approved By: Jan C. Harnik Chairman Attested By: Anthony J. Mejia, Secretary Approved As To Form: By: Best Best & Krieger LLP City Attorney CURTIS ALLAN FLOORCOVERING, INC. Signature Name Title Signature Name Title Page 142 Contract No. HA38931 Page 4 of 4 Revised 11-2-20 BBK 72500.00001\32445060.1 Exhibit B SCHEDULE OF SERVICES This Contract includes and hereby incorporates in full by reference the Schedule of Services as provided in the NATIONAL COOPERATIVE PURCHASING ALLIANCE Agreement for Flooring & Outdoor Surfaces Solutions Contract No. 02-60, with Engineered Floors, LLC {dba J+J Flooring Group and dba EF Contract) (the "Piggyback Contract), and the respective Request for Proposal issued June 12, 2018, and any amendments thereof. Page 143 [This page has intentionally been left blank.] Page 144 STAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: April 28, 2022 PREPARED BY: Debra Alleyne, Management Analyst REQUEST: Recommend approval of the San Pablo Public Art Development Plan ______________________________________________________________________ Recommendation By Minute Motion, recommend approval of the San Pablo Public Art Development Plan. Committee Recommendation At its meeting on April 13, 2022, the Cultural Arts Committee voted to approve the San Pablo Public Art Development Plan by a 5-0-1 vote with Adney, Boren, Flint, Hauer, and Higgins voting AYE and Harding ABSENT. Strategic Plan Objective Palm Desert’s public art program, particularly the El Paseo Sculpture Exhibition, is in line with the Arts & Culture Mini-Vision contained in the Strategic Plan, which states: “Arts and culture give a community its soul. Palm Desert is the cultural core of the Coachella Valley. Cultural tourism drives economic growth in Palm Desert. The community is host to internationally recognized cultural events that bring significant economic benefits to the City. Palm Desert is a leader in arts education, ensuring a well-rounded population that possesses high levels of creativity and critical thinking skills.” Background In 2020, the Art in Public Places (AIPP) Commission/Cultural Arts Committee (CAC) began discussing the need for a San Pablo Public Art Development Plan to bring aesthetic continuity to the newly designed downtown area. The Commissioners were asked to consider the character of the area, artistic mediums appropriate for the site, as well as potential locations for placement of public art. Subsequently, a subcommittee was formed consisting of Commissioners Adney, Miller, and Myrland. They met three times to discuss appropriate and applicable public art options for the San Pablo area. Emerging from the discussions of the subcommittee, Chair Myrland drafted the San Pablo Public Art Development Plan. Page 145 April 28, 2022 – Staff Report San Pablo Public Art Development Plan Page 2 of 2 On January 24, 2022, the Cultural Arts Committee held a Study Session to discuss the draft plan. It was determined that the plan should articulate a clear vision while being flexible enough to include new and unforeseen public art opportunities. Staff worked to incorporate recommended changes to the plan over time and the final plan was approved by the Committee on April 13, 2022. The plan, which will serve as a guide for implementation of public art long the San Pablo corridor, includes the following sections: - Introduction - Vision - Mission - Goals - Priorities - Potential Locations - Potential Partners - Future factors affecting San Pablo’s Public Art Plan - Concepts and Design Guidance Material While the San Pablo Improvement Project was completed in two phases, this plan does not prioritize artwork in one phase or another. The idea is to install cohesive artwork organically in strategic locations over time by working with various partners and the community through civic engagement. Fiscal Analysis While there is no cost associated with adoption of the San Pablo Public Art Development Plan, the budget to implement projects will be reviewed annually. Specifically, in FY 2021/2022, the City Council approved funding in the amount of $200,000 for the Phase I roundabout sculpture, as well as $50,000 for various other projects such as murals, decorative fencing, and community projects. Additionally, staff is requesting $200,000 for FY 2022/2023 to install a sculpture in the phase 2 roundabout. Funds for all projects will be available in the public art fund. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Robert W. Hargreaves City Attorney Andy Firestine Andy Firestine Director of Public Works Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager L. Todd Hileman, City Manager: L. Todd Hileman APPLICANT: None ATTACHMENTS: Draft San Pablo Public Art Development Plan Page 146 City of Palm Desert San Pablo Public Art Development Plan Adopted April 28, 2022 Page 147 Page 1 San Pablo Public Art Development Plan Table of Contents Introduction Vision Mission Goals Priorities Potential locations Potential partners Future factors affecting San Pablo’s Public Art Development Plan Concepts and Design Guidance Material Page 148 Page 2 INTRODUCTION Palm Desert, population 52,575, is the geographic heart of the Coachella Valley, located midway between Palm Springs to the west and Indio to the east. Blending elements of both along with its own upscale touch, Palm Desert offers a balance of nature and culture. Incorporated in 1973, this relatively young city is transitioning from a retirement community, largely dependent on seasonal residents, to a more diversified and year-round economy. As part of this process, city leaders, staff and committees/commissions are engaging in focused placemaking, building on what exists and imagining the future. For many years, Palm Desert was defined primarily by El Paseo, a retail and restaurant district stretching approximately one mile from Highway 74 to Portola Avenue, with two shorter sections on either end. Filled with art galleries, high -end shops and restaurants, the centerpiece of El Paseo is a rotating exhibition of public art, running continuously since 1993, and featuring 18 sculptures by international artists. El Paseo also hosts parades, festivals, special events and intimate outdoor concerts. In this sense, it functions as the genesis of a downtown or central core. In 2013, more than 130 residents, business owners and policymakers came together to develop a strategic plan, “Envision Palm Desert —> Forward Together, 2013-2033.” This document led to a General Plan Update which was adopted in 2016. “Envision Palm Desert” speaks to the desire for “new energy and excitement,” maintaining the city’s stature as a responsible steward of natural resources, educational hub and international resort destination, while expanding and attracting new visitors and residents through well- designed housing, walkable neighborhoods, business opportunities, and a variety of arts, culture and entertainment. A high priority is to develop a city center that broadens the success of El Paseo, reaching out to younger people and families. “A dedicated city center will attract visitors and residents to a central locale for shopping, dining, and events while fostering a climate of Page 149 Page 3 social interaction. Also, a city center will help expand nightlife options, especially important as the city works to attract and retain youth.” Envision Palm Desert —> Forward Together, 2013-2033 Over the next few years, the San Pablo Corridor is expected to become that city center. Originating south of El Paseo and Highway 111, San Pablo Avenue travels north through mixed-use development, residential areas, City Hall/Civic Center Park, and College of the Desert, terminating at Magnesia Falls Drive. The Corridor has undergone significant improvements that included narrowing streets and creating roundabouts to slow traffic; installing wider sidewalks, shade trees and street furniture; developing an area for events; and enhancing the community gardens. This plan covers the next step — creating a unified appearance and activating the area through public art. VISION A thriving, vibrant downtown where art is the predominant element, unifying the San Pablo Corridor from Highway 111 to Magnesia Falls Drive, providing a sense of community identity, and tying into Palm Desert’s aspirations to be a city of health and wellness as well as the leading educational hub in the region. The vision of the San Pablo Corridor is to become the nexus as described in the city’s 2013-2033 Strategic Plan — a true downtown where restaurants, nightlife, shopping, mixed-use buildings, arts and culture converge: a gathering place for residents and visitors. The city has established the framework through significant street redesign. The next step will be to activate the area through special events and public art in the broadest sense: placemaking, sculpture, eye-catching murals, interactive elements that invite community participation, and hidden gems inspiring delight and discovery. Creating and maintaining a fresh, dynamic atmosphere also calls for temporary installations, performance, and partnerships with local artists, galleries, and arts organizations. Page 150 Page 4 “We want places for our residents and visitors to congregate, especially for commerce and socializing. Lively city centers are the physical forum for gathering, business, shopping, and the exchange of ideas…. Landscaping, street furnishing, wayfinding and public ar t will transform streetscapes and public open spaces of the City Center into a place of unique and unrivaled comfort and beauty. ” — Palm Desert General Plan, 2016 Of particular note, one vision that emerged from the Strategic Plan was that San Pablo would become an arts district with live/work lofts for artists as well as flexible gallery/performance/studio space. Arts districts can be an economic development tool for developing communities. They’re trendy, popular and they provide character. In practice, they require significant commitment by both the public and private sector that may not be available or feasible at this time. Therefore, at this time, this plan will focus on San Pablo being a thriving, vibrant downtown area where art is the predominant element, unifying the San Pablo Corridor from Highway 111 to Magnesia Falls Drive, providing sense of community identity, and tying into Palm Desert’s aspirations to be a city of health and wellness as well as the leading educational hub in the region. Page 151 Page 5 MISSION To become part of a unified central core of Palm Desert, offering a welcoming, casual, urban, family-friendly environment that will be the embodiment of community, playfulness, activity, ingenuity, and excitement. GOALS As a part of this living document the goals listed for San Pablo Public Art Development Plan include artistic, community engagement, and time-based goals: •To strengthen a sense of community identity through the use of strategically placed innovative public art. •To establish and maintain relationships with local business owners for their buy in to San Pablo Public Art Development Plan that will culminate in partnership for the installation of public art on private property. •To solicit community input through civic engagement (particularly when artwork would be situated adjacent to homes), for example, including artistic elements at the community gardens in partnership with residents, school districts and other local organizations. •To engage with the local youth and teen population for input on relevant installations meant to engage that demographic. •To keep informed of relevant zoning as it relates to building height to ensure that commissioned artwork is appropriately scaled. •To develop and update budget annually. •To evaluate, reevaluate, and/or select appropriate locations annually. Page 152 Page 6 PRIORITIES •Artworks appropriate in scale are necessary to create a sense of place and be a predominant element in this busy, outdoor, urban/residential area. •The viewing experience of the artwork must be optimal at all times of the day and night. •Fewer, larger works of high quality are preferable for greater impact .Color is encouraged to attract and heighten visual impact. •Works in this area should create/encourage spaces for seating, gathering and shade. •Works need to be visible at night either by lighting, or being light sources themselves, without infringing on surrounding neighborhoods. •Use placemaking to create opportunities for involvement and interactivity •Include multiple and nontraditional artforms including but not limited to: poetry, dance, performance and music. •Use of nontraditional media including tech based, light based, zero waste, kinetic and interactive art Page 153 Page 7 POTENTIAL LOCATIONS 1.Roundabout at San Pablo and San Gorgonio/De Anza Way (in progress). 2.Roundabout at San Pablo and the east entrance to College of the Desert. 3.Locations along San Pablo Phase 2 between Fred Waring and Magnesia Falls. 4.Entry signage or gateway spans.* 5.North-facing wall of Circle K (mural on private property; requires permission). 6.North- or west-facing wall of Clubhouse Liquor and Deli (mural on private property; requires permission). 7.Community gardens including gates, walls and landscaped strip separating gardens from sidewalk. 8.Artistic screening between homes and pocket parks sited at Guadalupe Avenue, Catalina Way and San Nicholas Avenue (design should involve residents.) 9.Empty lot at San Pablo and De Anza Way (temporary art or performance; requires property owner permission). 10.Selected retaining walls, primarily between Highway 111 and San Gorgonio Way. 11.Sidewalks used as canvases for poetry or artwork. 12.Coachella Valley Water District (CVWD) wall at San Pablo and Royal Palm (requires easement with CVWD). 13.Utility boxes. 14.Wall behind Christ of the Desert Church (mural on private property; requires permission). 15.Palma Village Park. 16.Redoing crosswalks as needed. * Entry signage and gateway spans will be determined by the Public Works Department, however, they should be consistent with the overall ae sthetic. The Cultural Arts Committee can provide guidance and input in this process. Page 154 Page 8 POTENTIAL PARTNERS INCLUDING BUT NOT LIMITED TO •College of the Desert / Walter N. Marks Center for the Arts •California State University, Palm Desert Campus •University of California, Riverside - Palm Desert Center •McCallum Theatre •Palm Desert galleries •Arts organizations such as CREATE, the Artists Council, CA Desert Arts Council •Dance/music groups in or around Palm Desert •Joslyn Center •Local media •Palm Springs Art Museum •Palm Desert Historical Society •Agua Caliente Band of Cahuilla Indians •Living Desert •Desert Recreation District •Family YMCA of the Desert •Desert Sands Unified School District FUTURE FACTORS AFFECTING SAN PABLO’S PUBLIC ART DEVELOPMENT PLAN 1.Development of vacant lots at San Pablo/De Anza, and San Pablo/Fred Waring. 2.Installation of gateway spans projected to use a “desert palette” as defined by the 2016 General Plan. Proposed materials include Corten steel, glass mosaic, concrete column bases and landscape materials. 3.Installation of monuments and signage. 4.Rezoning to three or more stories. Page 155 Page 9 CONCEPTS AND DESIGN GUIDANCE MATERIALS EXISTING PALETTE AS DEFINED BY STREETSCAPE Page 156 Page 10 Page 157 Page 11 Page 158 STAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: April 28, 2022 SUBMITTED BY: Amy Lawrence, Special Programs Manager REQUEST: Recommend Deaccession of the Desert Flower and Desert Star Sculptures ______________________________________________________________________ Recommendation By Minute Motion, deaccession the Desert Flower and Desert Star Sculptures. Deaccession Committee Recommendation At its meeting on April 13, 2022, the Cultural Arts Committee voted to approve deaccession of the Desert Flower and Desert Star sculptures by a 5-0-1 vote with Adney, Boren, Flint, Hauer, and Higgins voting AYE and Harding ABSENT. Background In 1990, the City of Palm Desert commissioned Connecticut based artist Robert Perless to fabricate the kinetic wind catching Desert Flower and Desert Star sculptures for a total cost of $30,000. In 1991, these site-specific sculptures were installed in the atriums at the Parkview and State buildings on the Civic Center campus. Between the time of install and up until February 2022, the City paid for annual cleaning, inspection, and maintenance of the sculptures. In 2008, the City contracted with Imperial Signs to refurbish the sculptures in consultation with the artist at a cost of $14,995. Discussion On Tuesday, February 15, 2022, during a windstorm, a portion of the 31-year-old sculpture at the Parkview building detached and landed in a group of palm trees within the courtyard. According to the City’s public art maintenance contractor, the reason the sculpture collapsed was because water corroded the bolts over time causing them to lose integrity and break in the heavy wind. For that reason, both sculptures were considered compromised and dangerous. Due to the eminent danger the suspended artwork posed, staff sought the direction from the City Manager and the City Attorney Page 159 April 28, 2022 – Staff Report Deaccession of Desert Flower and Desert Star Page 2 of 2 and both pieces were removed by the City’s public art maintenance contractor on February 28, at a cost of $8,500. Upon removal of the artwork, the contractor documented and photographed all steps of the deinstall and provided individual reports on each to staff. Upon discussion with the public art maintenance contractor, who has 20 years of experience in this field, he believed that there were several causes which compromised the integrity and safety of the artwork and recommended against reinstalling the work. Furthermore, the cost to reevaluate the artwork, repair and reinstall would be prohibitive, potentially exceeding $20,000. Given the professional evaluation, age of the installation, and the site-specific nature of the work, staff recommends that in keeping with best practice collections management per the Public Art Deaccession Policy adopted by the City Council on June 12, 2003, that the artworks titled Desert Flower and Desert Star be permanently deaccessioned from the City’s collection. In accordance with the policy, this artwork meets the following criteria for deaccession: 1. It has been in place for more than 15 years. 2. It was acquired through the Art in Public Places Program. 3. The artwork has been damaged or deteriorated and is deemed as not being cost effective to repair. 4. The condition or security of the artwork cannot be reasonably guaranteed. 5. Due to unforeseen causes the artwork has become potentially hazardous to the public. Per the sequence of action section of the policy, on February 17, 2022, staff contacted the artist via phone and email to inform him that the artwork had been damaged during a windstorm. The following day staff informed the artist that the artwork would be removed in its entirety for safety reasons. On March 30, 2022, staff emailed the artist to inform him of the decision to deaccession the work and offered him the option to reclaim the work by purchasing it from the City for the initial purchase price of $30,000, which he declined. Staff received approval from the City Attorney to proceed with deaccession of the work and completed the attached worksheet. Due to the site-specific nature of this artwork, it would be difficult to move the artwork to a different location or sell it. As such, the only feasible deaccession method would be to either dispose of the work in an appropriate manner or donate the materials for reuse. Fiscal Analysis While the initial cost of the artwork was $30,000, the City paid $14,995 to refurbish it and $8,500 to remove the artwork after it was damaged. Staff has no record of current fair market value of this site-specific work. As noted, the cost of reevaluation of the artwork, repair and reinstall would be prohibitive and is likely to exceed $20,000. As Page 160 April 28, 2022 – Staff Report Deaccession of Desert Flower and Desert Star Page 2 of 2 such, staff hereby recommends deaccession of the artwork as it has been deemed not cost effective to repair (and re-install). LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Robert W. Hargreaves City Attorney Andy Firestine Andy Firestine Assistant City Manager Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager L. Todd L. Hileman, City Manager: L. Todd Hileman APPLICANT: None ATTACHMENTS: Deaccession Policy Deaccession Worksheet Deinstallation photos and notes on damaged artwork Page 161 City Of Palm Desert Public Art Deaccessioning Policy POLICY Although the City of Palm Desert would like its public art to remain in situ for a minimum of 15 years (although 15 years is not a limit on the life of an artwork), it recognizes that public artwork is not necessarily going to remain there in perpetuity. Deaccessioning is the formal process by which objects are permanently removed from the Art in Public Places collection through transfer, donation, loss, sale, or involuntary destruction. Adverse public opinion does not justify the relocation or removal of permanently installed artwork. The consideration for deaccessioning a work of art shall involve the same degree of careful review as a decision to commission or purchase a work of art. All deaccessioning procedures must be in compliance with the Federal Visual Artists Rights Act (VARA). ELIGIBLE ARTWORK All artwork acquired through the Art in Public Places Program or through donation are eligible. In the case of donated artwork, all legal documents surrounding the donation must be reviewed and a legal opinion rendered by the City Attorney before proceeding with the deaccessioning process. CRITERIA FOR DEACCESSIONING: 1. The artwork has been damaged or deteriorated, and is deemed as not being cost effective to repair. 2. The condition or security of the artwork cannot be reasonably guaranteed. 3. In the case of site-specific artwork, the artwork is destroyed by severely altering its relationship to the site. 4. Due to unforeseen causes the artwork has become potentially hazardous to the public. 5. The owner is no longer able to continue to properly maintain, preserve or care for the work. 6. The owner desires to change the use of the property on which the artwork is located, and the artwork therefore becomes an obstacle. 7. The work has been found to have been falsely documented, decried or attributed and/or to be a forgery. SEQUENCE OF ACTION 1. The Art in Public Places staff/artwork owner will make reasonable effort to notify and consult with any living artist(s) whose work is being considered for deaccessioning as to the best procedure for the removal of the work. The City must allow the artist(s) 30 days to respond. 2. In the case that the artist(s) have deceased, their estate should be contacted. 3. The artist(s) should be given the first rights of purchase. If the artist(s) decide to purchase the work, s/he/they will be responsible for the cost of the removal of the work from the current site. If the artist(s) have deceased the legal heir(s) will have first rights of purchase. If it is a City project, the artist(s) can purchase the artwork at the original commission price. 4. For City projects, after communicating with the artist(s), City staff will contact the City Attorney with its plans for how to proceed with the deaccessioning. 5. Once approved by the City Attorney, City staff/artwork owner needs to fill out the appropriate Deaccessioning Worksheet. 6. From this worksheet, City staff will write a staff report addressing the proposed removal of the artwork. Included in the staff report should be the following: Page 162 5/21/2003 2 a. The reason for the deaccessioning of the artwork. b. Cost of removal. c. If appropriate, record of independent assessment and valuation of the artwork. d. Record of the communications with the artist(s). e. Suggested method of removal (demolition, donation, sale, etc.) f. Original cost of artwork. g. If appropriate, current fair market value of the work. 7. The staff report will then be put on the Art in Public Places Commission’s agenda for a regularly scheduled meeting, where it will be reviewed and voted on. 8. If the Art in Public Places Commission approves the deaccession, City staff will bring the staff report before City Council for review and action. 9. After approval, all records need to be updated to reflect the deaccessioning of the work. 10. The deaccessioning process should be documented in both written and visual form. 11. If a City owned artwork is sold, proceeds should be deposited into the Art in Public Places fund. If a private developer piece is sold, the funds must be used to purchase a replacement work of art. 12. If a privately owned work is deaccessioned, the artwork owner has ninety (90) days to install a new, approved piece at the same location. If the new work is not installed within ninety days of the removal of the original piece, then the City has the right to revoke the location’s Certificate of Occupancy permit. If the owner anticipates the need for longer than ninety days s/he must petition the City for an extension before the 90 days expire. 13. All expenses related to the deaccessioning of a privately owned work of art are the responsibility of the artwork owner. 14. If it is a privately owned artwork, the owner must notify the Public Arts Manager when the deaccessioning process is complete. 15. If it is a City owned artwork, the City’s Risk Manager must be notified so that the work can be taken off the City’s insurance policy. DEACCESSIONING METHOD OPTIONS 1. If appropriate, every effort should be made to move the work to a new location (see the City of Palm Desert Public Art Relocation Policy). 2. Sell or trade of work either through auction, gallery resale or direct sale and put funds back into the Art in Public Places Fund. 3. Put the work in storage until a new, appropriate location can be found. 4. Donate work to a school, an educational or non-profit organization. 5. Dispose of work in an appropriate manner. Page 163 City of Palm Desert Public Art Deaccessioning/Relocating Worksheet Artist: Robert Perless Title: Desert Flower and Desert Star Location of work: 73710 Fred Waring (Desert Flower) / 73720 Fred Waring (Desert Star) Name of property: Parkview and State buildings on the Civic Center campus Contact name: Robert Perless Phone: 203-869-0710 Extension: N/A FAX: N/A Property owner at the time of commission: City of Palm Desert Year commissioned/purchased: 1990/1991 Art in Public Places fee: $30,000 Dimensions: Height: N/A Width: N/A Depth: N/A Weight: N/A Estimated current fair market value: Not available Source of estimation: N/A Proposed deaccession reviewed by City Attorney: Yes: X No: Detailed reason for deaccessioning object: The artwork has been damaged or deteriorated and is deemed as not being cost effective to repair. Specifically, it was determined by the City’s public art maintenance contractor that a majority of the bolts holding the artwork together had been corroded or were broken due to weep holes not being drilled into the tubes to eliminate water build-up. This resulted in the tubes filling with water causing the bolts to corrode over time. It was further determined that there was a potential engineering flaw on the top piece of Desert Star located at the State building. Specifically, because the artwork moved with the wind, it eventually dented and flattened the aluminum collar so much so that one of the bolts holding the work up had completely broken off. Proposed deaccessioning method: Artist was offered first right of purchase and declined. Therefore, because the artworks are site specific and cannot be donated or sold, the materials will be disposed of in an appropriate manner. New location for work (if it is being moved): N/A Condition: Excellent Good X Fair Poor Maintenance evaluation: See reason for deaccessioning noted above. Page 164 Desert Flower Desert Star Deinstall Photos and Notes Component 2 Desert Flower On the second piece the bolts were completely corroded. It had water inside like a cup. So removing this was mandatory as well. We are working on the third one. As we were doing it the corroded bolts simply broke. So that one was probably the next to fall. So far everything is going exactly as planned as far as the valuation of the top element will probably know by around 11 AM. Still has water - after the removal. #2 Page 165 Page 166 Component 3 Desert Flower 3rd from CVAG. Water in the bottom like a cup. The bolts were corroded and “broken”. Page 167 Page 168 Page 169 Component 6 Desert Flower Same as before. Water in the cup. Heavy corrosion. One bolt was completely broken. Noticed the large gouge and how half of the bolt is already kind of cut through on the second one. This one was truly the next to fall. Page 170 Page 171 Component 4 Desert Flower Here’s a new one. Where the aluminum and steel connect - are fused together. We had to severe the aluminum to remove on this one. The bolts are stainless steel and in great condition. It appears that this one would have not been at any risk of falling. It was doing exactly as the artist had planned. Was no danger to public below. It’s not possible to give the correct evaluation of the upper elements in place. And we now have confirmed that there are (2) different materials used (screws) to install. We will be taking down the Page 172 entire piece - top and bottom. Any other way could be negligent on our part. So safety first. Page 173 Page 174 Page 175 Page 176 Page 177 Component 6 Desert Flower The aluminum and steel refused together similar to number four. However the bolts had corrosion but not as much physical damage compared to the others. But not the same condition as number four stainless steel. Definitely only option was to remove to be on the safe side at that point. Page 178 Page 179 Component 1 Desert Star The bottom element that was installed allowed water to release and not Pool up to create as much corrosion. The hardware was not stainless steel. But even though it was galvanized/zinc it was in good condition. However we go to the top element does have a cap. And that alone is flag enough to remove. Page 180 Page 181 Page 182 Component 2 Desert Star These pictures alone are reason enough to remove the entire piece. A month or two ago when we did our last service on this we inspected everything all bolts were in place everything was fine. After the big windstorm which put this entire thing in motion we can now see that the top element only has one bolt holding it. The second one broke off! The pictures tell us why. The way the piece is able to move with the wind allows it to go far enough to touch the bolts on the round aluminum collar. This has dented and flattened the collar. And actually bends the bolt. So much one of the broke. For this reason alone. It must come down. Page 183 Page 184 Page 185 Page 186 STAFF REPORT CITY OF PALM DESERT DATE: April 28, 2022 PREPARED BY: Eric Ceja, Director of Economic Development REQUEST: Request for approval of out-of-state travel for the City Manager, Finance Director, and Director of Economic Development, to visit with staff from the City of Westminster, Colorado on May 17, 2022 Recommendation By Minute Motion, approve the request for out-of-state travel to Westminster, Colorado, for the City Manager, Finance Director, and Director of Economic Development. Funds are available in each of the appropriate department travel accounts. Discussion In 2010, the City of Westminster, Colorado, acquired 105-acres of a struggling mall site within its city. Ultimately a Specific Plan for redevelopment of the site was adopted in 2014, and today, the City is seeing new development and interested in developing a “downtown” Westminster at the site inclusive of new: mixed-use buildings, affordable housing, and retail. Nationally, Westminster is recognized for its unique approach in redeveloping the former mall site. As the City of Palm Desert develops its strategy and approach to redevelopment of the mall site, it is important to learn from jurisdictions with similar experience. As such, the City Manager, Finance Director, and Director of Economic Development, are able to secure a meeting with Westminster’s City Manager, Finance Director and key development team staff for a two-day visit on Monday, May 16-17, 2022. The intent of the visit is to better understand the strategy, approach, financing mechanism, and best practices implemented in Westminster. Fiscal Analysis The estimated cost for travel and per diem is $850 per person. Funds are available in the FY 2021/22 budget in each of the department travel accounts. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Robert W. Hargreaves City Attorney Eric Ceja Eric Ceja, Director of Economic Development Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager/Public Works Director City Manager L. Todd Hileman: L. Todd Hileman Page 187 [This page has intentionally been left blank.] Page 188 STAFF REPORT CITY OF PALM DESERT CITY MANAGER’S OFFICE MEETING DATE: April 28, 2022 PREPARED BY: Robert Hargreaves, City Attorney, Best Best & Krieger, LLP REQUEST: Adopt Ordinance Amending and Updating Various Sections of the Palm Desert Municipal Code Recommendation By Minute Motion: Introduce, by title only, an Ordinance entitled: An Ordinance of the City Council of the City of Palm Desert, California, Amending and Updating Various Sections of the Palm Desert Municipal Code. Background Every year, the City Attorney works with City Staff to identify and correct or update Municipal Code provisions. The amendments and updates remove outdated language, ensure conformance with state law, are in the public interest, are consistent with the City’s General Plan, and will not be detrimental to the public health, safety, and welfare. Discussion This staff report provides a brief summary of the various proposed edits to the Palm Desert Municipal Code. Massage Establishments and Practitioners The proposed Ordinance includes several edits to the Massage Establishments chapter (Chapter 5.87) of the Municipal Code to ensure compliance with Assembly Bill 1147 and to streamline the permitting process. The City may require a massage establishment owner, including a sole provider or independent contractor who is California Massage Therapy Council (CAMTC) certified, to obtain a business license, and/or massage permit or other entitlement to carry on the business of massage therapy. (Gov. Code, § 51034(c)(8).) The existing Municipal Code provisions require massage establishments to obtain both a massage establishment operating permit and a City business license. The proposed Ordinance simplifies the process by requiring potential operators to obtain a single business license specific to Page 189 April 28, 2022 2022 Municipal Code Update Ordinance Page 2 of 4 massage establishments. This update is in conformance with state law and also assists staff with issuing massage establishment business licenses in a uniform and streamlined manner. As such, language throughout the chapter has been updated to reflect this change. While the City may require massage establishment operators to obtain a City business license, the City may not require a CAMTC-certified massage therapist employee to obtain any kind of license or permit or submit to a background investigation. (Gov. Code, § 51034(c)(8).) Therefore, practitioner background check requirements have been removed from the Massage Establishments chapter. In the same vein, the proposed Ordinance repeals the Massage Practitioners chapter (Chapter 5.90) in its entirety because it currently requires CAMTC-certified individuals to obtain a City permit, which has a background check requirement. These provisions are no longer allowed under AB 1147. Therefore, the chapter should be repealed to ensure consistency with state law. The proposed Ordinance also requires massage establishments to employ CAMTC- certified professionals only and provide proof of certification to the City. This way, the City can ensure that all practitioners working in the City are certified by the state. Outdoor Lighting The current Code allows high pressure sodium (HPS) lamps to be used for outdoor lighting. However, cities are phasing out HPS fixtures and switching over to more efficient light emitting diode (LED) fixtures, which provide better lighting with a much lower power requirement, reduce light pollution, improve visibility, and contribute to increased safety. The proposed Ordinance updates Chapter 24 Outdoor Lighting to prohibit HPS lamps, thereby requiring new construction or replacement street lighting to use LED lighting. Additionally, the current Code regulates outdoor lighting in terms of lumens, but does not provide standards for color temperature, which is measured in Kelvin. Lumens is a measurement of total light output, i.e. the brightness of the bulb. Kelvin is a measurement used to describe the color temperature of a light source. This is the specification that gives a description of the warmth or coolness of a light source. The proposed Ordinance updates Chapter 24 to standardize and limit the maximum Color Correlated Temperature (CCT) for all outdoor lighting to four thousand (4000) Kelvin. The proposed maximum color temperature of 4000 Kelvin CCT is a mid-range limit that would preclude the bluest light sources from being installed and minimize blue light impacts, like increased glare, and disruption of wildlife and circadian rhythms. Page 190 April 28, 2022 2022 Municipal Code Update Ordinance Page 3 of 4 Parcel Map Waiver Process The proposed Ordinance updates the Parcel Map Waiver chapter (Chapter 26.34) such that the applications are filed with the Development Services Department and City Engineer rather than the department of environmental services, which is an outdated reference. Additionally, the proposed Ordinance authorizes the Development Services Director to review and approve applications, rather than the planning commission, which can save time and resources, since minor property line adjustments may be handled administratively pursuant to the Subdivision Map Act. Building Pad Elevation The proposed Ordinance would authorize the City Engineer to review and the Director of Development Services (“Director”) to approve pad elevations that vary more than six inches from the previously approved map. The Director may refer the request to a public hearing process for approval, as needed. This proposed revision allows the Director to administratively approve appropriate pad elevation changes with input from the City Engineer, which can streamline the process, thereby saving time and resources. HOA Definition The proposed Ordinance also would add a definition of “Homeowner’s Association” to Chapter 5.10. On December 10, 2020, the City Council adopted Ordinance No. 1360 approving amendments to Palm Desert Municipal Code (PDMC) Chapter 5.10 Short-Term Rentals (STRs) related to Planned Residential (PR) zoning districts. The amendments included the following: • Require the issuance of new STR permits in PR zones to be supported by written approval from a Homeowner’s Association (HOA) having jurisdiction over the property. • Existing STR permits within the PR zones (excluding On-Site Owner STR Permits) without a written approval letter shall terminate, and such uses permanently cease operation after December 31, 2021. When Ordinance No. 1360 was adopted by the City Council, it did not include a formal definition for an HOA. It was the understanding/intent during the City Council Subcommittee meetings and the City Council public hearings that requiring an approval letter of an HOA would come from a governing board of a common interest development formed under the Davis-Stirling Common Interest Development Act (Civil Code Section 41200 et seq). On February 24, 2022, the City Council directed the City Council Subcommittee to draft a Page 191 April 28, 2022 2022 Municipal Code Update Ordinance Page 4 of 4 formal definition for an HOA and initiate an amendment to Chapter 5.10. On March 18, 2022, the City Council Subcommittee met (via Zoom). During the meeting, it was stated that the intent of Ordinance No. 1360 was to eliminate STRs in neighborhoods that did not support their presence and were not self-regulated by a functioning HOA, and that an HOA consisted of contiguous properties subject to CC&Rs with a governing board that is elected by, and responsive to, the whole neighborhood and capable of enforcing STR regulations to the satisfaction of the whole neighborhood. The City Council Subcommittee also discussed the contiguous properties are bounded by an approved final map. Below is the definition that the City Council Subcommittee is recommending. “Homeowners’ Association” means governing board of a common interest development, formed under the Davis Sterling Act (California Civil Code § 4100), where there exists a common area owned by the association or owners of separate interests, there has been recorded a declaration and final subdivision map, there has been conveyed to each homeowner a separate interest coupled with an interest in the common area or membership in the association, and the governing board is elected by the association of homeowners, and where the association includes all of the residential properties within the recorded subdivision map.” Fiscal Analysis There is no fiscal impact associated with the recommended action. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER RHW Robert W. Hargreaves City Attorney L. Todd Hileman L. Todd Hileman City Manager N/A Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager: L. Todd Hileman: L. Todd Hileman ATTACHMENTS: 1. Ordinance No. ________ 2. Redline Code Sections Page 192 ORDINANCE NO. 72500.00001\31635046.1 ORDINANCE NO. _________ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING AND UPDATING VARIOUS SECTIONS OF THE PALM DESERT MUNICIPAL CODE. WHEREAS, the City Palm Desert (“City”) periodically reviews the Palm Desert Municipal Code (“Municipal Code”) to identify areas that need updating, clarification, and revisions in accordance with state law; and WHEREAS, the City Council of the City of Palm Desert desires to enact this Ordinance to make such updates, clarifications, and revisions to the Municipal Code; and WHEREAS, all other legal prerequisites to the presentation of this Ordinance have occurred. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA DOES ORDAIN AS FOLLOWS: Section 1. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 5.87 Massage Establishments is hereby amended as follows: “5.87 Massage Establishments … 5.87.030 Definitions. … “Applicant” means an applicant for a massage establishment business license. … “Certified massage establishment” means any establishment where the only persons employed or used by that establishment to provide massage services have current and valid state certifications, and the owner has a current massage establishment business license. … “Massage establishment business license” means a permit issued by the city manager upon submission of satisfactory evidence as required in Section 5.87.050 of this chapter. Page 193 ORDINANCE NO. 72500.00001\31635046.1 “Massage establishment business license holder” means a person or establishment that has been issued a massage establishment business license by the city manager. … 5.87.040 State certification and city massage establishment business license required. Within six months of passage of the ordinance codified in this chapter, it is unlawful for any establishment to provide massage services within the city unless the massage establishment has obtained a massage establishment business license from the city and all individuals providing massage at said massage establishment are state certified massage practitioners. Any non-conforming uses shall be subject to Chapter 25.62. 5.87.050 Certified massage establishment—business license required. A. Any person desiring to own or operate an establishment to provide massage services within the city shall file a massage establishment business license application on forms provided by the city manager, submitted under penalty of perjury and containing all of the following information: … iv. Two photographs of the applicant to be taken by the police department if the applicant is not certified by the CAMTC; … 4. Authorization for the city of Palm Desert, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and generally into the background of the applicant, including fingerprinting or formal background check, as long as the applicant is not certified by the CAMTC. Any applicant who is certified by the CAMTC will not be subject to a formal background check. … 5.87.070 Certified massage establishment—Business license issuance. A. The city manager may issue a massage establishment business license to a certified massage establishment that demonstrates all of the following: 1. That the operation, as proposed by the applicant, if permitted, complies with all applicable laws, including, but not limited to, the city’s building, zoning, business license, and health and safety regulations. Page 194 ORDINANCE NO. 72500.00001\31635046.1 2. The application is complete. 3. The applicant has not engaged in or been complicit in, any activity or inactivity that would lead to suspension or revocation of a massage establishment business license as set forth in this chapter within five years preceding the application. 4. The massage establishment employs or uses only state certified massage practitioners whose certifications are valid and current and that owners of the state certificates are the same persons to whom CAMTC issued valid and current identification cards. 5. That the applicant has not made a material misrepresentation in this application or with respect to any other document or information required by the city with respect to this application or for an application for a city massage establishment business license under applicable law within the last five years. B. If the application is denied, the city manager shall promptly give the applicant written notice thereof and the findings for such denial. The applicant may submit a written request for reconsideration with the city manager within ten calendar days of the date of the city manager’s written notice of denial. The request for reconsideration shall be accompanied by a fifty-dollar filing fee, or other amount as established from time to time by city council resolution. Upon receipt of the written request, the city manager shall reconsider the application together with any new records, documents, or information presented by the applicant, or discovered by the city, within the time and manner provided in Section 5.87.050. The city manager’s decision on the reconsideration shall be final. 5.87.080 Massage establishment business license application fee. A massage establishment business license application fee shall be set by resolution of the city council and shall be required for all applicants. 5.87.090 Reserved. 5.87.100 Notification of changes. Every massage establishment business license holder shall report in writing to the city manager any and all changes of address or ownership of the massage establishment, and any changes or transfers of massage practitioners employed in the establishment or practice within thirty calendar days of said change(s). 5.87.110 Massage establishment business license expiration and renewal. A. Massage establishment business licenses shall be valid for two years from issuance or as extended pursuant to this chapter. B. The city massage establishment business license shall be renewed in accordance with the expiration schedule set forth in this section. Page 195 ORDINANCE NO. 72500.00001\31635046.1 C. If a massage establishment business license holder wishes to renew such business license prior to its expiration, he or she must apply to the city to renew such business license within fifteen calendar days prior to expiration. D. If a renewal application and all required information for the renewal is not received upon expiration, the massage establishment business license shall be deemed expired and no privilege to provide massage services in Palm Desert shall exist. Renewals shall be processed and investigated and the applicant is required to submit that information which has changed from the last application or renewal, and a renewal application fee as provided in Section 5.87.080. 5.87.120 Revocation or suspension of massage establishment business license. A. Massage establishment business licenses issued to a certified massage establishment shall be suspended or revoked by the city manager upon any of the following grounds: 1. The massage establishment business license holder has been arrested or filing of charges of a crime that would have caused denial of the massage establishment business license. 2. The massage establishment business license holder has made a material misrepresentation on the application for massage establishment business license or renewal. 3. The massage establishment business license holder has engaged in conduct or operated the certified massage establishment or as a massage practitioner in a manner which violates any of the provisions of this chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit. A massage therapist or massage practitioner employed by the massage establishment has been arrested for violating the provisions of Section 647(a) and (b) of the California Penal Code, or any other state law involving a crime of moral turpitude, or the premises for which the business license was issued is being operated in an illegal or disorderly manner. 4. The massage establishment business license holder employs or uses one or more non-certified massage practitioners to perform massage services. 5. Violations of this chapter or of California Business and Professions Code Section 4600 et seq., have occurred on the establishment premises. 6. The massage establishment business license holder has failed to comply with one or more of the zoning, business license, or health and safety requirements under this chapter. 7. The massage establishment business license holder has engaged in fraud, misrepresentation, or false statements in obtaining or maintaining a massage Page 196 ORDINANCE NO. 72500.00001\31635046.1 establishment business license. 8. There is an urgency of immediate action to protect the public from injury or harm. B. The term of suspension shall be not more than sixty calendar days. C. The suspension or revocation shall be effective immediately by the city manager. D. If a massage establishment business license is suspended or revoked, the suspension shall be effective immediately by the city manager or designees. Such suspension shall be accomplished by posting a notice thereof on the premises. Such notice shall state the reasons for the suspension. The city manager or designees shall direct or cause the premises to be closed and locked against use by the public in order to ensure compliance with an order of suspension. The aggrieved party may pursue a subsequent appeal or hearing by following the procedures set forth in this chapter. E. It is unlawful for any person to conduct the business of a massage establishment or carry on the business of massage while the massage establishment business license remains suspended or revoked pending a hearing. F. Any massage establishment business license or certificate of registration for a massage business existing at the time this ordinance is adopted may be revoked or suspended as provided in this chapter. 5.87.130 Suspension or revocation notice. A. Notice shall be given to the massage establishment business license holder by letter stating the grounds for proposed revocation or suspension. Notice shall be given by personal service or certified, registered, or first class mail of the letter to the address shown on the last application or renewal. B. If the massage establishment business license is suspended or revoked, the massage establishment permit shall be surrendered. C. Service shall be deemed complete when personal service is made or when the notice letter is delivered by certified, registered, or first class mail. 5.87.140 Appeal from revocation, suspension. The decision of the city manager to suspend or revoke a massage establishment business license may be appealed by the massage establishment business license holder in accordance with the following procedures: A. All appeals shall be in writing and shall contain the following information: (1) name(s) of the person filing the appeal (appellants); (2) a brief statement in ordinary and concise language of the grounds for the appeal; and (3) the signatures of all parties Page 197 ORDINANCE NO. 72500.00001\31635046.1 named as appellants and their mailing addresses. B. A filing fee for an appeal of one hundred dollars, or other amount as established from time to time by city council resolution, must be paid to the city at or prior to the time of the filing of the appeal. C. Any appeal filed that fails to provide all of the information required by this section and the appropriate filing fee shall be deemed incomplete. D. A complete and proper appeal of the suspension or revocation of a massage establishment business license shall be filed with the city clerk within ten calendar days of service of the letter revoking or suspending the massage establishment business license or within ten calendar days of any other action that is the subject of appeal. E. After receiving the written appeal, the city clerk shall schedule a hearing before the city council. The city council may refer the matter to a hearing officer. The city council may decide the matter based on the recommendations and findings of the hearing officer, if it so chooses. F. The decision of the city council or hearing officer shall be final. 5.87.150 Reapplication after denial or revocation. No reapplication for a massage establishment business license will be accepted within two years after an application or renewal is denied or a massage establishment business license is revoked. If the application or renewal is denied for the sole reason that the application or renewal application is incomplete, reapplication may occur to complete the application or renewal application, however, an additional application fee will be charged per each submitted application. If an application is denied for the sole reason that a massage practitioner does not possess the required training, reapplication may occur when the required training is completed. 5.87.160 Inspection by city and notices of violation. A. The city shall have the right to enter the premises from time to time during regular business hours prior to the issuance of a massage establishment business license and subsequently for the purpose of making reasonable inspections to enforce compliance with this chapter and with building, fire, electrical, plumbing, and/or health and safety regulations. In the event a massage establishment business license has been issued, it may be revoked or suspended in the manner set forth in this chapter. It is unlawful for any massage establishment owner/operator to fail to allow code compliance or police officers into the premises or hinder such officers in any manner. During an inspection, code compliance and police officers may also verify the identity of the owner(s) and all employees. B. Whenever city officials make an inspection of a massage establishment and find that any provision of this chapter has been violated, he or she shall give notice Page 198 ORDINANCE NO. 72500.00001\31635046.1 of such violation by means of an inspection report or other written notice. In any such notification, the investigating person shall: 1. Set forth the specific violation or violations found, and shall notify the massage establishment business license holder that failure to comply with any notice issued in accordance with the provisions of this chapter may result in the revocation or suspension of the massage establishment business license. 2. The massage establishment business license holder may be issued a warning that any future violation of this chapter may result in suspension or revocation of the massage establishment business license, or the city officials may establish a specific and reasonable period of time for the correction of the violation or violations. No time to correct need be given for health and safety violations or violations of criminal law. 3. The massage establishment business license holder and operator shall take immediate action to correct violations and city officials may re-inspect the establishment for compliance. 5.87.170 Transfer of massage establishment business license. A massage establishment business license shall not be transferable except with the written approval of the city manager. A written application for such a transfer shall be made to the city manager. The application for such transfer shall contain the same information as required herein for an initial application for a massage establishment business license as set forth in Section 5.87.050. In the event of denial of such transfer, notification of and reasons for denial shall be set forth in writing and shall be sent to the applicant by means of registered or certified mail or delivered in person. 5.87.190 Exemptions. … F. Health clubs, health spa, gymnasium, or other similar facility designed or intended for general physical exercise or conditioning in which the furnishing of full body work or full body massage generates less than fifty percent of the establishment’s gross revenue. However, if massage is offered, the facility must employ a certified massage practitioner or practitioners to perform all massage services. 5.87.200 Health and safety requirements—Building requirements. … B. The owner or operator of each massage establishment shall display the massage establishment business license issued to the establishment and to each massage practitioner employed in the establishment in an accessible and conspicuous place on the premises. Certified massage practitioners shall have his or her original state certificate at his or her place of business and his or her identification card in his or Page 199 ORDINANCE NO. 72500.00001\31635046.1 her possession while providing massage services. 5.87.210 Health and safety requirements—Operating requirements. … E. It is unlawful for any owner, employee, or certified massage practitioner to be other than fully clothed in non-transparent clothing at all times that shall not expose their genitals, pubic area, buttocks, or chest or for any operator of a massage establishment to allow or permit prohibited dress. … M. No massage establishment granted a massage establishment business license under the provisions of this chapter shall place, publish or distribute, or cause to be placed, published or distributed, any advertisement, picture or statement which is known, or through the exercise of reasonable care should be known, to be false, deceptive or misleading in order to induce any person to purchase or utilize any professional massage service. … T. If during the life of a massage establishment business license, the applicant has any change in information concerning the original application, notification must be made to the city manager, in writing, within thirty calendar days of the change. U. It is unlawful for any certified massage establishment or any massage establishment business license holder, owner, operator, or responsible managing officer/employee to violate any of the mandatory requirements of this chapter applicable to massage establishments.” 5.87.220 Violation—Penalties. A. Unless otherwise exempted by the provisions of this chapter, every person, whether acting as an individual, owner, employee of the owner, operator, or employee of the operators or whether acting as a mere helper for the owner, employee, or operator, or whether acting as a participant or worker in any way, who gives massages or conducts a massage establishment, or who, in connection with the establishment, gives or administers, or practices the giving or administering of, massages as defined in this chapter, without first obtaining state certification and a city massage establishment business license, or who shall violate any provision of this chapter, shall be guilty of a misdemeanor. B. Any owner, licensee, manager, or massage establishment business license holder in charge or in control of a massage establishment or certified massage establishment or who knowingly employs a person who is not in possession of a valid, unrevoked massage establishment business license, or who allows such persons to perform, operate, or practice within such a place of business, shall be guilty of a Page 200 ORDINANCE NO. 72500.00001\31635046.1 misdemeanor. …” Section 2. Repeal of Municipal Code Chapter. Palm Desert Municipal Code Chapter 5.90 Massage Practitioners is hereby repealed in full. Section 3. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 24.16 Outdoor Lighting Requirements, Section 24.16.015 Outdoor lighting requirements, subsections B. and C. are hereby amended and subsection N. is hereby added as follows: “B. Commercial and Residential Zones. Lighting sources (lamps) approved for commercial and residential zones are light emitting diodes (LED), light emitting plaza (LEP), compact fluorescent lamps (CFL), multifaceted reflector halogen lamps (MR) and incandescent lamps. High pressure sodium (HPS) lamps are prohibited. C. Lighting sources approved for public or municipal outdoor recreation facilities are light emitting diodes (LED), light emitting plaza (LEP) and metal halide (MH). High pressure sodium (HPS) lamps are prohibited. … N. The maximum Color Correlated Temperature (CCT) for all outdoor lighting shall be limited to four thousand (4000) Kelvin.” Section 4. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 24.16 Outdoor Lighting Requirements, Section 24.16.025 Public street lighting, subsection C. 1. Is hereby amended as follows: “C. Luminaire and Lamp Requirements. 1. High pressure sodium (HPS) street lighting in single-family residential districts is prohibited.” Section 5. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 24.16 Outdoor Lighting Requirements, Section 24.16.035 Lighting performance criteria is hereby amended as follows: “24.16.035 Lighting performance criteria. A. The performance of the lighting submittal will be evaluated based on the following criteria when the lamp source is LED or LEP. 1. Minimum foot-candles shall be one foot-candle. 2. Average maintained light level of one foot-candles to three foot-candles. Page 201 ORDINANCE NO. 72500.00001\31635046.1 3. Average to minimum uniformity ratio shall not exceed 4:1. 4. Maximum to minimum uniformity ratio shall not exceed 16:1. B. High pressure sodium (HPS) lamps are prohibited. C. The illumination levels at exits, entrances, loading zones, and collector lanes shall be approximately twice the average illumination of the adjacent parking area or the adjoining street, whichever is greater. D. Building exit illumination levels shall meet the foot-candle requirements established by the California Electrical Code and all associated building codes.” Section 6. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 24.16 Outdoor Lighting Requirements, Section 24.16.040 Light trespass, Subsection I. is hereby amended as follows: “I. Hillside lighting shall be designed with the following: 1. Hillside lighting systems must be submitted with a carefully detailed photometric plan illustrating horizontal and vertical foot-candles and a written justification why hillside lighting should be allowed. Lighting plans shall be reviewed as part of a Hillside Development Plan as described in Title 25. 2. Hillside lighting shall utilize light emitting diodes (LED) sources and be furnished with glare shields. 3. Luminaries with total lamp lumens above sixteen thousand lumens shall not be used. 4. All hillside lighting shall be turned off no later than ten p.m. and remain off until the following evening.” Section 7. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 26.34 Parcel Map Waiver is hereby amended as follows: “Chapter 26.34 PARCEL MAP WAIVER 26.34.010 Purpose. The procedure outlined in this section shall govern the processing and requirements for boundary adjustments, pursuant to the Subdivision Map Act Section 66412(d), General Plan, and local ordinances. This wavier may apply to lot line adjustments or merger of four parcels or less as determined by the City Engineer. 26.34.020 Application requirements. An application for parcel map waiver, applicable fees, maps, exhibits, and current title report shall be filed with the Department of Development Services and shall include Page 202 ORDINANCE NO. 72500.00001\31635046.1 such data and information as may be prescribed by the City Engineer and Director of Development Services. 26.34.030 Review and Approval. The Director of Development Services shall consider the application for a waiver of a parcel map requirement within forty-five days after the filing of the application. The Director of Development Services shall grant a waiver, provided that it finds that the proposed adjustment and the resulting parcels comply with applicable requirements with the local General Plan, any applicable Specific Plan, and zoning and building ordinances, floodwater drainage control, appropriate improved public roads, sanitary disposal facilities, water supply availability, environmental protection, and other requirements of this title. If a waiver is granted, a certificate of compliance shall be filed with the county recorder, which certificate shall describe the real properties involved, name the owners thereof, and state that a waiver for a lot line adjustment has been granted by action of the Director of Development Services, giving the date thereof.” Section 8. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 27.12 Requirements and Standards of Land Alteration, Section 27.12.045 Control of building pad elevation, subsection C. is hereby amended as follows: “C. Where the property is subject to a tentative tract map or a final tract map that provides elevations for the property to be graded, the pad elevations shall conform to the applicable approved map. If the proposed elevations vary more than six inches from the elevations of the approved map, the revised elevations must be reviewed by the City Engineer and approved through the Director of Development Services. The Director of Development Services may refer the request to a public hearing process for approval.” Section 9. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 5.10 Short-term Rentals, Section 5.10.020 Purpose, subsection A. is hereby amended as follows: “A. The purpose of this chapter is to regulate privately-owned residential dwellings within the city including homeowner’s associations used as short-term rental units, ensure that transient occupancy taxes (TOT) are paid and collected, and minimize the potential negative effects of short-term rental units on surrounding residential neighborhoods.” Section 10. Amendment to Municipal Code. Palm Desert Municipal Code Chapter 5.10 Short-term Rentals, Section 5.10.030 Definitions is amended to add the following definition in alphabetical order between the definitions of “Good Neighbor Brochure” and “Mixed residential district (R-2)”: ““Homeowners’ Association” means governing board of a common interest development, formed under the Davis Sterling Act (California Civil Code § 4100), where Page 203 ORDINANCE NO. 72500.00001\31635046.1 there exists a common area owned by the association or owners of separate interests, there has been recorded a declaration and final subdivision map, there has been conveyed to each homeowner a separate interest coupled with an interest in the common area or membership in the association, and the governing board is elected by the association of homeowners, and where the association includes all of the residential properties within the recorded subdivision map.” Section 11. Severability. If any section, subsection, clause or phrase of this Ordinance or any part thereof is for any reason held to be invalid, unconstitutional, or unenforceable by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of the Ordinance. The City Council declares that it would have passed each section, subsection, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause or phrase would be declared invalid, unconstitutional or unenforceable. Section 12. CEQA. The City Council hereby finds and determines that this Ordinance is exempt from CEQA pursuant to State CEQA Guidelines section 15061(b)(3) because it can be seen with certainty that the Ordinance would not have the potential or possibility for causing a significant effect on the environment. Specifically, the proposed changes to the Municipal Code are primarily administrative in nature and clean-up various inconsistencies that existed in the prior version of the Municipal Code. Moreover, many of the changes are technical in nature and do not allow for specific development. In reviewing the Ordinance the City Council has exercised its independent judgment and has reviewed and considered the Ordinance in light of all testimony received, both oral and written. Therefore, based upon the entire administrative record, the City Council hereby determines that no further environmental review is required for the Ordinance. SECTION 13. Publication. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this Ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Palm Desert, California, on the ____ day of ______, 2022 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Page 204 ORDINANCE NO. 72500.00001\31635046.1 ______________________ JAN C. HARNIK, MAYOR ATTEST: _____________________________ ANTHONY J. MEJIA, CITY CLERK City of Palm Desert, California APPROVED AS TO FORM: ____________________________ ROBERT HARGREAVES, CITY ATTORNEY Page 205 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 This attachment shows the updates to the Palm Desert Municipal Code in redline. Additions to the Municipal Code are shown in underlined text. Deletions are shown in strikethrough. I. REVISIONS TO MUNICIPAL CODE CHAPTER 5.87 MASSAGE ESTABLISHMENTS “5.87 Massage Establishments … 5.87.030 Definitions. … “Applicant” means an applicant for a massage establishment permit business license. … “Certified massage establishment” means any establishment where the only persons employed or used by that establishment to provide massage services have current and valid state certifications, and the owner has a current massage establishment permit business license, and all practitioners and owners have a business licenses. … “Massage establishment permit business license” means a permit issued by the city manager upon submission of satisfactory evidence as required in Section 5.87.050 of this chapter. “Massage establishment permit business license holder” means a person or establishment that has been issued a massage establishment permit business license by the city manager. … 5.87.040 State certification and city massage establishment permit business license required. Within six months of passage of the ordinance codified in this chapter, it is unlawful for any establishment to provide massage services within the city unless the massage establishment has obtained a massage establishment permit business license from the city and all individuals providing massage at said massage establishment are state certified massage practitioners. Any non-conforming uses shall be subject to Chapter 25.62. Page 206 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 5.87.050 Certified massage establishment—Permit business license required. A. Any person desiring to own or operate an establishment to provide massage services within the city shall file a massage establishment permit business license application on forms provided by the city manager, submitted under penalty of perjury and containing all of the following information: … iv. Two photographs of the applicant to be taken by the police department if the applicant is not certified by the CAMTC; … 4. Authorization for the city of Palm Desert, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and generally into the background of the applicant, without conducting any type of including fingerprinting or formal background check, as long as the applicant is not certified by the CAMTC. Any applicant who is certified by the CAMTC will not be subject to a formal background check. … 5.87.070 Certified massage establishment—Permit Business license issuance. A. The city manager may issue a massage establishment permit business license to a certified massage establishment that demonstrates all of the following: 1. That the operation, as proposed by the applicant, if permitted, complies with all applicable laws, including, but not limited to, the city’s building, zoning, business license, and health and safety regulations. 2. The application is complete. 3. The applicant has not engaged in or been complicit in, any activity or inactivity that would lead to suspension or revocation of a massage establishment permit business license as set forth in this chapter within five years preceding the application. 4. The massage establishment employs or uses only state certified massage practitioners whose certifications are valid and current and that owners of the state certificates are the same persons to whom CAMTC issued valid and current identification cards. 5. That the applicant has not made a material misrepresentation in this application or with respect to any other document or information required by the city with Page 207 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 respect to this application or for an application for a city massage establishment permit business license under applicable law within the last five years. B. If the application is denied, the city manager shall promptly give the applicant written notice thereof and the findings for such denial. The applicant may submit a written request for reconsideration with the city manager within ten calendar days of the date of the city manager’s written notice of denial. The request for reconsideration shall be accompanied by a fifty-dollar filing fee, or other amount as established from time to time by city council resolution. Upon receipt of the written request, the city manager shall reconsider the application together with any new records, documents, or information presented by the applicant, or discovered by the city, within the time and manner provided in Section 5.87.050. The city manager’s decision on the reconsideration shall be final. 5.87.080 Massage establishment permit business license application fee. A massage establishment permit business license application fee shall be set by resolution of the city council and shall be required for all applicants. 5.87.090 Business license Reserved. All applicants shall obtain a business license where required by the city’s business license provisions. The issuance of a massage establishment permit is a condition precedent to the granting of such a business license. Upon the issuance of a massage establishment permit pursuant to this chapter, the applicant shall apply for and furnish the information necessary to obtain a business license as required by the provisions of this code. No business license shall be issued until the massage establishment permit has been issued and the business license fee, as provided in this code, has been paid. 5.87.100 Notification of changes. Every massage establishment permit business license holder shall report in writing to the city manager any and all changes of address or ownership of the massage establishment, and any changes or transfers of massage practitioners employed in the establishment or practice within thirty calendar days of said change(s). 5.87.110 Massage establishment permit business license expiration and renewal. A. Massage establishment permits business licenses shall be valid for two years from issuance or as extended pursuant to this chapter. B. The city massage establishment permit business license shall be renewed in accordance with the expiration schedule set forth in this section. C. If a massage establishment permit business license holder wishes to renew such permit business license prior to its expiration, he or she must apply to the Page 208 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 city to renew such permit business license within fifteen calendar days prior to expiration. D. If a renewal application and all required information for the renewal is not received upon expiration, the massage establishment permit business license shall be deemed expired and no privilege to provide massage services in Palm Desert shall exist. Renewals shall be processed and investigated and the applicant is required to submit that information which has changed from the last application or renewal, and a renewal application fee as provided in Section 5.87.080. 5.87.120 Revocation or suspension of massage establishment permit business license. A. Massage establishment permits business licenses issued to a certified massage establishment shall be suspended or revoked by the city manager upon any of the following grounds: 1. The massage establishment permit business license holder has been arrested or filing of charges of a crime that would have caused denial of the massage establishment permit business license. 2. The massage establishment permit business license holder has made a material misrepresentation on the application for massage establishment permit business license or renewal. 3. The massage establishment permit business license holder has engaged in conduct or operated the certified massage establishment or as a massage practitioner in a manner which violates any of the provisions of this chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit. A massage therapist or massage practitioner employed by the massage establishment has been arrested for violating the provisions of Section 647(a) and (b) of the California Penal Code, or any other state law involving a crime of moral turpitude, or the premises for which the permit business license was issued is being operated in an illegal or disorderly manner, and such practices shall constitute in immediate suspension and/or revocation of certificate of registration. 4. The massage establishment permit business license holder employs or uses one or more non-certified massage practitioners to perform massage services. 5. Violations of this chapter or of California Business and Professions Code Section 4600 et seq., have occurred on the establishment premises. 6. The massage establishment permit business license holder has failed to comply with one or more of the zoning, business license, or health and safety requirements under this chapter. 7. The massage establishment permit business license holder has engaged in fraud, misrepresentation, or false statements in obtaining or maintaining a massage Page 209 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 establishment permit business license. 8. There is an urgency of immediate action to protect the public from injury or harm. B. The term of suspension shall be not more than sixty calendar days. C. The suspension or revocation shall be effective immediately by the city manager. D. If a massage establishment permit business license is suspended or revoked, the suspension shall be effective immediately by the city manager or designees. Such suspension shall be accomplished by posting a notice thereof on the premises. Such notice shall state the reasons for the suspension. The city manager or designees shall direct or cause the premises to be closed and locked against use by the public in order to ensure compliance with an order of suspension. The aggrieved party may pursue a subsequent appeal or hearing by following the procedures set forth in this chapter. E. It is unlawful for any person to conduct the business of a massage establishment or carry on the business of massage while the massage establishment permit business license remains suspended or revoked pending a hearing. F. Any massage establishment permit business license or certificate of registration for a massage business existing at the time this ordinance is adopted may be revoked or suspended as provided in this chapter. 5.87.130 Suspension or revocation notice. A. Notice shall be given to the massage establishment permit business license holder by letter stating the grounds for proposed revocation or suspension. Notice shall be given by personal service or certified, registered, or first class mail of the letter to the address shown on the last application or renewal. B. If the massage establishment permit business license is suspended or revoked, the massage establishment permit shall be surrendered. C. Service shall be deemed complete when personal service is made or when the notice letter is delivered by certified, registered, or first class mail. 5.87.140 Appeal from revocation, suspension. The decision of the city manager to suspend or revoke a massage establishment permit business license may be appealed by the massage establishment permit business license holder in accordance with the following procedures: A. All appeals shall be in writing and shall contain the following information: (1) name(s) of the person filing the appeal (appellants); (2) a brief statement in ordinary Page 210 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 and concise language of the grounds for the appeal; and (3) the signatures of all parties named as appellants and their mailing addresses. B. A filing fee for an appeal of one hundred dollars, or other amount as established from time to time by city council resolution, must be paid to the city at or prior to the time of the filing of the appeal. C. Any appeal filed that fails to provide all of the information required by this section and the appropriate filing fee shall be deemed incomplete. D. A complete and proper appeal of the suspension or revocation of a massage establishment permit business license shall be filed with the city clerk within ten calendar days of service of the letter revoking or suspending the massage establishment permit business license or within ten calendar days of any other action that is the subject of appeal. E. After receiving the written appeal, the city clerk shall schedule a hearing before the city council. The city council may refer the matter to a hearing officer. The city council may decide the matter based on the recommendations and findings of the hearing officer, if it so chooses. F. The decision of the city council or hearing officer shall be final. 5.87.150 Reapplication after denial or revocation. No reapplication for a massage establishment permit business license will be accepted within two years after an application or renewal is denied or a massage establishment permit business license is revoked. If the application or renewal is denied for the sole reason that the application or renewal application is incomplete, reapplication may occur to complete the application or renewal application, however, an additional application fee will be charged per each submitted application. If an application is denied for the sole reason that a massage practitioner does not possess the required training, reapplication may occur when the required training is completed. 5.87.160 Inspection by city and notices of violation. A. The city shall have the right to enter the premises from time to time during regular business hours prior to the issuance of a massage establishment permit business license and subsequently for the purpose of making reasonable inspections to enforce compliance with this chapter and with building, fire, electrical, plumbing, and/or health and safety regulations. In the event a massage establishment permit business license has been issued, it may be revoked or suspended in the manner set forth in this chapter. It is unlawful for any massage establishment owner/operator to fail to allow code compliance or police officers into the premises or hinder such officers in any manner. During an inspection, code compliance and police officers may also verify the identity of the owner(s) and all employees. B. Whenever city officials make an inspection of a massage establishment Page 211 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 and find that any provision of this chapter has been violated, he or she shall give notice of such violation by means of an inspection report or other written notice. In any such notification, the investigating person shall: 1. Set forth the specific violation or violations found, and shall notify the massage establishment permit business license holder that failure to comply with any notice issued in accordance with the provisions of this chapter may result in the revocation or suspension of the massage establishment permit business license. 2. The massage establishment permit business license holder may be issued a warning that any future violation of this chapter may result in suspension or revocation of the massage establishment permit business license, or the city officials may establish a specific and reasonable period of time for the correction of the violation or violations. No time to correct need be given for health and safety violations or violations of criminal law. 3. The massage establishment permit business license holder and operator shall take immediate action to correct violations and city officials may re-inspect the establishment for compliance. 5.87.170 Transfer of massage establishment permit business license. A massage establishment permit business license shall not be transferable except with the written approval of the city manager. A written application for such a transfer shall be made to the city manager. The application for such transfer shall contain the same information as required herein for an initial application for a massage establishment permit business license as set forth in Section 5.87.050. In the event of denial of such transfer, notification of and reasons for denial shall be set forth in writing and shall be sent to the applicant by means of registered or certified mail or delivered in person. 5.87.190 Exemptions. … F. Health clubs, health spa, gymnasium, or other similar facility designed or intended for general physical exercise or conditioning in which the furnishing of full body work or full body massage generates less than fifty percent of the establishment’s gross revenue. However, if massage is offered, the facility must employ a certified massage practitioner or practitioners to perform all massage services. However, persons performing massage services shall obtain a state certification city massage establishment permit in conformance with Chapter 5.90 Massage Practitioners. 5.87.200 Health and safety requirements—Building requirements. … B. The owner or operator of each massage establishment shall display the Page 212 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 massage establishment permit business license issued to the establishment and to each massage practitioner employed in the establishment in an accessible and conspicuous place on the premises. Certified massage practitioners shall have his or her original state certificate at his or her place of business and his or her identification card in his or her possession while providing massage services. 5.87.210 Health and safety requirements—Operating requirements. … E. It is unlawful for any owner, employee, or certified massage practitioner or other person to be other than fully clothed in non-transparent clothing at all times that shall not expose their genitals, pubic area, buttocks, or chest or for any operator of a massage establishment to allow or permit prohibited dress. … M. No massage establishment granted a massage establishment permit or business license under the provisions of this chapter shall place, publish or distribute, or cause to be placed, published or distributed, any advertisement, picture or statement which is known, or through the exercise of reasonable care should be known, to be false, deceptive or misleading in order to induce any person to purchase or utilize any professional massage service. … T. If during the life of a massage establishment permit business license, the applicant has any change in information concerning the original application, notification must be made to the city manager, in writing, within thirty calendar days of the change. U. It is unlawful for any certified massage establishment or any massage establishment permit business license holder, owner, operator, or responsible managing officer/employee to violate any of the mandatory requirements of this chapter applicable to massage establishments.” 5.87.220 Violation—Penalties. A. Unless otherwise exempted by the provisions of this chapter, every person, whether acting as an individual, owner, employee of the owner, operator, or employee of the operators or whether acting as a mere helper for the owner, employee, or operator, or whether acting as a participant or worker in any way, who gives massages or conducts a massage establishment, or who, in connection with the establishment, gives or administers, or practices the giving or administering of, massages as defined in this chapter, without first obtaining state certification and a city massage establishment permit business license, or who shall violate any provision of this chapter, shall be guilty of a misdemeanor. B. Any owner, licensee, manager, or massage establishment permit Page 213 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 business license holder in charge or in control of a massage establishment or certified massage establishment or who knowingly employs a person who is not in possession of a valid, unrevoked massage establishment permit business license, or who allows such persons to perform, operate, or practice within such a place of business, shall be guilty of a misdemeanor. …” II. PALM DESERT MUNICIPAL CODE CHAPTER 5.90 MASSAGE PRACTITIONERS IS REPEALED IN FULL. III. REVISIONS TO PALM DESERT MUNICIPAL CODE CHAPTER 24.16 OUTDOOR LIGHTING REQUIREMENTS, SECTION 24.16.015 OUTDOOR LIGHTING REQUIREMENTS “B. Commercial and Residential Zones. Lighting sources (lamps) approved for commercial and residential zones are high pressure sodium (HPS), light emitting diodes (LED), light emitting plaza (LEP), compact fluorescent lamps (CFL), multifaceted reflector halogen lamps (MR) and incandescent lamps. High pressure sodium (HPS) lamps are prohibited. C. Lighting sources approved for public or municipal outdoor recreation facilities are high pressure sodium (HPS), light emitting diodes (LED), light emitting plaza (LEP) and metal halide (MH). High pressure sodium (HPS) lamps are prohibited. … N. The maximum Color Correlated Temperature (CCT) for all outdoor lighting shall be limited to four thousand (4000) Kelvin.” IV. REVISIONS TO PALM DESERT MUNICIPAL CODE CHAPTER 24.16 OUTDOOR LIGHTING REQUIREMENTS, SECTION 24.16.025 PUBLIC STREET LIGHTING “C. Luminaire and Lamp Requirements. 1. High pressure sodium (HPS) street lighting in single-family residential districts shall use nine thousand five hundred lumens or less and shall be full-cutoff luminaries with house side shields is prohibited.” V. REVISIONS TO PALM DESERT MUNICIPAL CODE CHAPTER 24.16 OUTDOOR LIGHTING REQUIREMENTS, SECTION 24.16.035 LIGHTING PERFORMANCE CRITERIA “24.16.035 Lighting performance criteria. A. The performance of the lighting submittal will be evaluated based on the following criteria when the lamp source is LED or LEP. Page 214 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 1. Minimum foot-candles shall be one foot-candle. 2. Average maintained light level of one foot-candles to three foot-candles. 3. Average to minimum uniformity ratio shall not exceed 4:1. 4. Maximum to minimum uniformity ratio shall not exceed 16:1. B. The lighting system using High pressure sodium (HPS) lamps shall be designed to the following standards are prohibited. 1. Minimum foot-candles shall be one and one-half foot-candles. 2. Average maintained light level of one and one-half footcandles to three foot-candles. 3. Average to minimum uniformity ratio shall not exceed 4:1. 4. Maximum to minimum uniformity ratio shall not exceed 16:1. C. The illumination levels at exits, entrances, loading zones, and collector lanes shall be approximately twice the average illumination of the adjacent parking area or the adjoining street, whichever is greater. D. Building exit illumination levels shall meet the foot-candle requirements established by the California Electrical Code and all associated building codes. VI. REVISIONS TO PALM DESERT MUNICIPAL CODE CHAPTER 24.16 OUTDOOR LIGHTING REQUIREMENTS, SECTION 24.16.040 LIGHT TRESPASS, SUBSECTION I. “I. Hillside lighting shall be designed with the following: 1. Hillside lighting systems must be submitted with a carefully detailed photometric plan illustrating horizontal and vertical foot-candles and a written justification why hillside lighting should be allowed. Lighting plans shall be reviewed as part of a Hillside Development Plan as described in Title 25. 2. Hillside lighting shall utilize high pressure sodium light emitting diodes (LED) sources and be furnished with glare shields. 3. Luminaries with total lamp lumens above sixteen thousand lumens shall not be used. 4. All hillside lighting shall be turned off no later than ten p.m. and remain off until the following evening.” Page 215 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 VII. REVISIONS TO PALM DESERT MUNICIPAL CODE CHAPTER 26.34 PARCEL MAP WAIVER “Chapter 26.34 PARCEL MAP WAIVER 26.34.010 Purpose. The purpose of this chapter is to provide procedures for the waiver of the requirement to prepare a parcel map (Chapter 26.32) in cases where the planning commission determines that the minor property line adjustment complies with the state map act and local ordinances. This waiver may apply to lot line adjustment consolidation of four parcels or less as determined by the director of public works. The procedure outlined in this section shall govern the processing and requirements for boundary adjustments, pursuant to the Subdivision Map Act Section 66412(d), General Plan, and local ordinances. This wavier may apply to lot line adjustments or merger of four parcels or less as determined by the City Engineer. 26.34.020 Application requirements. An application for parcel map waiver, applicable fees, maps, exhibits, and current title report shall be filed with the department of environmental services Department of Development Services and shall include such data and information as may be prescribed by the director of environmental services City Engineer and director of public works Director of Development Services. 26.34.030 Planning commission action Review and Approval. The planning commission Director of Development Services shall consider the application for a waiver of a parcel map requirement within forty-five days after the filing of the application. The planning commission Director of Development Services shall grant a waiver, provided that it finds that the proposed adjustment and the resulting parcels comply with applicable requirements with the local General Plan, any applicable Specific Plan, and zoning and building ordinances, floodwater drainage control, appropriate improved public roads, sanitary disposal facilities, water supply availability, environmental protection, and other requirements of this title. If a waiver is granted, a certificate of compliance shall be filed with the county recorder, which certificate shall describe the real properties involved, name the owners thereof, and state that a waiver for a lot line adjustment has been granted by action of the planning commission Director of Development Services, giving the date thereof. “ VIII. REVISIONS TO PALM DESERT MUNICIPAL CODE CHAPTER 27.12 REQUIREMENTS AND STANDARDS OF LAND ALTERATION, SECTION 27.12.045 CONTROL OF BUILDING PAD ELEVATION, SUBSECTION C. “C. Where the property is subject to a tentative tract map or a final tract map that provides elevations for the property to be graded, the pad elevations shall conform Page 216 Attachment “2” - Redline of Municipal Code Updates 72500.00001\31635046.1 to the applicable approved map. If the proposed elevations vary more than six inches from the elevations of the approved map, the revised elevations must be reviewed by the City Engineer and approved through the same public hearing process Director of Development Services, if any, through which the map was originally approved. The Director of Development Services may refer the request to a public hearing process for approval.” IX. REVISIONS TO PALM DESERT MUNICIPAL CODE CHAPTER 5.10 SHORT- TERM RENTALS, SECTION 5.10.020 PURPOSE, SUBSECTION A. “A. The purpose of this chapter is to regulate privately-owned residential dwellings within the city including Homeowner’s Associations used as short-term rental units, ensure that transient occupancy taxes (TOT) are paid and collected, and minimize the potential negative effects of short-term rental units on surrounding residential neighborhoods.” X. REVISIONS TO PALM DESERT MUNICIPAL CODE CHAPTER 5.10 SHORT- TERM RENTALS, SECTION 5.10.030 DEFINITIONS The following definition in alphabetical order between the definitions of “Good Neighbor Brochure” and “Mixed residential district (R-2)”: “Homeowners’ Association” means governing board of a common interest development, formed under the Davis Sterling Act (California Civil Code § 4100), where there exists a common area owned by the association or owners of separate interests, there has been recorded a declaration and final subdivision map, there has been conveyed to each homeowner a separate interest coupled with an interest in the common area or membership in the association, and the governing board is elected by the association of homeowners, and where the association includes all of the residential properties within the recorded subdivision map. Page 217 [This page has intentionally been left blank.] Page 218 STAFF REPORT CITY OF PALM DESERT PUBLIC AFFAIRS DEPARTMENT MEETING DATE: April 28, 2022 PREPARED BY: Vanessa Mager, Management Analyst REQUEST: Adopt a Resolution rescinding Resolution No. 2019-77, and adopting a revised Community Event Sponsorship Policy Recommendation By Minute Motion: Waive further reading and adopt Resolution No.2022-____; rescinding Resolution No. 2019-77 and adopting a revised Community Event Sponsorship Policy. Strategic Plan Approval of this Resolution would help address the following priorities as specified in the 2013-2033 Strategic Plan, Envision Palm Desert – Forward Together: - Economic Development Priority 3: Create and attract entertainment and events to enhance and expand the Palm Desert economy and lifestyle. - Parks and Recreation Priority 3: Make recreational and exercise opportunities available in all public spaces. - Tourism and Marketing Priority 2: Grow existing events and develop new events to enhance the desirability of Palm Desert as a year-round destination. Background Analysis In 2019 the City Council adopted a community event sponsorship policy. That policy created a formal sponsorship process including, general requirements, eligibility criteria, conditions, and an approval process. While the policy assisted in forming a fair, transparent, and consistent procedure, Staff has found portions of the policy requiring more clarity and adherence. Below is a more detailed outline of improvement areas and the recommended solutions. The proposed solutions noted in the table below have been addressed in the revised community event sponsorship policy. Page 219 April 28, 2022 - Staff Report ADOPT A RESOLUTION RESCINDING RESOLUTION NO. 2019-77, AND ADOPTING A REVISED COMMUNITY EVENT SPONSORSHIP POLICY Page 2 of 2 Areas of improvement Proposed Solutions “Double dipping” issues (Ex: An organization requesting funding from Outside Agency as well as from Community Sponsorship during the same fiscal year) 1. “Double dipping” is discouraged by both the Outside Agency and Community Sponsorships as noted on both applications. 2. Organizers are to disclose any other funding received by the City of Palm Desert. 3. Staff has created and updates a collective tracking system for outside agency funding and community sponsorships to monitor all requests. 4. This information will be shared with Council during budget sessions or with the subcommittee, so that this is considered during the funding discussions. 4.This double dipping excludes individual tickets to events and table sponsorships. Staff Evaluation process is unclear. 1. Create revised evaluation criteria with specific guidelines on how applications are evaluated in each category. Ex. City funding should not exceed more than 35% of an event’s total expenses. Ex. Venue costs (where the City has not negotiated the rental fee), salaries, prizes and awards will not be eligible for sponsorship. 2. Have staff evaluations and recommendations reviewed on an annual basis by the Outside Agency subcommittee prior to budget sessions. The Subcommittee can recommend exceptions to the policy that will be brought for approval during budget study sessions. For applications received after the deadline for budget consideration, the subcommittee would meet to review per a schedule defined in the policy, Policy Adherence City staff shall adhere to the Sponsorship Policy for every request. If a request is denied, the decision may be appealed to the full City Council, per the policy. Creating fair and equitable award guidelines 1. Create a maximum sponsorship ($2,500) for all 5K walk/run events. 2. All sponsorship requests must follow the policy and provide all requested documentation. 3. Community Sponsorship shall be solely for sponsorship of events. 4. Applications are encouraged to be submitted during the budget cycle. Applications will be accepted throughout the year; however, available Page 220 April 28, 2022 - Staff Report ADOPT A RESOLUTION RESCINDING RESOLUTION NO. 2019-77, AND ADOPTING A REVISED COMMUNITY EVENT SPONSORSHIP POLICY Page 2 of 2 funding may be depleted prior to the end of the fiscal year. A formal timeline will be created. Fiscal Analysis Currently, City-Sponsorship Events has an approved FY 2021/2022 budget of $511,500 in account 1104416-4306201. The adoption of this resolution does not have any fiscal impact on this FY 2021/2022. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Robert W. Hargreaves City Attorney Thomas Soule Thomas Soule Public of Affairs Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager, L. Todd Hileman: L. Todd Hileman ATTACHMENTS: 1. Resolution 2. Policy on Community Event Sponsorships 3. Exhibit A – Sponsorship Agreement Page 221 RESOLUTION NO. 2022-_____ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, RESCINDING RESOLUTION NO. 2019-77, AND ADOPTING A REVISED COMMUNITY EVENT SPONSORSHIP POLICY WHEREAS, The City of Palm Desert City Council previously adopted Resolution No. 2019-77 to provide a policy regarding community event sponsorship; WHEREAS, The City of Palm Desert has found Resolution No. 2019-77 to not include adequate measurable and clear evaluation guidelines; and WHEREAS, The City of Palm Desert would like to create fair and equitable award guidelines; and WHEREAS, The City of Palm Desert has collected best practices from other City’s adopted community event sponsorship policies; and WHEREAS, such community event sponsorship policy is attached hereto and made a part hereof marked as Exhibit A, which guidelines for disbursement or discretionary funds to sponsor community events produced by qualified organizations; and NOW THEREFORE, the City of Palm Desert, State of California, hereby finds and resolves that it approves the adoption of the Community Event sponsorship policy, as attached hereto as Exhibit “A”. PASSED, APPROVED, AND ADOPTED on this 28th day of April, 2022 by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: JAN C. HARNIK, MAYOR ATTEST: ANTHONY J. MEJIA, CITY CLERK Page 222 CITY OF PALM DESERT ADMINISTRATIVE PROCEDURES Subject Community Event Sponsorship Policy Policy No. CMGR-002 Date Issued: Approved by Resolution No. 2022- Authored by Public Affairs I. PURPOSE A. This policy establishes guidelines for disbursement of discretionary funds approved by City Council, as well as in-kind services, to sponsor community events produced by qualified organizations. The City recognizes that sponsorships play an important role in supporting our community, as well as to promote the tourism and economic development efforts of the City, nevertheless the City is committed to being a good steward of taxpayer money while supporting events. II. SCOPE A. This policy applies to all City sponsorship support of external events where the City provides funds to an outside organization. This policy does not apply to table sponsorship requests, nor does it apply to the third-party sponsorships of City produced events. B. The granting of City funds or in-kind support is evaluated based on the proposed event’s impact on the community. Special attention is paid to sponsorships that promote Palm Desert’s attractiveness as a place to visit and/or live, celebrate the heritage of the City and its environs, and enrich the character and quality of life of its residents and visitors. C. The City is under no obligation to approve a requested sponsorship. The City Council and City Manager reserve the right to deviate from the policy and criteria contained herein when they believe it is the City’s best interest to do so. Page 223 Page 2 of 7 III. DEFINITIONS A. “Sponsorship” means any financial or in-kind support from the City (City staff time, public safety services, use of City facilities or property, permit fees, etc.) to the organizing agency that helps offset the costs of the event operations. B. “Sponsorship Agreement” means a binding agreement between the City and a company, organization, or individual to pay a fee, provide services, share products or any combination thereof, including advertising and promotional opportunities between the City and a company, organization, or individual. C. “Event” means an occurrence of a local celebration, fundraiser, athletic, cultural, or educational activity designed to attract a public audience which benefits the residents and visitors of the City of Palm Desert. (i.e., walk, run, concert, parade, etc.) D. “Programs” means an on-going, set of structured activities. (i.e., classes, performances, or procedures, etc.) E. Outside Agency Funding is a grant program for non-profit, school, and community- based organizations, who provide for unmet needs and services that serve the City of Palm Desert and its residents. F. Table Sponsorship means purchase of a table at a Local Event, excluding the individual purchase of tickets at the same table. G. “Community Sponsorship subcommittee” means the subcommittee is comprised of the Mayor and Mayor Pro Tem, the Director of Finance, the Public Affairs Manager and the Public Affairs Staff member overseeing Community Sponsorship and City Produced Events. IV. GENERAL REQUIREMENTS, ELIGIBITY CRITERIA AND CONDITIONS A. Due to limited resources, not all special event sponsorship requests are funded. The number of special events that the City sponsors varies annually. The City will evaluate each request based upon available funds, satisfaction of the eligibility criteria, and compliance with the application requirements set forth below. B. Applicants for special events sponsorships must meet all the following requirements, eligibility criteria, and conditions: 1. Applicants requesting event sponsorships in the amounts of $2,500 to $20,000 shall use the City’s community event sponsorship application. Incomplete applications will not be accepted. The City may require Page 224 Page 3 of 7 additional information, as necessary, to evaluate compliance with this policy. 2. Applicants requesting event sponsorships over $20,000 shall present their request to the Community Sponsorship subcommittee for recommendation, prior to presenting to City Council at a schedule Council Meeting. 3. Event and promotion must take place within Palm Desert city limits with limited exceptions. Reason(s) for not holding the proposed event or promotion in the City of Palm Desert must be stated on the application. Exemption from this requirement will be provided on a case-by-case basis and will favor activity promoting the City of Palm Desert as a desirable place to live, visit and do business. 4. The applicant must also submit a Special Events Application/Agreement a minimum of 120 days prior to the event. 5. The applicant agrees to use the City’s sponsorship funds exclusively for the event represented in its application. Said funds are not designated for salaries or salary reimbursements or budget subsidy. 6. The recipient of sponsorship funds or in-kind services shall provide the City recognition as a sponsor in exchange for the funds or in-kind services in a method consistent with other sponsors. In no event shall the recognition for the City's funds or in-kind services be less than that provided to other sponsors who have contributed the same total financial or in-kind support. 7. The applicant must be ready, willing, and able to enter a contractual agreement for sponsorship with the City and provide a certificate of liability insurance or proof of self-insurance, if applicable. Please see Exhibit A. 8. Special event sponsorship applications are limited to one per year, per taxpayer identification number. 9. Failure to hold event as depicted in application will result in forfeiture of sponsorship funds. 10. Sponsorships will be approved on a competitive basis and are not guaranteed. Applicants should be aware that they may not receive the full amount of the sponsorship requested. 11. Sponsorship approvals are made on an annual basis and shall be considered as a one-time approval. Approval for sponsorship in one year does not imply or guarantee that the City will approve sponsorship for the same event or organization in subsequent years. Page 225 Page 4 of 7 12. An official Post-Event Evaluation form must be submitted to City staff within (90) days following the conclusion of a sponsored event. 13. Application and all supporting documents are to be submitted to the Public Affairs Division, City of Palm Desert, 73-510 Fred Waring Drive, Palm Desert, California 92260, to be considered for funding. Applications must be submitted a minimum of six months prior to event date. V. INELIGIBLE ORGANIZATIONS AND ACTIVITIES OR PROJECTS A. Examples of ineligible organizations or activities include, but are not limited to: 1. Any type of programing 2. An event or activity that promotes a political viewpoint, provides for a political purpose, or causes participants to engage in or otherwise affiliate or express an endorsement of partisan political functions or activities. 3. A private individual for his/her own use. 4. A political, politically affiliated, or political action organization. 5. Outside Agency Funded Organizations, receiving funds concurrently (during the same fiscal year). VI. ASSESSMENT CRITERIA A. Requests for donation, and/or sponsorship from schools or school-related groups shall be processed through Outside Agency Funding. B. Funds are not to be used for venue costs, salaries, prizes, and awards. C. Community Sponsorship funds are solely for sponsorship of Events (i.e., festivals, concerts, walks/runs, fashion shows, luncheon, etc.). Ongoing programming is not considered an Event and these requests will be redirected to Outside Agency. D. Sponsorship request for the inaugural year of an Event, the sponsorship request may not exceed 50% of Event budget (if sponsorship request includes in-kind, the value of the in-kind items may not exceed 50% of the Event budget). E. All other sponsorship requests beyond the inaugural year is may not exceed 35% of Event budget (if sponsorship request includes in-kind, the value of the in-kind items may not exceed 35% of the Event budget). F. Sponsorship request for a 5K walk/run shall be eligible for a maximum sponsorship of $2,500. Page 226 Page 5 of 7 G. Registered local nonprofit corporation or local 501(c) organization with tax-exempt status will be given priority funding consideration. H. Applicants are not guaranteed to receive the amount of funding requested or be funded at all. Requests will not be considered approved until it is approved by the City Council or City Manager, as appropriate. The City Council reserves the right to deviate from the criteria contained herein when they believe it is the City’s best interest to do so. VII. FUNDING TIMELINE A. The funding timeline/application reviews are outlined below (all dates are subject to change): B. Rounds 2, 3 and 4 will only take place as long as there is funding available in the Community Sponsorship budget, not already allocated during the 1st Round. Applicants are strongly encouraged to submit sponsorship request applications during the 1st round in order to have a higher chance of receiving funding. C. 1st Round: December 1st – February 15th: Applications are due for the upcoming fiscal year. February: Applications are reviewed by the City’s Community Sponsorship / Charitable Contributions Committee for their budget recommendation. March: Budget recommendations are submitted to the Finance Department. April: Applications are reviewed by the City Manager. May: City Council reviews the recommendations presented by the City’s Community Sponsorship / Charitable Contributions Committee and the City Manager at a public meeting. June: City Council approves selected applicants for funding in the upcoming fiscal year (4:00 p.m., Council Chamber) July: All applicants are contacted and advised of approved funding. Agreements are issued to successful applicants for funds available beginning July 1. Funds are issued a maximum of 60 days prior to the event and only upon approved insurance and a fully executed Sponsorship agreement. D. 2nd Round Deadline: June, 30th by 5pm Applications received after Feb. 15th, with requests under $7,500: Will be presented to the City’s Community Sponsorship / Charitable Contributions Committee for recommendation and then to City Manager: first week of August, for approval. Page 227 Page 6 of 7 Applications received after Feb. 15th, with requests over $7,500: Will be presented to the City’s Community Sponsorship / Charitable Contributions Committee for recommendation and then presented to the City Council: First Council meeting in August. E. 3rd Round Deadline: October 31st, by 5pm Applications received after June 30th, with requests under $7,500: Will be presented to the City’s Community Sponsorship / Charitable Contributions Committee for recommendation and then to City Manager: First week of December Applications received after June 30th, with requests over $7,500: Will be presented to the City’s Community Sponsorship / Charitable Contributions Committee for recommendation and then presented to the City Council: First Council Meeting in December. F. 4th Round Deadline: February 28th by 5pm Applications received after Oct. 27th, with requests under $7,500: Will be presented to the City’s Community Sponsorship / Charitable Contributions Committee for recommendation and then to City Manager: First week of April. Applications received after Oct. 27th, with requests over $7,500: Will be presented to the City’s Community Sponsorship / Charitable Contributions Committee for recommendation and then presented to the City Council: First Council Meeting in April. VIII. ADMINISTRATION AND ENFORCEMENT OF POLICY A. The City Council designates the City Manager to administer the Sponsorship Policy. This delegation is with the power of re-designation to appropriate staff. B. The City Manager or her/his designee shall review all Sponsorship applications and determine compliance with this policy. C. On an as needed basis, the City Manager or her/his designee may refer any controversial proposed sponsorship straight to the City Council for approval or rejection with a majority vote. D. Applicant must comply with all other applicable City, state and federal laws and regulations Page 228 Page 7 of 7 IX. APPEALS A. Applicants who have been denied sponsorship shall have ten (10) days from the date of the denial to request an appeal hearing with the entire City Council. The appeal request shall be in writing and submitted to the City Manager, or his/her designee. Within twenty (20) days of receiving the appeal request, the City Manager shall provide the appeal hearing at an upcoming City Council meeting. The entire City Council shall have the right to overrule the application denial, uphold the application denial, or take any other action deemed appropriate. Page 229 CONTRACT NO._____________ Page 1 of 12 [MODEL - REMOVE THIS TITLE WHEN USED] SPONSORSHIP AGREEMENT This Sponsorship Agreement (“Agreement”) is entered into this _____ day of ________, 20___, by and between the City of Palm Desert (“City”), a California public entity, and [***INSERT NAME OF COMPANY], a [INSERT TYPE OF BUSINESS, I.E., CORPORATION (INCLUDE STATE OF INCORPORATION), LIMITED LIABILITY COMPANY, SOLE PROPRIETORSHIP, ETC.], (“Consultant” or “Vendor”). The City and Consultant are sometimes collectively referred to in this Agreement as the “Parties” and individually referred to as “Party.” The Agreement is made in light of the following Recitals: RECITALS WHEREAS, Consultant wishes to produce an event entitled [***INSERT NAME OF EVENT***] WHEREAS, the City desires to sponsor the [***INSERT NAME OF EVENT***]. NOW, THEREFORE, in consideration of the mutual promises set forth herein, and in light of the above Recitals, which are hereby made a part of this Agreement, the Parties hereby agree as follows: AGREEMENT 1. Term: The Term of this Agreement shall commence on [***INSERT DATE***] to [***INSERT DATE***. 2. Responsibilities of the Parties: 2.1 Responsibilities of City: 2.1.1 The City shall sponsor the [***INSERT NAME OF EVENT***] to be held on [***INSERT DATE***]. 2.1.2 [***INSERT ADDITIONAL RESPONSIBLITIIES OF THE CITY***] 2.1.3 [***INSERT ADDITIONAL RESPONSIBLITIIES OF THE CITY ***] 2.2 Responsibilities of Consultant: 2.2.1 Consultant shall produce all aspects of the [***INSERT NAME OF EVENT***]. 2.2.2 Consultant shall provide sponsorship benefits to the City, as outlined in Exhibit B. 2.2.3 Consultant shall grant access to all photography and video taken during the event to cross promote on the City’s website. 2.2.4 Consultant will prominently feature City in advertising including social media, television, radio, and e-blasts. 2.2.5 Consultant will feature City in photo and video opportunities including signage. 3. Compensation: Page 230 CONTRACT NO._____________ Page 2 of 12 3.1 The City shall pay Consultant a total of [***INSERT AMOUNT WRITTEN OUT***] ($[***INSERT NUMBER***]) upon final approval of insurance documents by the City. 4. Remedies and Termination: 4.1 Remedies: The Parties agree to provide each other with written notice of nonperformance, unsatisfactory performance, or any other dispute arising from the terms of this Agreement within ten (10) days of the deficiency or dispute being identified. The Parties shall have thirty (30) days from receipt of said written notice to correct any performance deficiencies. The Parties may mutually agree to extend the thirty (30) day cure period. The Parties agree to cooperate in good faith to resolve any performance issues or dispute arising from this Agreement. Either Party in its sole and absolute discretion may waive a default that cannot be cured. 4.2 Termination: In the event any dispute cannot be resolved under these procedures, each Party retains such legal and equitable remedies as it may have under the law to enforce this Agreement. If either Party defaults under this Agreement and does not timely cure such default, the non-defaulting Party may terminate this Agreement upon providing written notice of termination of this Agreement to the defaulting Party, in which case this Agreement shall terminate. 4.3 Termination without cause: Either Party may terminate this Agreement upon at least thirty (30) days prior written notice to the other Party. If Consultant terminates this Agreement, pursuant to this Section 4.3, the City shall be entitled to a pro rata refund of any prepaid amounts. 5. Insurance: [***CITY RISK MANAGER TO REVIEW PRIOR TO EACH USE IN CASE OTHER COVERAGE IS NEEDED (E.G. CYBER LIABILITY, ETC.)***] Without limiting Consultant’s indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to City. 5.1 General Liability Insurance: Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. 5.2 Automobile Liability Insurance: (***IF APPLICABLE-CHECK WITH RISK MANAGER. ENTER [Reserved], IF NOT APPLICABLE) Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. The City’s Risk Manager may Page 231 CONTRACT NO._____________ Page 3 of 12 modify this requirement if it is determined that Consultant will not be utilizing a vehicle in the performance of his/her duties under this agreement. 5.3 Workers’ Compensation Insurance: (***IF APPLICABLE-CHECK WITH RISK MANAGER. ENTER [Reserved], IF NOT APPLICABLE) Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City of Palm Desert, its officers, agents, employees and volunteers. 5.4 Umbrella or Excess Liability Insurance: Consultant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions: (1) A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; (2) Pay on behalf of wording as opposed to reimbursement. (3) Concurrency of effective dates with primary policies; and (4) Policies shall “follow form” to the underlying primary policies. (5) Insureds under primary policies shall also be insureds under the umbrella or excess policies. 5.5 Liquor Liability Insurance: (***IF APPLICABLE-CHECK WITH RISK MANAGER. ENTER [Reserved], IF NOT APPLICABLE) Vendor shall provide liquor liability insurance with a limit of no less than $1,000,000 per occurrence. 5.6 Aviation Liability Insurance: (***IF APPLICABLE-CHECK WITH RISK MANAGER. ENTER [Reserved], IF NOT APPLICABLE) Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the ownership, maintenance or use of Unmanned Aerial Vehicles (UAVs) by Consultant’s officers, officials, employees, subcontractors, or volunteers. If an UAV is used as part of an event, aviation liability insurance shall be required on an “occurrence” basis, including property damage and bodily injury with limits no less than $1,000,000 per occurrence, and $2,000,000 in the aggregate. This coverage may also be provided by endorsement to a Commercial General Liability policy. City shall be named additional insured on the policy. Page 232 CONTRACT NO._____________ Page 4 of 12 OTHER PROVISIONS OR REQUIREMENTS 5.7 Proof of Insurance: Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 5.8 Duration of Coverage: Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his/her agents, representatives, employees or subconsultants. 5.9 Primary/Non-Contributing: Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured. 5.10 City’s Rights of Enforcement: In the event any policy of insurance required under this Agreement does not comply with these specifications, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. 5.11 Acceptable Insurers: All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager. 5.12 Waiver of Subrogation: All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers and shall require similar written express waivers and insurance clauses from each of its subcontractors. Page 233 CONTRACT NO._____________ Page 5 of 12 5.13 Enforcement of Contract Provisions (non estoppel): Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 5.14 Requirements Not Limiting: Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 5.15 Notice of Cancellation: Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. 5.16 Additional Insured Status: General liability, automobile liability, and if applicable, liquor liability, pollution liability and cyber liability, policies shall provide or be endorsed to provide that the City of Palm Desert and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. 5.17 Prohibition of Undisclosed Coverage Limitations: None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 5.18 Separation of Insureds: A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy (ies) shall not contain any cross-liability exclusions. 5.19 Pass Through Clause: Consultant agrees to ensure that its sub-consultants, sub- contractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review. 5.20 City’s Right to Revise Specifications: The City or its Risk Manager reserves the right at any time during the term of the contract to change the amounts and types of Page 234 CONTRACT NO._____________ Page 6 of 12 insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant’s compensation. If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice. 5.21 Self-Insured Retentions: Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. 5.22 Timely Notice of Claims: Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 5.23 Additional Insurance: Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 5.24 Safety: Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 6. Indemnification: To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subconsultants or agents in connection with the performance of the Consultant’s services or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. 7. Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Page 235 CONTRACT NO._____________ Page 7 of 12 Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services under this Agreement are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the services available to interested parties upon request and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 8. Force Majeure: Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by occurrence of a Force Majeure Event. A Force Majeure Event shall mean a cause or event that is beyond the reasonable control of the Party claiming a Force Majeure Event. Force Majeure Events include, but are not limited to, acts of God, fires, floods, rain, heavy wind, earthquake, explosions, riots, wars, sabotage, terrorism, vandalism, accident, restraint of government, governmental act, injunctions, destruction of site, pandemics, epidemics, and other like events. In the event City has advanced funds for the sponsorship to the extent not utilized directly for the event, any unused portion shall be returned 9. Notices: Whenever it shall be necessary for either Party to serve notice on the other regarding this Agreement, such notice shall be served either in person, by certified mail, return receipt requested to the addresses below. Consultant: [INSERT BUSINESS NAME] [INSERT STREET ADDRESS] [INSERT CITY STATE ZIP] ATTN: [INSERT NAME AND TITLE] City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Attn: [INSERT NAME AND TITLE] Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. Page 236 CONTRACT NO._____________ Page 8 of 12 10. Legal Costs: In the event of any legal action between the City and Consultant arising out of the obligations of the Parties pursuant to this agreement, the prevailing Party will be entitled to payment of its costs and expenses, including its reasonable attorneys' fees. 11. Binding Effect; Successors: Neither Party shall assign or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other Party, which may be given in such Party's sole and absolute discretion. Any attempt to do so shall be null and void, and any assignees or transferees shall acquire no right or interest by reason of such attempted assignment or transfer. This Agreement shall bind and inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns and all of the Parties thereto shall be jointly and severally liable hereunder. 12. Counterparts: This Agreement may be executed in counterparts each of which shall be deemed an original and all of which together shall constitute one and the same instrument which shall be binding upon the Parties notwithstanding that the Parties may not be signatories to the same counterpart or counterparts. The Parties may integrate their respective counterparts by attaching the signature pages of each separate counterpart to a single counterpart. 13. Further Assurances: Whenever requested to do so by the other Party, each Party shall execute, acknowledge, and deliver any further conveyances, assignments, confirmations, satisfactions, releases, powers of attorney, instruments of further assurance, approvals, consents, and any documents that are necessary, expedient, or proper to complete anything contemplated by this Agreement. In addition, each Party shall do any other acts and execute, acknowledge, and deliver any requested documents in order to carry out the intent and purpose of this Agreement. 14. Modifications: All modifications to this Agreement must be in writing and signed by the Parties. 15. Third-Party Rights: Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies. 16. Governing Law; Choice of Venue: This Agreement shall be governed and construed in accordance with California law, including the Fair Political Practices Act of 1974. Venue shall be Riverside County, California. 17. Severability: If any provision of this Agreement becomes or is declared by a court to be illegal, unenforceable or void, that clause will be omitted, and the remainder of the Agreement will continue in full force and effect. Such holding shall in no way affect the validity or enforceability of this Agreement. 18. Entire Agreement: This Agreement is the entire agreement between the Parties and supersedes any prior or contemporaneous representations, understandings, or agreements, whether written or oral. Page 237 CONTRACT NO._____________ Page 9 of 12 [SIGNATURES ON NEXT PAGE] Page 238 CONTRACT NO._____________ Page 10 of 12 SIGNATURE PAGE TO SPONSORSHIP AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND [***INSERT NAME***] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written. CITY OF PALM DESERT By: TODD L. HILEMAN CITY MANAGER ATTEST: By: ANTHONY J. MEJIA CITY CLERK APPROVED AS TO FORM: By: Best Best & Krieger LLP CITY ATTORNEY [***INSERT NAME OF CONSULTANT***] [***INSERT NAME OF LEGAL ENTITY***] [IF CORPORATION, TWO SIGNATURES, PRESIDENT OR VICE PRESIDENT AND SECRETARY OR TREASURER REQUIRED] By: Its: Printed Name: [DELETE THE FOLLOWING SIGNATURE LINE AND SECOND NOTARY ACKNOWLEDGEMENT IF SECOND SIGNATURE NOT REQUIRED] By: Its: Printed Name: Ins QC: ________ ______ CC QC: ______ Page 239 CONTRACT NO._____________ Page 11 of 12 EXHIBIT "A" SCOPE OF SERVICES [Description of Event] Page 240 CONTRACT NO._____________ Page 12 of 12 EXHIBIT "B" SCHEDULE OF SERVICES [Sponsorship Benefits] Page 241 [This page has intentionally been left blank.] Page 242 CONTRACT NO. __________ STAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: April 28, 2022 PREPARED BY: Ryan Gayler, Project Manager REQUEST: Award Contract No. ______ in the amount of $433,132.50 to Engineering Resources of Southern California, Inc. of Redlands, California, for Professional Engineering and Design Services for the Haystack Channel Improvements (Project No. 509-22) ___________________________________________________________________________ Recommendation By Minute Motion: 1. Award Contract No. ________ in the amount of $433,132.50 to Engineering Resources of Southern California, Inc. of Redlands, California, for professional engineering and design services for the Haystack Channel Improvements; 2. Appropriate $500,000 from unobligated Fund 420 monies to the project account; 3. Authorize the City Manager or designee to review and approve written contract amendment requests for unanticipated conditions per Section 3.30.170 of the Palm Desert Municipal Code; and 4. Authorize the City Manager to execute the contract. If the above actions are approved, funds are available from Fund 420, the Capital Improvement Project - Drainage Fund. Strategic Plan The proposed project is a maintenance function, and as such, there is no impact to the goals of the strategic plan. Background Analysis The Haystack Channel runs along the north side of Haystack Road between Highway 74 and Portola Avenue. Storm water from neighborhoods north and south of Haystack Road are conveyed into the open channel and conveyed through Indian Wells into the Whitewater River Channel. The western portion of the channel, from Highway 74 to Heliotrope Drive, is a landscaped green belt lined with turf and trees that acts as a bio- swale. East of Heliotrope Drive, the channel is a naturalized wash with native shrubs and trees growing along the channel walls and bed. Page 243 CONTRACT NO. __________ April 28, 2022 - Staff Report Award Design Contract for the Haystack Channel Improvements (Project No. 509-22) Page 2 of 3 City staff have received communications from residents expressing concern about the condition of the channel. Representatives of the Marrakesh Country Club (MCC) have noted that the earthen wall between the channel and MCC has been eroded by storms over the years. Others have expressed concern about the dead vegetation in the channel and the possibility that the debris could restrict the flow of the water and block the undercrossing at Portola Avenue. The City issued a request for proposals that addresses the previously mentioned concerns as well as environmental, utility, geotechnical, and hydrological issues. On February 23, 2022, three proposals were received: Consultant Location Score ERSC, Inc. Redlands, CA 1 Kimley Horn Indian Wells, CA 2 Dokken Engineering San Diego, CA 3 The internal selection committee, comprised of representatives from the Public Works and Planning departments reviewed the qualifications, technical approach, experience, and cost proposals from the three consultants. Staff determined that Engineering Resources of Southern California, Inc. (ERSC) is the most qualified consultant to perform the services requested in the project, based on: • Similar relevant project experience • Project team professional qualifications • Sub-consultant qualifications • ERSC has provided excellent service to the City on previous projects Staff contacted some of the municipalities and agencies where ERSC has recently completed projects and the project managers have indicated that ERSC is well qualified to perform the engineering and design services specified in the request for proposals. The committee recommends awarding the contract to ERSC in the amount of $433,132.50. Fiscal Analysis The funding for the engineering and design of the Haystack Channel Improvements is currently budgeted for Fiscal Year 22/23. However, due to the community input that City staff has received, we are proposing to advance the budget for engineering design to the current fiscal year. The 2-Year funding breakdown for the project is as follows: Page 244 CONTRACT NO. __________ April 28, 2022 - Staff Report Award Design Contract for the Haystack Channel Improvements (Project No. 509-22) Page 3 of 3 Project Funding Source Fiscal Year Description Budget for this Project Haystack Channel Improvements Fund 420 FY21/22 Design $500,000 FY22/23 Construction $1,000,000 Total $1,500,000 * Bolded amount is the subject of this request. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Robert W. Hargreaves City Attorney Andy Firestine Andy Firestine Director of Public Works Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager, L. Todd Hileman: L. Todd Hileman CONSULTANT: ERSC, Inc. 1861 West Redlands Boulevard Redlands, CA 92373 ATTACHMENT: 1) Agreement 2) Proposal 3) Vicinity Map Page 245 1 Contract No. ____________ CITY OF PALM DESERT PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 14th day of April, 2022, by and between the City of Palm Desert, a municipal corporation organized under the laws of the State of California with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260- 2578, County of Riverside, State of California (“City”) and Engineering Resources of Southern California, Inc., a California Corporation, with its principal place of business at 1861 West Redlands Boulevard, Redlands, CA 92373 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Project. The City is a public agency of the State of California and is in need of professional services for the following project: Professional Engineering and Design Services for the Haystack Channel Improvements (hereinafter referred to as “the Project”). 2.2 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant is duly licensed and has the necessary qualifications to provide such services. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from April 15, 2022, to June 30, 2023, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Page 246 2 Consultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner in accordance with the Schedule of Services set forth in Exhibit "A" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Moe Ahmadi, P.E., Vice President. 3.2.5 City's Representative. The City hereby designates Andy Firestine, Assistant City Manager, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the scope of services or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee. 3.2.6 Consultant's Representative. Consultant hereby designates John M. Brudin, P.E., President, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling Page 247 3 necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement. Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 3.2.10 Laws and Regulations; Employee/Labor Certification. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause. Page 248 4 3.2.10.1 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. 3.2.10.2 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.2.10.3 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. 3.2.11 Insurance. 3.2.11.1 Minimum Requirements. Without limiting Consultant’s indemnification of City, and prior to commencement of the Services, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to City. (A) General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. (B) Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non- owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. The City’s Risk Manger may modify this requirement if it is determined that Consultant will not be utilizing a vehicle in the performance of his/her duties under this Agreement. (C) Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. Page 249 5 (D) Workers’ Compensation Insurance. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, its officers, agents, employees, volunteers and representatives. (E) Umbrella or Excess Liability Insurance. Consultant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions: (1) A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; (2) Pay on behalf of wording as opposed to reimbursement; (3) Concurrency of effective dates with primary policies; and (4) Policies shall “follow form” to the underlying primary policies. (5) Insureds under primary policies shall also be insureds under the umbrella or excess policies. 3.2.11.2 Other Provisions or Requirements. (A) Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. (B) Duration of Coverage. Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, his/her agents, representatives, employees or subconsultants. (C) Primary/Non-Contributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured. Page 250 6 (D) City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may terminate this Agreement. (E) Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager. (F) Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City, its elected or appointed officers, agents, officials, employees, volunteers, and representatives or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its elected or appointed officers, agents, officials, employees, volunteers and representatives and shall require similar written express waivers and insurance clauses from each of its subconsultants. (G) Enforcement of Contract Provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. (H) Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (I) Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. (J) Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability and cyber liability, policies shall provide or be endorsed to provide that the City and its officers, officials, employees, agents, volunteers and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement, under such policies. This provision shall also apply to any excess/umbrella liability policies. (K) Prohibition of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any Page 251 7 limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (L) Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (M) Pass Through Clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party involved with the Project who is brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subconsultants, subcontractors, and others engaged in the Project will be submitted to City for review. (N) City’s Right to Revise Specifications. The City and the City’s Risk Manager reserve the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in additional cost to the Consultant, the City and Consultant may renegotiate Consultant’s compensation. If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice. (O) Self-Insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. (P) Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. (Q) Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Services. 3.2.12 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Failure to comply with laws, regulations, and ordinances listed in this Section is a violation of federal and state law. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies of this Section. Page 252 8 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed Four hundred Thirty-three thousand, One hundred Forty-two dollars and fifty cents ($433,142.50) without written approval of the City Council or City Manager, as applicable. 3.3.2 Payment of Compensation. Consultant shall submit to City monthly invoices which provide a detailed description of the Services and hours rendered by Consultant. City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Consultant shall submit its final invoice to City within thirty (30) days from the last date of provided Services or termination of this Agreement and failure by the Consultant to submit a timely invoice may constitute a waiver of its right to final payment. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "A" of this Agreement. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City. 3.4 Labor Code Requirements. 3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, volunteers and representatives, free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and Page 253 9 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of Services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, volunteers and representatives free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant. 3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5 Accounting Records. 3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.6 General Provisions. 3.6.1 Termination of Agreement. 3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement. 3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.6.1.3 Early Termination. Notwithstanding any provision herein to the contrary, if for any fiscal year of this Agreement the City Council fails to appropriate or allocate funds for future payment under the Agreement after exercising reasonable efforts to do so, the City may upon seven (7) days’ written notice, order work on the Project to cease. Upon Page 254 10 termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. 3.6.1.4 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: Engineering Resources of Southern California, Inc. 1861 West Redlands Boulevard, Redlands, CA 92373 ATTN: John M. Brudin, P.E. City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 ATTN: Andy Firestine, Assistant City Manager Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.6.3 Ownership of Materials and Confidentiality. 3.6.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents. 3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents Page 255 11 & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by professionals other than Consultant or its subconsultants, or those provided to Consultant by the City. 3.6.3.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant. 3.6.3.4 Indemnification – Documents and Data. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers, agents and representatives free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, agents, volunteers and representatives from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an Page 256 12 objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information. 3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.6.5 [Reserved] 3.6.6 Indemnification. 3.6.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, agents, and representatives free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subconsultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, volunteers or representatives. 3.6.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. 3.6.7 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.6.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.6.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.6.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.6.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 3.6.12 Assignment; Subcontracting. Consultant shall not assign, sublet, or Page 257 13 transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.6.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, volunteers and representatives except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.6.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.6.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.6.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.6.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.6.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. Page 258 14 3.6.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination. [SIGNATURES ON NEXT PAGE] Page 259 15 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC. IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written. CITY OF PALM DESERT By: L. TODD HILEMAN, CITY MANAGER ATTEST: By: ANTHONY J. MEJIA, CITY CLERK APPROVED AS TO FORM: By: Best Best & Krieger LLP City Attorney ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC. By: JOHN M. BRUDIN, P.E., PRESIDENT By: MOE AHMADI, P.E., TREASURER Insurance ID#: QC: Page 260 Exhibit “A” EXHIBIT "A" SCOPE OF SERVICES AND COST PROPOSAL Page 261 Page 262 Page 263 Page 264 Page 265 Page 266 Page 267 Page 268 Page 269 Page 270 Page 271 Page 272 Page 273 Page 274 Page 275 Page 276 Page 277 Page 278 Page 279 Page 280 Page 281 Page 282 Page 283 Page 284 Page 285 Page 286 Page 287 Page 288 Page 289 Page 290 Page 291 Page 292 Page 293 Page 294 Page 295 Page 296 Page 297 Page 298 Page 299 BURSERA WAY EDGEHILL DRFRONTAGE RDFRONTAGE RDTAMARISK ST FRANK FELTROP CIR N FRANK FELTROP CIR S JACKKRAMERLN DONLARSON LN ARTHURASHE LN PANCHOSEGURA LN TONYTRABERT LN ROYEMERSONLN HELENMOODY LN ALICEMARBLE LN KENROSEWALL LN RODLAVER LN ALLEY THRUS H R D ALLEY RAVEN R D ALLEY ALLEYEAGLERDALLEY EAGLE RDALLEY BILLTILDEN LN DONBUDGE LN AMBROSIA ST AMBER ST DEER GRASS DRSWEET-BUSHLNFRONTAGE RDFRANKFELTRO P CIR BURSERAWAY TAMARISK ST GOLDFLOWER ST SALT CEDAR ST TANGIERDRMONTERRA CIRN ALDERL N MARRAKESHDRA B DE L CIRPURSLANEST MA R O C DRR I A T A TRL GALLERIA CT DESERT HOLLY ST AMIR DRSANDSAGE CTARCADIA LNFRANKFELTROPCIRSMEDINADREROSESAGE CTGOLDENBUSH CTRI ATATRLRABAT D RMARRAKESH DRSILVER MOON TRL BUCKBOARD TRL BROKEN ARROW TRL SUNNYTRL SILVER LNSUN LN SIESTA TRL SUN LNBROKEN ARROW TRL FEATHER TRL SUN CORRAL TRLSILVER SPUR TRLMOON LNLITTLE BEND TRL BUCKBOARD TRL BIRDIE WAYTAMARISK ST DESERT CIRCLE DRN E Z P E R C E C T MESQU ITECT ROAD-RUNNERCT D E S E R T V I S T A C T DATEPALM CTDESERTSAGE CTSAQUAROCT OCOT I L L O CTVIST ADEL S O L SMO K E T R E E CT JOSHUACTOASISCTSILVER SPUR T R L M A N Z A - NI T A C T MIRAGECT PINONCTMEDINADRWFRONTAGE RDA G A V E LNPORTOLAAVEBLAZING STAR LNHELIOTROPE DRPORTOLAAVEELAGADIRCIRMARRAKES H D RDESERTLILYDRDESERT ROSE DR SOMIA CTMINZAH W A Y MALABATA DR EL MENA R A CI R EL MEN A R A C I R ABDEL CIREL HASSONCIRAMIR DRAMIR DR MARRAKESH DRMARRAKESH DR A V E N U E J ADIDA ELAGADIRCIR HAYSTACK RD MARIPOSA DRAGAVE LN AGAVE LNSILVER SPUR TRLSKYWARD WAY SOMERA RD BEL AIR RDBEL AIR RD BARBERRY LNLOMA VISTA LN CHIA DRARROW TRLMIRASOLCT SEGURA CTMONTERRACIR W ALAMONTECTMIRADORCTALAMO DRRACQUET LNGRASS CT CLAY CTRACQUET LNCLAY CT GRASS CT MEDINADRS U N L N SUN VALLEY LN SUNDOWN LN OPAL DRDESERT VIEWDR OCOTILLODRHOMESTEAD RD PRAIRIE DRWHITE DR ALANCIR ANITACIR DAVIS RD BEVERLY DRCENTER CTMONTERRACIR S CENTER CTALAMODRBEL AIR RD SOMERA RD SKYWARD WAY HAYSTACK RD CALLIANDRA STLOTUS CTCALLIANDRA ST DEER GRASS DR ALAMODRPRINCESPLUMELNCALICO CACTUS LN CALLIANDRA ST HAYSTACK RD CHIA DRAMBER S T BURSERA WAY EL AGAD I R C I R KAVANAUGH CTHWY 74Date: 2022 Haystack Channel Improvements Project BURSERA WAY EDGEHILL DRFRONTAGE RDFRONTAGE RDTAMARISK ST FRANK FELTROP CIR N FRANK FELTROP CIR S JACKKRAMERLN DONLARSON LN ARTHURASHE LN PANCHOSEGURA LN TONYTRABERT LN ROYEMERSONLN HELENMOODY LN ALICEMARBLE LN KENROSEWALL LN RODLAVER LN ALLEY THRUS H R D ALLEY RAVEN R D ALLEY ALLEYEAGLERDALLEY EAGLE RDALLEY BILLTILDEN LN DONBUDGE LN AMBROSIA ST AMBER ST DEER GRASS DRSWEET-BUSHLNFRONTAGE RDFRANKFELTRO P CIR BURSERAWAY TAMARISK ST GOLDFLOWER ST SALT CEDAR ST TANGIERDRMONTERRA CIRN ALDERL N MARRAKESHDRA B DE L CIRPURSLANEST MA R O C DRR I A T A TRL GALLERIA CT DESERT HOLLY ST AMIR DRSANDSAGE CTARCADIA LNFRANKFELTROPCIRSMEDINADREROSESAGE CTGOLDENBUSH CTRI ATATRLRABAT D RMARRAKESH DRSILVER MOON TRL BUCKBOARD TRL BROKEN ARROW TRL SUNNYTRL SILVER LNSUN LN SIESTA TRL SUN LNBROKEN ARROW TRL FEATHER TRL SUN CORRAL TRLSILVER SPUR TRLMOON LNLITTLE BEND TRL BUCKBOARD TRL BIRDIE WAYTAMARISK ST DESERT CIRCLE DRN E Z P E R C E C T MESQU ITECT ROAD-RUNNERCT D E S E R T V I S T A C T DATEPALM CTDESERTSAGE CTSAQUAROCT OCOT I L L O CTVIST ADEL S O L SMO K E T R E E CT JOSHUACTOASISCTSILVER SPUR T R L M A N Z A - NI T A C T MIRAGECT PINONCTMEDINADRWFRONTAGE RDA G A V E LNPORTOLAAVEBLAZING STAR LNHELIOTROPE DRPORTOLAAVEELAGADIRCIRMARRAKES H D RDESERTLILYDRDESERT ROSE DR SOMIA CTMINZAH W A Y MALABATA DR EL MENA R A CI R EL MEN A R A C I R ABDEL CIREL HASSONCIRAMIR DRAMIR DR MARRAKESH DRMARRAKESH DR A V E N U E J ADIDA ELAGADIRCIR HAYSTACK RD MARIPOSA DRAGAVE LN AGAVE LNSILVER SPUR TRLSKYWARD WAY SOMERA RD BEL AIR RDBEL AIR RD BARBERRY LNLOMA VISTA LN CHIA DRARROW TRLMIRASOLCT SEGURA CTMONTERRACIR W ALAMONTECTMIRADORCTALAMO DRRACQUET LNGRASS CT CLAY CTRACQUET LNCLAY CT GRASS CT MEDINADRS U N L N SUN VALLEY LN SUNDOWN LN OPAL DRDESERT VIEWDR OCOTILLODRHOMESTEAD RD PRAIRIE DRWHITE DR ALANCIR ANITACIR DAVIS RD BEVERLY DRCENTER CTMONTERRACIR S CENTER CTALAMODRBEL AIR RD SOMERA RD SKYWARD WAY HAYSTACK RD CALLIANDRA STLOTUS CTCALLIANDRA ST DEER GRASS DR ALAMODRPRINCESPLUMELNCALICO CACTUS LN CALLIANDRA ST HAYSTACK RD CHIA DRAMBER S T BURSERA WAY EL AGAD I R C I R KAVANAUGH CTHWY 74I VICINITY MAP Page 300 Contract No. C38851 STAFF REPORT CITY OF PALM DESERT PALM DESERT HOUSING AUTHORITY Joint Consideration Request PUBLIC WORKS DEPARTMENT MEETING DATE: April 28, 2022 PREPARED BY: Randy Chavez, Community Services Manager Jessica Gonzalez, Senior Management Analyst REQUEST: Approval of Amendment No. 1 (Contract No. C38851) to Contract No. C38850 for Arboricultural Services with West Coast Arborists, Inc. of Grand Terrace, California, in an annual amount not to exceed $975,000 (Project No. 933-23), and approval of Change Order No. 1 to C38850 for additional services during FY21/22 in the amount of $100,000 (Project No. 933-19) ___________________________________________________________________________ Recommendation By Minute Motion: 1. Approve the Amendment (“Amendment”) to Contract No. C38850 with West Coast Arborists, Inc. of Grand Terrace, California, for Arboricultural Services for City of Palm Desert (“City”), Desert Willow Golf Resort (“Desert Willow”) and Palm Desert Housing Authority (“Authority”), effective July 1, 2022, for a two-year term in an annual amount not to exceed $975,000; 2. Approve Change Order No. 1 to Contract No. C38850 for additional tree pruning services during FY21/22 in the amount of $100,000; 3. Authorize staff to assign additional services/extra work as determined to be necessary due to emergency work to mitigate hazardous conditions and proactively respond to unforeseen issues; and, 4. Authorize the Mayor and/or Executive Director to execute the Amendment Agreement. Funds have been included in the FY 2022/2023 proposed operating budget in the appropriate City, Desert Willow, Assessment Districts, and Housing Authority accounts. Funds for additional pruning in FY 2021/2022 will be allocated to the appropriate Desert Willow and Landscape Services accounts. Committee/Commission Recommendation The Housing Commission reviewed this recommendation at its regular meeting of April 6, 2022. Upon request, a verbal report is provided at the Authority’s regular meeting of April 28, 2022. Page 301 April 28, 2022 - Staff Report Approve Contract No. C38851 to West Coast Arborists, Inc. (Project No. 933-23) Page 2 of 4 Strategic Plan Objective Parks & Recreation, Priority 1 states in part, “Prepare for the financial requirements of maintaining existing parks to the highest level of service”. This request also furthers the Authority’s mission “to serve the citizens of Palm Desert by providing decent, safe, sanitary, and affordable housing”. Background Analysis On July 11, 2019, the City Council approved Contract No. C38850 with West Coast Arborist, Inc., for a term of three years, with an option of two, one-year extensions. This contract consolidates several annual tree maintenance services such as palm tree pruning, broadleaf tree pruning, emergency removal, and tree planting work into one comprehensive contract. It also covers the City’s entire Urban Forest, which includes parks, medians, City-maintained properties, Desert Willow Golf Resort, and the Palm Desert Housing Authority properties. Neighboring cities such as Indio, Coachella, and Palm Springs adopted this unified tree maintenance model and have found this type of agreement beneficial. The contract is set to expire on June 30, 2022; therefore, WCA has agreed to extend the contract for the remaining two contract extensions commencing July 1, 2022, and ending June 30, 2024. Due to the increase in the State’s mandated minimum wage and related operating costs, WCA is requesting a contract increase of 4.5% totaling $85,000 for the extended two-year term. The total not to exceed annual contract amount will be increased from $890,000 to $975,000 to accommodate work performed for the City, Desert Willow Golf Resort and the Housing Authority properties. City staff determined the requested amount is sufficient for the performance of the various arboricultural services needed throughout the City. The proposed Amendment to WCA will continue to provide the same scope of services for annual palm tree pruning and hardwood tree pruning, consistent with existing practices. Emergency work due to vandalism, accidents, and other unforeseen work will be performed on an as needed basis. Under this contract, staff will issue work orders for maintenance and emergency repairs that detail the work to be performed and the timeframe to complete it per the proposed pricing schedule. In addition, during the current Fiscal Year 2021-22, wind events, excessive heat, compliance with ADA requirements necessitated the removal of several trees that were not part of tree maintenance schedule. Specialty work such as the removal of dead plant material and excessive brush in the Haystack channel was also performed. To accomplish this unforeseen work in a timely manner, $50,000 earmarked for the annual palm tree pruning program was used. Due to increased development and above average visitor turnout at the Desert Willow Golf Resort, staff expanded the tree pruning program along the club house and perimeter areas. This work addressed tree encroachment, viewing corridors, and safety issues for a cost of $50,000. Therefore, staff requests approval of Change Order No. 1 in the amount of $100,000 to replenish the palm tree annual contract amount that is scheduled to commence at the end May. Page 302 April 28, 2022 - Staff Report Approve Contract No. C38851 to West Coast Arborists, Inc. (Project No. 933-23) Page 3 of 4 Fiscal Analysis The amount of $981,625 is included in the City’s proposed budget for Fiscal Year (FY) 2022/23 exclusively for tree maintenance. This budget includes annual pruning and emergency work (wind damage, vandalism, vehicle accidents) that occurs throughout the year. Staff will allocate the $975,000 between the City, Desert Willow and Housing Authority according to actual work performed. The following is the estimated allocation budget for each account; however, this does not necessarily mean the full amount will be allocated to each budget nor that the full amount will be spent: FY 2022-23 Account # Budget Total Civic Center Park 1104610- $125,000 Parks 1104611- $125,000 Medians 1104614- $300,000 LLDs 200 Accounts $ 76,625 Desert Willow 4414195-4809200 $225,000 Housing Authority Authority’s Operating Budget Accounts $130,000 $981,625 The additional $100,000 under Change Order No. 1 for Fiscal Year 2021-22 will be allocated to the Desert Willow Golf Resort account and in various Landscape Services Accounts as follows: FY 2021-22 Account Budget Total Civic Center Park 1104610-4337100 $10,000 Parks 1104611-4332001 $20,000 Medians 1104614-4332001 $20,000 Desert Willow GR 4414195-4332000 $50,000 $100,000 LEGAL REVIEW DEPT. REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Robert W. Hargreaves City Attorney Martin Alvarez Martin Alvarez Director of Development Srvs Andy Ramirez Andy Ramirez Deputy Director of Public Works Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager, L. Todd Hileman: L. Todd Hileman CONTRACTOR: West Coast Arborists, Inc. 21718 Walnut Avenue Grand Terrace, CA 92313 ATTACHMENTS: Contract No. C38851, First Amendment to C38850 Payment and Performance Bonds Contractor’s Acceptance Letter Page 303 April 28, 2022 - Staff Report Approve Contract No. C38851 to West Coast Arborists, Inc. (Project No. 933-23) Page 4 of 4 Contractor’s Operating Costs Comparison Page 304 Contract No. C38851 AMENDMENT NO. 1 TO THE ARBORICULTURAL SERVICES BETWEEN THE CITY OF PALM DESERT AND WEST COAST ARBORISTS, INC. 1. Parties and Date. This Amendment No. 1 to the Arboricultural Services Agreement is made and entered into as of this 28th day of April 2022, by and between the City of Palm Desert (“City”) and West Coast Arborists, Inc., a Corporation with its principal place of business at 21718 Walnut Avenue, Grand Terrance, California 92313 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.” 2. Recitals. 2.1 Agreement. The City and Contractor have entered into an agreement entitled Arboricultural Services dated July 11, 2019 (“Agreement” or “Contract”) for the purpose of retaining the services of Contractor to provide citywide arboricultural services. 2.2 Amendment. The City and Contractor desire to amend the Agreement to extend the contract term and add additional compensation. 2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Section No. 3 of the Agreement. 3. Terms. 3.1 Scope of Services and Term. Section 3.1 of the Agreement is hereby amended in its entirety to read as follows: 3.1.2 Term. The term of this Agreement shall be from July 1, 2022, to June 30, 2024, unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services. 3.3 Fees and Payments. Section 3.3 of the Agreement is hereby amended in its entirety to read as follow: 3.3.2 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” of the original agreement. The total compensation shall not exceed Nine Hundred Seventy-Five Thousand and 00/100 ($975,000) annually. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1. Page 305 Contract No. C38851 Page 2 of 3 3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1. 3.4 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5 Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Page 306 Contract No. C38851 Page 3 of 3 SIGNATURE PAGE FOR AMENDMENT NO. 1 TO ARBORICULTURAL SERVICES AGREEMENT BETWEEN THE CITY OF PALM DESERT AND WEST COAST ARBORISTS, INC. IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 to the Arboricultural Services Agreement as of the day and year first above written. CITY OF PALM DESERT Approved By: L. Todd Hileman City Manager Attested By: Anthony J. Mejia City Clerk Approved As To Form: By: Best Best & Krieger LLP City Attorney WEST COAST ARBORISTS, INC. Signature Name Title Signature Name Title QC Insurance ID: _____________ __________ __________ Page 307 Contract No. C38851 PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS That WHEREAS, the City of Palm Desert (hereinafter designated as the “City”), by action taken or a resolution passed April 28, 2022, has awarded to West Coast Arborists, Inc. hereinafter designated as the “Principal,” a contract for the work described as follows: Arboricultural Services, Project No. 933-23 (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated July 11, 2019 (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth. NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal annual sum of Nine Hundred Seventy-Five Thousand Dollars ($975,000) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses. This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond. It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining Page 308 Contract No. C38851 or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code. IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__. (Corporate Seal) Contractor/ Principal By Title (Corporate Seal) Surety By Attorney-in-Fact Title Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto. NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto. QC Insurance ID: _____________ __________ __________ Page 309 Contract No. C38851 PERFORMANCE BOND KNOW ALL PERSONS BY THESE PRESENTS: THAT WHEREAS, the City of Palm Desert (hereinafter referred to as “City”) has awarded to West Coast Arborists, Inc., (hereinafter referred to as the “Contractor”) an agreement for Arboricultural Services, Project No. 933-23 (hereinafter referred to as the “Project”). WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated July 11, 2019, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents. NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of Nine Hundred Seventy-Five Thousand DOLLARS, ($975,000), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15. Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option: (1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or Page 310 Contract No. C38851 (2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents. (3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents. Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor. Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project. The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code. Page 311 Contract No. C38851 IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__). (Corporate Seal) Contractor/ Principal By Title (Corporate Seal) Surety By Attorney-in-Fact Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. (Attach Attorney-in-Fact Certificate) Title The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________. (The above must be filled in by corporate attorney.) THIS IS A REQUIRED FORM Any claims under this bond may be addressed to: (Name and Address of Surety) (Name and Address of Agent or Representative for service of process in California, if different from above) (Telephone number of Surety and Agent or Representative for service of process in California) NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto. QC Insurance ID: _____________ __________ __________ Page 312 Page 313 Page 314 Page 315 [This page has intentionally been left blank.] Page 316 STAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: April 28, 2022 PREPARED BY: Audrey Nickerson, Project Manager REQUEST: Appropriate additional funds in the amount of $340,000 for construction contingency and Approve Amendment No. 2 to Contract No. C37040B with Southstar Engineering of Riverside, California in an amount not to exceed $300,000 for additional construction management and inspection services related to Presidents’ Plaza East and West Parking Lot Improvements (Project No. 758-14). ___________________________________________________________________________ Recommendation By minute motion, that the City Council, 1) Approve additional contingency funds in the amount of $340,000 to Contract No. C37040A with H&H General Contractors Inc. of Highland, California; 2) Approve Amendment No. 2 to Contract No. C37040B with Southstar Engineering and Consulting of Riverside, California, for additional construction management and inspection services in an amount not to exceed $300,000; 3) Appropriate $640,000 from Unobligated Reserve monies to Account No. 4004692- 4400100; and 4) Authorize the City Manager or designee to execute the amendment and to review and approve written requests for the use of the contingency for unforeseen conditions up to the contingency amount. Upon approval of the above actions, funds will be available in Capital Project Account No. 4004692-4400100. Strategic Plan The improvements to the El Paseo Corridor fulfill priorities identified in the City’s Strategic Plan, including the following: Economic Development Priority No. 1: Expand job and business creation opportunities. Action Step: Revitalize Highway 111. Look at creating a possibility of creating a “City Center” atmosphere. To encourage growth and revitalization of the Highway 111 corridor, the City assists in providing large blocks of attractive and efficient public parking within the corridor. Page 317 April 28, 2022 - Staff Report Appropriation of Additional Construction and Construction Management and Inspection Budget Page 2 of 5 Background Analysis To date, the City Council has authorized the following actions for the Presidents’ Plaza East and West Improvements project, resulting in a total of $10,662,031 for the project design, construction management, utility relocations, and construction: • May 10, 2018 – Awarded Contract No. C37040 for professional engineering, landscape architecture and utility design services to Dudek of La Quinta, California, in the amount of $606,120. • July 11, 2019 – Selected Alternative 5 for the design of Presidents’ Plaza East and West Parking Lot Improvements; and approved Contract No. C37040, Amendment No. 1 to Contract No. C37040 with Dudek, in an amount of $50,000. • October 15, 2020 – Awarded Contract No. C37040B for construction management services to Southstar Engineering of Riverside, California in the amount of $853,960. • January 14, 2021 – Authorized staff to advertise and call for bids for the construction contract; and authorized the Contract Documents to include an early completion incentive. • February 25, 2021 – Ratified and confirmed the Interim City Manager’s execution and authorization to enter into necessary agreements for utility relocation; and authorized the expenditure of up to $400,000 for utility relocations. • March 11, 2021 – Awarded Contract No. C37040A to H & H General Contractors, Inc. of Highland, California for Presidents’ Plaza East and West Improvements (Project No. 758-14) in the total amount of $7,123,393.00; and approved Amendment No. 2 to Contract C37040 with Dudek of La Quinta, California, for additional design and construction engineering support services in an amount not to exceed $55,975. • May 13, 2021 – Authorized City Manager to enter into necessary agreements for utility relocation; authorized the expenditure of up to $250,000 for utility relocations; and approved Amendment No. 3 to Contract C37040 with Dudek of La Quinta, California, for additional design services in an amount not to exceed $37,950. • August 26, 2021 - Authorize the additional expenditure of up to $572,240 for CVWD utility relocations. • December 16, 2021 – Appropriate additional budget of $500,000 from Unobligated General Funds; Allocate $465,000 for additional contingency budget to Contract C37040A; Approve Amendment No. 4 to Contract C37040 with Dudek of La Quinta, California, for additional design services not to exceed $35,000. • January 13, 2022 – Approved Amendment No. 1 to Contract C37040B with Southstar Engineering of Riverside, California in the amount of $350,000, for additional construction management and inspection services. Discussion City Council has appropriated to date a total of $1,177,339 in construction contingency Page 318 April 28, 2022 - Staff Report Appropriation of Additional Construction and Construction Management and Inspection Budget Page 3 of 5 for the project. To date, the City has approved seven contract change orders totaling $1,170,480.11. The approved contract change orders cover additional work for Spectrum utility relocations; abandonment of previously unknown 14 septic tanks and cesspools and connections of affected businesses to the public sewer system; design plan modifications to accommodate utility relocations; temporary parking lot lighting; additional work to expedite paving operation in the East Lot; installation of additional ADA ramps; and other additional work due to utility relocation installation and delays. The majority of the utility conflicts are associated with unrecorded, shallow infrastructure discovered during grading activities. The contractor and construction manager have identified additional work needed due to additional unknown conditions, and the project has incurred additional costs due to utility conflicts including additional modifications to water laterals due to changes in CVWD meter locations; continued use of temporary light towers due to delays in SCE completing their work; modifications to handrail designs to accommodate special conditions; additional sewer infrastructure work; and additional work to expedite paving the first layer of asphalt in the West Lot in February. The remaining $6,858.89 contingency is not sufficient to cover these additional work items. As such, staff requests to increase the construction contingency by $340,000. While the requested construction contingency is anticipated to cover costs through completion of construction barring any major unforeseen challenges, there may be a need for additional funds to cover final project costs and a final accounting at the end of the project, which staff will conduct prior to issuance of the Notice of Completion. To date, the East and West lots have been paved with the first layer of asphalt. The project team does not anticipate any further unexpected underground utility issues to arise. The remainder of construction will be focused on above-ground improvements, including installation of light poles, pavers, colored concrete, ADA handrails, painting the trash enclosure gates, landscaping and other construction activities in preparation for final paving the week of April 25. Due to the number of unforeseen issues and delays encountered during construction, the overall construction schedule has extended. The project is currently projected to finish 70 working days past the original project schedule. Paving and striping will be completed in early May, followed by completion of landscaping mid-May. The last items of work after mid-May will be the installation of the carports. Supply chain issues for steel and subcontractor availability for the fabrication of the carports has delayed their installation; the carports are now expected to be completed in August. Through March 31, 2022, construction management and inspection has cost approximately $1,175,926.86, leaving less than $30,000 remaining on the construction management contract. The City requires the continued services of Southstar Engineering, Inc. through the project completion for full-time inspections services for the remaining Page 319 April 28, 2022 - Staff Report Appropriation of Additional Construction and Construction Management and Inspection Budget Page 4 of 5 work through August, review and approval of requests for information and submittals, design review and day-to-day construction management on-site, carport inspections, punchlist completion, and closing out the contract. Staff is planning for a reduction in the need for day-to-day inspections and daily construction management between mid-May and when the carport installation commences over the summer; therefore, staff is requesting a contract amendment in the amount of $300,000. Staff’s request to increase the construction contingency by $340,000 will bring the construction budget to $9,462,972. Staff’s request to increase the construction management and inspection contract by $300,000 will bring the total construction management and inspection contract to $1,503,959.40, which equates to 15% of the current construction cost. Industry standards typically range construction management costs at 10% to 15%. For reference, construction management and inspection for San Pablo Phase 1 was 13%; San Pablo Phase 2 was 15%; and CV Link was 10%. Fiscal Analysis In 2018, the total Project cost was estimated to be $8.6M. Since then, the Project has experienced design re-evaluations, re-designs and unexpected utility fees and conflicts which have resulted in additional costs for a total Project cost of $11,511,977. To date, all appropriated funding for the project from the Restricted Capital Project Fund 451 have been exhausted and no additional funds are available to cover the additional construction contingency or requested contract amendment. Staff requests a total appropriation of $640,000 from the Unobligated General Fund to Capital Project Fund 400 (including the associated transfers in/out) for the additional construction contingency and additional construction management and inspections services. With approval of this action, a total of $1,090,000 will be expended from General Fund monies for the project. The table on the next page provides the original budget, and the various City Council actions and authorizations to date, including the additional appropriation of $640,000 as part of the requested action. Page 320 April 28, 2022 - Staff Report Appropriation of Additional Construction and Construction Management and Inspection Budget Page 5 of 5 LEGAL REVIEW Approved as to Form DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER N/A Robert W. Hargreaves City Attorney Andy Firestine Andy Firestine Assistant City Manager Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager: L. Todd Hileman: L. Todd Hileman ATTACHMENT: 1. C37040B Amendment No. 2 2. Vicinity Map Authorized Budgets Authorized Total Restricted Capital Fund 451 Capital Imps Fund 400 Original Budget FY18/19 7/1/2018 8,000,000 8,000,000 Additional Appropriation FY20/21 7/1/2020 740,000 740,000 Appropriation Authorized by Council 3/11/2021 1,200,000 1,200,000 Additional Utility Relocation Expenses and Appropriation 5/13/2021 150,000 150,000 Authorization of Additional Utility Relocation Expenses 8/26/2021 571,977 571,977 Authorize appropriation of funds for Anticipated Additional Utility Expenses 12/16/2021 465,000 400,000 65,000 Amendment No. 4 to Agreement C37040 12/16/2021 35,000 35,000 Requested Amendment No. 1 to Agreement C37040B 1/13/2022 350,000 350,000 Total Authorized Budget to Date 11,511,977 11,061,977 450,000 Authorize appropriation of construction contingency funds 4/28/2022 340,000 340,000 Requested Amendment No. 2 to Agreement C37040B and Appropriation 4/28/2022 300,000 300,000 Current Request 640,000 - 640,000 Adjusted Budget 12,151,977 11,061,977 1,090,000 Authorized Expenditures Authorized Total Restricted Capital Fund 451 Capital Fund 400 Professional Consulting Service Agreement C37040 plus Amend 1-4 5/10/2018 785,045 750,045 35,000 Construction Management Services Agreement C37040B plus Amend 1 10/15/2020 1,203,960 853,960 350,000 Authorize Utility Relocation Expenses 2/25/2021 400,000 400,000 Construction Contract C37040A plus Contingency 3/11/2021 7,835,732 7,835,732 Authorize appropriation of funds for Anticipated Additional Utility Expenses 12/16/2021 465,000 400,000 65,000 Additional Utility Relocation Expenses and Appropriation 5/13/2021 250,000 250,000 Authorization of Additional Utility Relocation Expenses 8/26/2021 572,240 572,240 Total Authorized Expenditures to Date 11,511,977 11,061,977 450,000 Requested Amend No. 2 to Agmt C37040B (if approved)4/28/2022 300,000 300,000 Congtingency Available (if approved)340,000 - 340,000 Page 321 AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF PALM DESERT AND SOUTHSTAR ENGINERING & CONSULTING, INC. Contract No. C37040B 1. Parties and Date. This Amendment No. 2 to the PROFESSIONAL SERVICES AGREEMENT is made and entered into as of this 28th day of April, 2022, by and between the City of Palm Desert (“City”) and SOUTHSTAR ENGINERING & CONSULTING, INC., a CORPORATION with its principal place of business at 1945 CHICAGO AVENUE, UNIT C-2, RIVERSIDE, CALIFORNIA 92507 (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.” 2. Recitals. 2.1 Agreement. The City and Consultant have entered into an agreement entitled “Professional Services” dated October 15, 2020 (“Agreement” or “Contract”) for the purpose of retaining the services of Consultant to provide professional construction management, surveying and materials inspection for the Presidents Plaza East and West Parking Lot Improvements project. 2.2 Amendment. The City and Consultant desire to amend the Agreement to extend the term and for additional compensation. The Parties have heretofore entered into that Amendment No. 1 dated January 13, 2022. 2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section 3.6.14 of the Agreement. 3. Terms. 3.1 Section 3.1.2 Term. Section 3.1.2 of the Agreement is hereby amended in its entirety to read as follows: 3.1.2 Term. The term of this Agreement shall be from October 15, 2020 to December 31, 2022, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Section 3.3.1 Compensation. Section 3.3.1 of the Agreement is hereby amended in its entirety to read as follows: 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "D" attached hereto and incorporated herein by reference. The total compensation shall not exceed One Million Five Hundred Three Thousand Nine Hundred Sixty dollars ($1,503,960.00) without written approval of the City Council or City Manager, as applicable. 3.3 Continuing Effect of Agreement. Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2. 3.4 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they Page 322 Contract No. C37040B Page 2 of 5 have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2. 3.5 Severability. If any portion of this Amendment No. 2 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.6 Counterparts. This Amendment No. 2 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Page 323 Contract No. C37040B Page 3 of 5 SIGNATURE PAGE FOR AMENDMENT NO. 2 TO THE ON-CALL SURVEYING AND CIVIL ENGINEERING PLAN REVIEW SERVICES AGREEMENT BETWEEN THE CITY OF PALM DESERT AND SOUTHSTAR ENGINEERING & CONSULTING, INC. IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 2 to the PROFESSIONAL SERVICES AGREEMENT as of the day and year first above written. CITY OF PALM DESERT Approved By: L. TODD HILEMAN City Manager Attested By: Anthony J. Mejia, City Clerk Approved As To Form: By: Best Best & Krieger LLP City Attorney SOUTHSTAR ENGINEERING & CONSULTING, INC. Signature Name Title Signature Name Title QC Insurance ID: _____________ __________ __________ Page 324 Contract No. C37040B Page 4 of 5 Notary Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF ______________ On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual  Corporate Officer Title(s) Title or Type of Document  Partner(s)  Limited  General Number of Pages  Attorney-In-Fact  Trustee(s)  Guardian/Conservator Date of Document  Other: Signer is representing: Name Of Person(s) Or Entity(ies) Signer(s) Other Than Named Above Page 325 Contract No. C37040B Page 5 of 5 Notary Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF ______________ On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual  Corporate Officer Title(s) Title or Type of Document  Partner(s)  Limited  General Number of Pages  Attorney-In-Fact  Trustee(s)  Guardian/Conservator Date of Document  Other: Signer is representing: Name Of Person(s) Or Entity(ies) Signer(s) Other Than Named Above Page 326 Exhibit "C" Hours charged to end of october 2021 Hours Remaining Amendment 1 Additional Hours Amendment 1 Additional Budget Amendment 2 Additional Hours Amendment 2 Additional Budget Resource/Key Staff Member ** Principal-In-Charge / Project Manager (Jason Bennecke, PE, MBA, PMP)6.00 204.60 210.60 277.00 -66.40 178.00 46,102.00$ 0 54,545.40$ 100,647.40$ Resident Engineer / Construction Manager / Traffic Management (Amr Abuelhassan, PE,MS, QSD)12.00 573.60 585.60 379.00 206.60 178.00 46,102.00$ 300 77,700.00$ 151,670.40$ 275,472.40$ Assistant Resident Engineer / Utilities Coordinator / Office Engineer / As Needed Inspection - (Ezzat Kabbara) 6.00 910.00 916.00 645.00 271.00 160.00 35,200.00$ 300 66,000.00$ 154,804.00$ 256,004.00$ Lead Field Inspector - (Mike Smith)12.00 1344.00 1356.00 1106.00 250.00 580.00 102,080.00$ 800 140,800.00$ 210,180.00$ 453,060.00$ Public Outreach - (Vanessa Barrientos) 4.00 344.00 348.00 922.00 -574.00 934.00 120,486.00$ 160 20,640.00$ 44,892.00$ 186,018.00$ Electrical Inspection (DESI) - John Kannor 12.00 430.00 442.00 72,930.00$ 72,930.00$ As-Needed Construction Surveying (DEA 2-man Crew )12.00 319.20 331.20 99,028.80$ 99,028.80$ Materials Testing (Leighton)12.00 319.20 331.20 65,908.80$ 65,908.80$ Totals 76.00 4,444.60 4,520.60 3,329.00 87.20 2,030.00 349,970.00$ 1560 305,140.00$ 853,959.40$ 1,509,069.40$ CITY OF PALM DESERT PROPOSED STAFFING PLAN/COST PROPOSAL - PHASE 1 - CONSTRUCTABILITY/VALUE ENGINEERING AND PHASE II - CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES - PRESIDENT'S PLAZA EAST AND WEST IMPROVEMENTS Total Initial CostTotal Phase I (hrs)Totals (hrs.)Total Phase II (hrs)Total Cost Page 327 EL PA SEO ALESSANDRO DR LA RREA ST PALM DESERT DR N ALESSANDRO DR SANLUISREYAVEPRICKLY PEAR LNLARREA STL A R K SP U R L N ALESSANDRO DR PORTOLAAVELARKSPURLNALESSANDRO DR PALM DESERT DR S PALM DESERT DR N PORTOLAAVEALESSANDRO DR PALM DESERT DR N PALM DESERT DR S ALESSANDRO DR EL PA SEO ALESSANDRO DR EL PASEO SANLUISREYAVEPORTOLAAVESANLUISREYAVESAN LUIS REY AVEHWY 111 HWY 111 President's Plaza East & West EL PA SEO ALESSANDRO DR LA RREA ST PALM DESERT DR N ALESSANDRO DR SANLUISREYAVEPRICKLY PEAR LNLARREA STL A R K SP U R L N ALESSANDRO DR PORTOLAAVELARKSPURLNALESSANDRO DR PALM DESERT DR S PALM DESERT DR N PORTOLAAVEALESSANDRO DR PALM DESERT DR N PALM DESERT DR S ALESSANDRO DR EL PA SEO ALESSANDRO DR EL PASEO SANLUISREYAVEPORTOLAAVESANLUISREYAVESAN LUIS REY AVEHWY 111 HWY 111 I EAST VICINITY MAP WEST Page 328 STAFF REPORT CITY OF PALM DESERT CITY MANAGER’S OFFICE MEETING DATE: April 28, 2022 PREPARED BY: Andrew Firestine, Assistant City Manager REQUEST: Provide Feedback and Direction on Amendments to Title 11, Parks, of the Palm Desert Municipal Code ______________________________________________________________________ Recommendation Staff recommends that the Council direct the City Manager to develop a fee waiver process as part of a code amendment to Title 11 of the Palm Desert Municipal Code. Background Analysis City Council is being asked to provide feedback and direction on two topics: 1. Use of the Civic Center Park amphitheater; and 2. Fee waivers for park use permits. Staff recommends no changes to the current standards to be granted a park use permit and advises against restrictions of the amphitheater based on a classification or type of speech. Staff recommends that the Palm Desert Municipal Code be amended to include a fee waiver process for park use permits, delegating such authority to the City Manager and with the provision that they are limited to: 1) non-profit organizations benefitting the Palm Desert community; 2) no more than one event per year per non-profit; and 3) waive only the City’s portion of the fee covering the facility rental and excluding any deposits or hourly rates for staff support to an event. Title 11 of the Palm Desert Municipal Code contains the rules and regulations concerning the use of the City’s parks, including the establishment of a permitting process for group gatherings, park reservations and park use permits, and the reservation of the Civic Center Park amphitheater. It also contains provisions that allow the City Manager to develop additional park rules and regulations. Over the last two months, staff has received questions over the City’s policy and eligible use of the amphitheater. Two events in particular have led staff to review the existing regulations contained in Title 11 of the Palm Desert Municipal Code together with the existing procedures to review and issue a park use permit. This staff report addresses two issues in particular, the use of the amphitheater and fees. Concurrently, staff is initiating an amendment to Title 11 to recognize changes in the management of the City’s parks and recreation facilities since the regulations were adopted and to conduct a minor cleanup of the administration, coordination, and review of park use permits. A fee resolution may also be needed to recognize current fees and charges and to establish a process to update Page 329 April 28, 2022 - Staff Report Provide Direction on the Development of a Facilities and Park Use Policy and Amendments to Title 11, Parks, of the Palm Desert Municipal Code Page 2 of 5 those in the future. Direction received from City Council through this staff report on the use of the amphitheater and any fee waivers will influence this code amendment. Staff is also preparing an administrative policy to provide further instruction to staff on the relationship between the City of Palm Desert, the Desert Recreation District, and the Family YMCA of the Desert with respect to the administration of the permitting process for group gatherings, park reservations and park use permits, and the reservation of the Civic Center Park amphitheater. This will also address the use of the Council Chambers. Staff will present a draft of this administrative policy together with the code amendment. Use of the Amphitheater With respect to the use of the amphitheater, a park use permit is required to reserve the amphitheater and fees are required to cover the cost of any event. Presently, Section 11.04.050 of the Palm Desert Municipal Code contains five standards for the issuance a park use permit. Those are: 1. The holding or conducting of such outdoor gathering will not substantially interrupt or prevent the safe and orderly use of the public park by persons other than those attending the group gathering. 2. The concentration of and conduct of persons attending such group gathering will not unduly interfere with the proper police and fire protection of, or ambulance service to, the public park or areas contiguous to the public park. 3. The holding or conducting of such group gathering not reasonably likely to cause injury to person or property or to provoke disorderly conduct or create a disturbance. 4. The holding or conducting of such group gathering will not require the diversion of so great a number of police officers to maintain proper order, so as to prevent normal police protection to the city. 5. Such group gathering is not to be held for the sole purpose of advertising the goods, wares, services or merchandise of an individual or specific groups of business establishments or wholesale or retail vendors. The Director of Public Works, under the Palm Desert Municipal Code, is required to act on an application for a park use permit within 10 days and if the Director disapproves the application, a letter is sent to the applicant within 15 days of the date of the application stating the reasons for the permit denial. There are no additional criteria for the denial of a permit, only those findings for the issuance of a park use permit. The Coachella Valley Freedom Fest conducted an event in March 2022 in the Civic Center Park, which drew some questions from City Council on whether the event was permitted and concern that the press coverage attached the City’s name and brand with the event. The event was permitted – they submitted all of the required application material to DRD and DRD approved their Page 330 April 28, 2022 - Staff Report Provide Direction on the Development of a Facilities and Park Use Policy and Amendments to Title 11, Parks, of the Palm Desert Municipal Code Page 3 of 5 permit for the use of the amphitheater based on the requirements of Chapter 11.04 of the Palm Desert Municipal Code. The event organizers have submitted a permit application for another event, which will be similarly issued provided that all fees are paid and that they submit the required certificates of insurance. The regulation of group gatherings in the City’s parks, particularly the potential restriction or denial of certain uses, intersects with constitutional protections of free speech guaranteed under the First Amendment. Generally speaking, within a traditional public forum such as the City’s parks, the City may exercise content-neutral, time, place, and manner restrictions, provided that the restrictions are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Those can include requiring permits for events over a certain size, the use of amplified sound, hour limitations, or a street closure in support of an event. There are limits on these restrictions, such as excessively long advance notice requirements or using a permit requirement as a means to prevent a protest or assembly in response to breaking events. Should the City enact content-based restrictions, such restrictions must survive strict scrutiny— thus they must be narrowly tailored to further a compelling governmental interest. The Supreme Court has said that for such content-based restrictions, if there exists a less restrictive alternative that would serve the government's compelling interest, the government must use that alternative instead. This is an extremely difficult standard to meet. Some examples, however, include prohibiting the use of fighting words, defamation, obscenity, or speech that creates a clear and present danger (must impose a specific and real, imminent threat). The City Attorney has advised that it is very difficult to draft an ordinance that prohibits these types of speech that is not overly broad or vague. In contrast to traditional public forums, public facilities and buildings such as the Palm Desert Civic Center are considered non-public forums and public assembly and speech can be reasonably regulated. Exceptions to this include City Council and Commission meetings when the government intentionally opens an otherwise non-public forum for expressive activity. In a “limited public forum,” such as the Palm Desert Civic Center, the City may discriminate against classes of speakers or types of speech. However, the City is still prohibited from engaging in viewpoint discrimination. For example, the City could prohibit speech on topics not within the City’s jurisdiction during public comment at a City Council meeting. More broadly, the amphitheater has been used by multiple groups over the last several years, including multiple religious organizations and non-profits. Further defining uses allowed within the amphitheater would likely require its view as a limited public forum. Even then, however, the City would be challenged to not deny a permit based on its specific content but on a broader classification. For instance, in a limited public forum, the City could deny partisan political speech, but in doing so it would deny the right to all users that would fit within this category. The same assessment can be made for other classifications of use of the amphitheater. Waiver of City Fees In 2015, the City Council adopted a Sports Facilities Use Policy that created a prioritization of use for the City’s parks facilities and established a permanent fee waiver for non-profit Palm Desert Page 331 April 28, 2022 - Staff Report Provide Direction on the Development of a Facilities and Park Use Policy and Amendments to Title 11, Parks, of the Palm Desert Municipal Code Page 4 of 5 based youth sports organizations, more specifically defined as those recreational youth sports organizations recognized by DRD and only for regular season practice and league play. In March 2022, the City Council granted the Palm Desert High School a temporary waiver of its fees for the use of the Civic Center Park volleyball courts. In its research of other fee waivers, staff has identified that staff informally has granted fee waivers more than 15 years ago for recurring events for: 1) the International Holocaust Memorial Day event; 2) use of volleyball courts and baseball fields for use by the College of the Desert; and 3) use of a pavilion by the Historical Society for an annual picnic. More recently, the organizer of an event titled “Today We Are All Ukrainians” initially paid the permit fees but appealed this decision to the City Manager on the basis that he historically has not paid fees and he was not informed of the need to remit fees for this specific event in a timely manner. Staff directed the reimbursement of his application fees. There is no basis for the waiver of park use permit fees in the Palm Desert Municipal Code. If there is a desire to expand the fee waiver beyond the Sports Facilities Use Policy, staff recommends that the Palm Desert Municipal Code grant the authority to the City Manager and that the City Council provide some parameters for City Manager to administer these provisions, which could include granting non-profit organizations relief from some of the charges they would otherwise incur as part of a facility rental. For the amphitheater, DRD charges a flat rental fee, an hourly rate for staff support to an event, a facility deposit, and an administrative fee that is collected and retained by DRD. The fees are intended to cover those costs incurred by the City in support of an event. A fee waiver would most appropriately be directed to the flat rental fee, in the case of the amphitheater. For pavilion rentals, it could reflect the daily rate. Or for fields, it could cover the hourly field rate. Staff does not recommend waiving deposits or the administrative fee. Recommendation Staff recommends no changes to the current standards to be granted a park use permit and advises against restrictions of the amphitheater based on a classification or type of speech. Staff recommends that the Palm Desert Municipal Code be amended to include a fee waiver process for park use permits, delegating such authority to the City Manager and with the provision that they are limited to: 1) non-profit organizations benefitting the Palm Desert community; 2) no more than one event per year per non-profit; and 3) waive only the City’s portion of the fee covering the facility rental and excluding any deposits or hourly rates for staff support to an event. Fiscal Analysis There is no anticipated fiscal impact unless the Council directs an expansion of the waiver of park use permit fees. In this case, the impact to the General Fund would depend on the extent of the fee waiver. Should City Council provide this direction, staff will further assess the fiscal impact with the presentation of any draft code amendment or administrative policy. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER Page 332 April 28, 2022 - Staff Report Provide Direction on the Development of a Facilities and Park Use Policy and Amendments to Title 11, Parks, of the Palm Desert Municipal Code Page 5 of 5 RWH Robert W. Hargreaves City Attorney Andy Firestine Andy Firestine Director of Public Works Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager: L. Todd Hileman: L. Todd Hileman Page 333 [This page has intentionally been left blank.] Page 334 STAFF REPORT CITY OF PALM DESERT CITY MANAGER’S OFFICE MEETING DATE: April 28, 2022 PREPARED BY: Heather Horning, Assistant to the City Manager REQUEST: Request for feedback and direction regarding proposed changes to the Expense Reimbursement Policy for Local Meeting/Events Attendance by Elected/Appointed Officials and City Employees Policy. Recommendation That the City Council provide City staff feedback and direction regarding proposed changes to the Expense Reimbursement Policy for Local Meeting/Events Attendance by Elected/Appointed Officials and City Employees Policy. Background Assembly Bill (AB) 1234 contains certain requirements and restrictions on local agency practices relating to reimbursing local elected and appointed officials' expenses. AB 1234 was subsequently codified as California Government Code Section 53232. In 2009, the City Council adopted Resolution No. 2009-78 approving the Expense Reimbursement Policy for Local Meeting/Events Attendance by Elected/Appointed Officials and City Employees Policy (Policy) to authorize reimbursable expenses, in accordance with Section 53232 et seq. A copy of the Policy is attached for reference. Staff has been reviewing the processes and procedures for event ticket and table purchases and identified a few areas that this Policy does not adequately address. There are also a few areas or that would benefit from further clarification or revision. A summary of the issues identified by staff along with proposed policy revisions include the following: 1. Lack of Definition of Local Meeting and Events - The policy does not contain definitions of a Local Meeting or a Local Event. The City Council adopted Resolution 2016-80 approving a Travel and Expense Reimbursement Policy (Travel Policy) that applies to non-local travel and meetings and defines Local Travel/Local Meetings as “Travel within a 75 mile radius of City hall which does not require an overnight stay, such travel and meeting costs are covered under the Local Meetings Policy.” A copy of the Travel Policy is attached for reference. Staff recommends adding definitions for Local Meetings and Local Events that is consistent with the 75 mile radius defined in the Travel Policy. Page 335 April 28, 2022 – Staff Report Expense Reimbursement Policy for Local Meeting/Events Attendance by Elected/Appointed Officials and City Employees Policy Page 2 of 5 2. Local Meeting and Events are Grouped Together – In Section 3 of the Policy, which addresses the specific occurrences qualifying for reimbursement of expenses, the Policy groups local meetings and events together. This has been problematic since these are budgeted and tracked separately. Staff recommends separating local meetings and events to align with the budget and tracking. Local Meetings would be budgeted and paid using the Local Meetings Account in the City Council’s budget; and Local Events would be budgeted and paid using a separate account solely for these in the Contributions budget. Staff recommends replacing the description of what qualifies as Local Meetings and Local Events in the Policy with the following: • Local Meetings include attendance at meetings with government and business leaders (e.g. Coachella Valley Association of Governments, the Palm Desert Chamber of Commerce, and the Desert Valley Builders Association); and attendance at meetings/conferences/seminars associated with professional organizations (e.g. International City/County Management Association, California Society of Municipal Finance Officers, and the City Clerk's Association of California). • Local Events include attendance at Local Events hosted by non-profit 501(c)(3) organizations (e.g. Boys and Girls Club of the Coachella Valley, Palm Desert Sister Cities Foundation, and the United Way of the Desert). 3. Process for event attendance cancellations is not addressed in Policy– In situations where an official or employee is no longer able to attend an event, there is not a clear process. Staff recommends adding the following language: • If an Official who had previously provided an affirmative RSVP to an event and later cannot attend the event, the Official must notify both the Mayor and City Manager in writing as soon as is reasonably practical. At the discretion of the City Manager or Mayor, an appropriate staff member replacement may be designated to attend the event in place of the Official on a case-by-case basis. • If an Employee who had previously provided an affirmative RSVP to an event and later cannot attend the event, the Employee must notify the City Manager or his/her designee in writing as soon as reasonably practical. At the discretion of the City Manager or his/her designee, an appropriate staff member replacement may be designated to attend the event in place of the City Employee on a case-by-case basis 4. Requests for the purchase of table sponsorships are not addressed in the Policy– The City frequently receives requests from organizations to purchase a table at a local event and there is not currently a policy addressing how to process Page 336 April 28, 2022 – Staff Report Expense Reimbursement Policy for Local Meeting/Events Attendance by Elected/Appointed Officials and City Employees Policy Page 3 of 5 these. Staff recommends adding the following section in the Policy to address table sponsorships: Table Sponsorships • Tickets available from the purchase of a City Table Sponsorship will be distributed in accordance with the City of Palm Desert’s Distribution Policy of Tickets and/or Passes adopted by Resolutions 2019-70, or most recent version. • On an annual basis, the City Council will approve a budget for the purchase of Table Sponsorships for Local Events. The budget will include a listing of the Table Sponsorships to be approved for the fiscal year, and an amount for miscellaneous Table Sponsorships to be used for new sponsorship requests that occur during that year. • If a Council Member would like to request approval of a Table Sponsorship outside of the budget approval process, the request should be sent to the City Manager, or his/her designee. The request will be reviewed by the Mayor and Mayo Pro Tem and approved by the City Manager. • When the City Manager or his/her designee receives an invitation to a Local Event that has an approved Table Sponsorship in the adopted budget, the information will be distributed to all Council Members, with instructions on how to RSVP. • When the City Manager or his/her designee receives an invitation to a Local Event that does not have an approved Table Sponsorship in the adopted budget, the information will be distributed to all Council Members, with instructions on how to request the purchase of ticket using the Individual Council Member Budgetary Allocation, or how to request a Table Sponsorship. • Attendance by City Officials at Table Sponsored Local Events shall be documented by City staff designated by the City Manager and regularly reported to the City Council. 5. Request for the purchase of local event tickets is not addressed in the Policy– Staff regularly receives requests to purchase tickets for Council Members to attend various events on official City business and there is not currently a policy addressing how to process these. As mentioned above, staff recommends using an account in the Contributions budget to be used solely for budgeting and paying for Council Member’s tickets to local events. Staff is also proposing that the City Council set individual Council Member allocations each year during the budget process to be used for each Council Member’s discretionary purchase of tickets for these events. Below is the draft proposed section that could be incorporated into the Policy to address this: Page 337 April 28, 2022 – Staff Report Expense Reimbursement Policy for Local Meeting/Events Attendance by Elected/Appointed Officials and City Employees Policy Page 4 of 5 Individual Council Member Budgetary Allocation • On an annual basis, each individual member of City Council shall be allocated an Individual Council Member Budgetary Allocation to be exclusively used at a Council Member’s discretion for attendance at Local Events that meet the requirements of this policy. • The amount of the Individual Budgetary Allocation shall be approved by the City Council each year during the budget approval process. Additional funds may be allocated by the City Council on a case-by-case basis. • Unused Individual Council Member Budgetary Allocation at the end of each calendar year will return to the General Fund. • The City Manager or his/her designee may determine to purchase a table at an Event instead of individual seats when four (4) or more Council Members have confirmed their attendance at the Event and/or it is more financially prudent to purchase a City table in lieu of individual seats. • If a Council Member does not want an Event to come out of his or her Individual Council Member Budgetary Allocation, a request must either be made to the City Council, or the Council member may request a Table Sponsorship of the Event per the Section above. • A Council Member may not use his or her Individual Council Member Budgetary Allocation to pay for a spouse or guest to attend an Event with the Council Member. • Use of the Individual Council Member Budgetary Allocation to purchase a Local Event ticket shall be coordinated in advance with City Staff as designated by the City Manager. • Individual Council Member Budgetary Allocations may only be expended on the purchase of Local Event tickets and may not be utilized for other purposes or other event-related expenses, such as travel, lodging and meals not included with an event ticket. • No Council Member may transfer funds within his or her Individual Council Member Budgetary Allocation to another Council Member. Page 338 April 28, 2022 – Staff Report Expense Reimbursement Policy for Local Meeting/Events Attendance by Elected/Appointed Officials and City Employees Policy Page 5 of 5 • Events attended and balances of the Individual Council Member Budgetary Allocations shall be documented by City Staff as designated by the City Manager and reported to the City Council. Please note that tickets received via City sponsorships or donated to the City are not addressed in this Policy. These tickets are distributed to Council Members and City employees according to guidelines set out in the City’s Distribution Policy of Tickets and Passes adopted by Resolution No. 2019-70. A copy of this policy is attached for reference. Staff is requesting feedback and direction on the proposed revisions to this Policy. If the City Council directs staff to make revisions, staff will incorporate them into the Policy and bring the proposed draft to the City Council for approval. Fiscal Analysis There is no fiscal impact associated with this action. Any proposed changes to the budget, including new accounts and the amount of any allocations will be brought to the City Council for approval during the budget process for fiscal year 2022/23. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER Robert W. Hargreaves Robert W. Hargreaves City Attorney N/A L. Todd Hileman City Manager Veronica Chavez Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager: L. Todd Hileman: L. Todd Hileman ATTACHMENTS: 1. Approved Expense Reimbursement for Local Meetings/Events Attendance for Elected/Appointed Officials and City Employees 2. Distribution Policy of Tickets and Passes 3. Travel Policy Page 339 Resolution No. 09-78 Exhibit A City of Palm Desert November 12, 2009 Expense Reimbursement for Local Meetings and Events Page 1 of 6 City of Palm Desert Expense Reimbursement for Local Meetings/Events Attendance by Elected/Appointed Officials and City Employees PURPOSE AB 1234 contains certain requirements and restrictions on local agency practices relating to reimbursing local elected and appointed officials’ expenses. AB1234 was subsequently codified as California Government Code Section 53232. The purpose of this policy is to: a. Comply with AB1234 and interpret the State law for the City of Palm Desert; and b. Define and clarify authorized reimbursable expenses in accordance with Section 53232 et seq. for attendance by Officials and Employees at local meetings and events. It includes, but is not limited to tickets as gifts for meetings/events, business meals, employee functions, and other related expenditures incurred while conducting City business; and c. To establish procedures for authorization and reimbursement of such expenses. POLICY This policy is applicable to the City Council, all Commissions, Committees, Boards and Agencies, (hereafter “Agencies”) of the City that are subject to the Brown Act and City employees. In accordance with Government Code Section 53232.2(f), all expenses that do not fall within the adopted local meetings and events policy must be approved by the City Council in a public meeting, and for Employees, by the City Manager, before the expense is incurred. 1. Definitions For the purpose of this policy, the following definitions will be used: • Elected Officials – those individuals elected to the City Council • Appointed Officials – members of all Palm Desert Commissions, Boards and Agencies appointed and subject to the Brown Act and City Manager, Assistant City Managers and Department Heads designated by the City Council to represent the City • Agency – the City Council, and all Palm Desert Commissions, Boards and Agencies Page 340 Resolution No. 09-78 Exhibit A City of Palm Desert November 12, 2009 Expense Reimbursement for Local Meetings and Events Page 2 of 6 • Employee – an individual employed directly and solely by the City, excluding independent contractors, subcontractors, and other persons performing work on behalf of the City but self-employed or employed by other persons, corporations or entities • Reimbursable expense – City business expenses incurred and paid for by Officials and Employees 2. Pre-Payment by City Whenever possible, Officials and Employees should arrange for the City to be directly billed or prepay for expenses incurred for official City business associated with local meetings or events. Expenses paid directly by the City are not “reimbursable expenses” within the meaning of this Policy. 3. Specific Occurrences Qualifying for Reimbursement of Expenses Incurred in Official City Business at Local Meetings Government Code Section 53232.2(b) requires the City specify the types of occurrences that qualify an Official or Employee to receive reimbursement of expenses relating to travel, meals, and other actual and necessary expenses. Accordingly, the following non-exclusive list contains expense classifications for guidance in determining expenses authorized to be expended for official City business at local meetings or events. Officials and Employees are expected to exercise good judgment and show proper regard for economy when incurring expenses in connection with official City business. The principle of “reasonable and necessary” should be used when deciding to expend taxpayer money. • Attendance at meetings/events with government and business leaders (e.g. Coachella Valley Association of Governments, the Palm Desert Chamber of Commerce, and the Building Industry Association) • Attendance at meetings/events hosted by non-profit 501(c)(3) organizations (e.g. Boys and Girls Club of the Coachella Valley, Palm Desert Sister Cities Foundation, and the United Way of the Desert) • Attendance at meetings/events associated with professional organizations (e.g. International City/County Management Association, California Society of Municipal Finance Officers, and the City Clerk’s Association of California). Examples of expenses that the City shall not reimburse include, but are not limited to: • The personal portion of any local travel • Family expenses, (e.g. children or pet-related expenses) • Political or religious contributions Page 341 Resolution No. 09-78 Exhibit A City of Palm Desert November 12, 2009 Expense Reimbursement for Local Meetings and Events Page 3 of 6 •Non-mileage personal automobile expenses including repairs, insurance, and traffic citations •Personal losses incurred while on City business •Meals purchased by Officials or employees when, at the same time, a breakfast, lunch, or dinner is provided as part of the meeting or event participation cost. 4.City Payment for Expenses- Companions The City will not provide any reimbursements for any companion accompanying an Official or Employee to a local meeting or event, unless it is hosted by the City. Any other related expenses for companions shall be paid by the Official or Employee. 5.Transportation, Meals and Other Reimbursement Private Automobile Officials and Employees will be reimbursed for actual mileage for the use of their private cars in travel to and from local meetings or events. The reimbursement rate will be at the current Internal Revenue Service rate. Officials and Employees who do not receive a monthly auto allowance shall be reimbursed for total round-trip miles. The number of miles used for reimbursement calculations will be either from the Official or Employees home or from City Hall, whichever is the least number of miles. Officials and Employees are required to verify mileage claimed via www.maps.google.com or www.mapquest.com and submit printed mileage verification to the Expense Report. Officials and Employees shall also review the City of Palm Desert’s Fleet Policy for any further requirements, as related to this section. Use of City-Owned Vehicle There shall be no allowance or reimbursement for transportation when a City-owned vehicle is used. However, any out-of-pocket expenses, including gas or maintenance costs incurred in operation the vehicle during City business shall be reimbursed based upon representation of receipts. Officials and Employees shall review the City of Palm Desert’s Fleet Policy for any further requirements, as related to this section. Garage and Parking Expenses Expenses for necessary parking and storage of private or City vehicles may be authorized. Receipts should be provided to obtain reimbursement. Taxi and Transit Fare Local expenses for such transportation may be authorized where reasonable and necessary to conduct City business. Receipts must be provided to obtain reimbursement. Any reimbursement provided for taxi or other transit service is limited to $50.00 per day. Page 342 Resolution No. 09-78 Exhibit A City of Palm Desert November 12, 2009 Expense Reimbursement for Local Meetings and Events Page 4 of 6 General Business Meals Officials and Employees who, during the normal course of performing their duties, must provide meals for representatives of other governmental agencies or other persons doing business with the City, in order to most effectively execute their responsibilities, must use prudent judgment and are subject to challenge for excessive amounts. In such cases, the meal must be documented with a description of the purpose of the meal(s), including an explanation of its necessity to the City; and a list of all persons, including other Officials and Employees who were in attendance, specifying their organization and/or title. Expenses for persons not related to the conduct of City business shall be deducted from the Expense Report form. Tips and Gratuities Reasonable expenses for tips are allowable for general business meals and transportation purposes (i.e. taxi), with a receipt, not to exceed 20% of the allowable charge. Registration Fees Local meeting or event registration fees qualify for reimbursement. The City will pre-pay registrations prior to the date of the event. In cases where early registration is not possible, a receipt or registration form documenting the fee must be provided with the reimbursement request. In all cases, a brochure or registration document must accompany the payment voucher or petty cash voucher. No Shows and Late Cancellation This section addresses situations where an Official or Employee fails to attend a local meeting or event, after incurring expenses for that function. If an Official or Employee is unable to attend a local meeting or event, it is the Official or Employee’s responsibility to ensure that any prepaid fees are refunded to the City. For any fees not fully refunded, the Official or Employee shall attach a written explanation to the Expense Report form addressing the reason(s) the Official or Employee was unable to attend. Distribution of Multiple Tickets/Passes for Events The City of Palm Desert may receive multiple tickets/passes to attend a local event. In such occurrences, the City Manager may elect to distribute the tickets/passes to Officials or Employees, pursuant to the requirements as established in City Resolution No. 09-17. Miscellaneous It is the policy of the City that no Official or Employee shall sustain personal monetary loss as a result of duties performed in the service of the City. However, all expenditures and requests for reimbursement shall logically relate to the conduct of City business and shall be “necessary” to accomplish the purposes of such business and shall be “reasonable” in amount. Page 343 Resolution No. 09-78 Exhibit A City of Palm Desert November 12, 2009 Expense Reimbursement for Local Meetings and Events Page 5 of 6 6. Procedures for Reimbursement of Expenses Officials and Employees shall submit Expense Reports or forms designated by the Finance Department within 30 days after incurring the expense, and the reports shall be accompanied by the itemized receipts documenting each expense. Receipts are required for all expenses paid. Documentation is required to substantiate attendance and mileage. All required receipts and documentation must be submitted with the final Expense Report. Any expense not substantiated by the required receipts and documentation will not be reimbursed and will be considered a personal expense. Required documentation may include, but is not limited to: • Credit card slip and/or cash payment receipt • Transportation and other receipt • Mileage Verification • Meeting/event brochure or agenda • Statement of trip or meeting purpose • Other attendees at a meal or meeting, • Documentation of prior authorization as necessary The reason for the expenses should be clearly documented on the Expense Report or in the attached documents, if not otherwise obvious. Public Trip Meeting Report: In accordance with Government Code Section 53232.3(d), an Elected Official requesting reimbursement shall provide a brief report on any local meeting or event attended at the expense of the local Agency at the next regular meeting of the Agency. Routine business meetings may be reported in writing on the consent calendar of the agenda. The report may be made orally or in writing. 7. Advances Requests for advances should be submitted on the Request for Payment-Travel or Cash Advance. The Finance Department requires seven (7) business days to process these requests PRIOR to the date it is needed. Advance requests must be approved by the Department Head or his/her authorized representative. 8. Ethics Training Each Official shall receive at least two hours of training in general ethics principles and ethics laws relevant to his or her public service every two years. The form of such training shall meet the requirements of California Government Code Section 53234 et seq. Page 344 Resolution No. 09-78 Exhibit A City of Palm Desert November 12, 2009 Expense Reimbursement for Local Meetings and Events Page 6 of 6 9. Violation of This Policy Pursuant to California Government Code Section 53232.4 misuse of public resources or falsifying expense reports in violation of this policy, may result in any or all of the following: a. Loss of reimbursement privileges; b. A demand for restitution to the City; c. The City’s reporting the expenses as income, paid to the Official or Employee, to state and federal tax authorities; d. Civil penalties of up to $1,000.00 per day and three times the value of the resources used; and e. Prosecution for misuse of public resources, pursuant to Section 424 of the California Penal Code Page 345 Page 346 Page 347 Page 348 Page 349 Page 350 Page 351 Page 352 Page 353 Page 354 Page 355 Page 356 Page 357 Page 358 Page 359 Page 360 Page 361 Page 362 Page 363 Page 364 STAFF REPORT CITY OF PALM DESERT SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY JOINT CONSIDERATION ECONOMIC DEVELOPMENT DEPARTMENT MEETING DATE: April 28, 2022 PREPARED BY: Deborah Glickman, Management Analyst REQUEST: Provide direction to Staff on the priorities for the disposition of Successor Agency and City properties listed on the Central Inventory of surplus land and land in excess of Palm Desert’s foreseeable need. Recommendation By Minute Motion, that the City Council and SARDA Board: Provide direction to staff on the priorities for disposition of Successor Agency to the Palm Desert Redevelopment Agency (SARDA) and City of Palm Desert (City) properties listed on the Central Inventory of surplus land and land in excess of Palm Desert’s foreseeable need. Strategic Plan Objective The disposition of SARDA and City properties aligns with the City’s Envision Palm Desert Strategic Plan’s Land Use, Housing and Open Space Priority 2: Facilitate development of high-quality housing for people of all income levels. Background: At its meeting of March 24, 2022, the City Council approved a “Central Inventory” of properties owned by the City and SARDA, which were designated as surplus land, exempt surplus land, or land in excess of Palm Desert’s foreseeable need. This inventory was developed to comply with the Surplus Land Act (SLA), which requires an inventory to be approved and submitted annually to the State of California Department of Housing and Community Development (HCD) pursuant to Government Code Section 54230(a)(1) and (a)(2). The inventory includes parcels in twelve distinct areas totaling forty-one (41) separate parcels. Because the Central Inventory does not provide for the disposition of any property, Staff will return to the City Council or SARDA Board, as applicable, at future Page 365 April 28, 2022 - Staff Report SLA – Central Inventory Priorities Page 2 of 5 W:\Staff Reports - Shared 2\Staff Reports 2022-0428\5 - Clerk's Office - 2022-0428\16 SLA Property Ranking\CC - SR Prioritized Inventory List.docx meetings to address the disposition of individual properties or groups of properties, as appropriate. At this time, Staff recommends that the City Council and SARDA Board provide direction to Staff regarding the establishment of priorities for the disposition of the City and SARDA properties listed on the Central Inventory, as noted below. *All SARDA properties are required by the Dissolution Law to be sold at market rate. The SLA requires priority be given to affordable housing and, in certain instances, park or recreational use. Once Staff has received direction from the SARDA Board and City Council on prioritization, Staff will begin evaluating the appropriate disposition strategy and process for the City and SARDA properties, starting with the properties assigned a high priority. The disposition strategy and process will depend on whether a property is to be declared surplus land or exempt surplus land pursuant to the SLA and will also take into account the requirements of the Dissolution Law with respect to SARDA properties. A current appraisal will be obtained in connection with the sale of each property. It should be noted that the disposition process is already underway for several City and SARDA properties listed on the Central Inventory. These properties include those in a negotiated agreement with Pacific West Communities, LLC (affordable housing), Refuge Property Name SARDA City *Current Zoning Alessandro Alley (sold as one unit) 4 parcels 3 parcels Downtown Edge Transition Overlay 170 Acres (sold as one unit) 13 parcels Planned Residential Monterey Crossing “Triangle Site” 1 parcel Service Industrial Desert Willow Lot Pad C (sold as one unit or separately) 2 parcels 1 parcel Planned Residential Desert Willow Lot Pad A (sold as one unit or separately) 7 parcels Planned Residential Desert Willow Lot Pad D (sold as one unit or separately) 2 parcels Planned Residential Mountain View 1 parcel Planned Residential Portola 1 parcel Planned Residential Haystack 1 parcel Planned Residential Octotillo Site 1 parcel Downtown Edge Transition Overlay Wallaroo Center (sold as one unit or separately) 2 parcels Downtown Edge Transition Overlay Entrada Del Paseo (sold as one unit or separately) 2 parcels Planned Commercial Page 366 April 28, 2022 - Staff Report SLA – Central Inventory Priorities Page 3 of 5 W:\Staff Reports - Shared 2\Staff Reports 2022-0428\5 - Clerk's Office - 2022-0428\16 SLA Property Ranking\CC - SR Prioritized Inventory List.docx Palm Desert, LLC (market rate housing), Palm Communities, and Chandi Enterprises, LLC. (mixed use - affordable and market rate housing and commercial), and DSRT Surf (surf lagoon, hotel, spa, residential units, and related services). Therefore, these properties are not included on the list above. SLA Process Overview of SLA Process Declare a property “surplus land” or “exempt surplus land” Issue Notice of Availability (NOA) of surplus land to designated entities for authorized purposes Receive notices of interest (60 days) If notices of interest received, negotiate in good faith with entities (90 days) Notify HCD prior to finalizing an agreement - HCD has 30 days to review Successful Negotiations = Unsuccessful Negotiations/ Enter into deposition agreement No notices of interest = Sell property outside of SLA process When a local agency, including the City and SARDA, is disposing of property that is not necessary for the agency’s use, the governing board of the local agency must first adopt a resolution at a regular public meeting declaring the land either “surplus land” or “exempt surplus land”, as supported by written findings. For purposes of the SLA, “disposition” includes certain leases. A local agency generally may dispose of exempt surplus land without undertaking proceedings under the SLA, except that the local agency must provide its resolution declaring the property exempt surplus land to HCD for its review at least 30 days prior to disposition. HCD has oversight over the disposition of surplus land and exempt surplus land and will have 30 days to review the local agency’s determination. As part of the disposition process, staff will evaluate each property to determine whether an exemption under the SLA may be available. The exemptions set forth in the SLA are limited. One example of exempt surplus land is the local agency is transferring to another local, state, or federal agency for that agency’s use. Page 367 April 28, 2022 - Staff Report SLA – Central Inventory Priorities Page 4 of 5 W:\Staff Reports - Shared 2\Staff Reports 2022-0428\5 - Clerk's Office - 2022-0428\16 SLA Property Ranking\CC - SR Prioritized Inventory List.docx A local agency disposing of surplus land must undertake certain proceedings under the SLA. The local agency must send a notice of availability (NOA) of the surplus land to designated entities for authorized purposes prior to participating in negotiations to dispose of the property. The designated entities include housing developers, HCD, local public entities, park and recreation departments, regional park authorities, the State Resources Agency, and school districts. The authorized purposes include low and moderate income housing, park, recreation, open-space, and school purposes. A designated entity that is interested in acquiring surplus land for the development of low and moderate income housing must agree to restrict at least 25% of the units for low income households pursuant to a covenant recorded against the property. Designated entities will have 60 days to respond to the NOA. The local agency must then enter into good faith negotiations with those designated entities that responded to the NOA for not less than 90 days in an attempt to agree to a mutually satisfactory sales price and terms or lease terms. If more than one designated entity responds, the local agency must give priority to the entity that agrees to use the surplus land for low and moderate income housing, regardless of the current zoning of the property. If there is more than one such entity, the local agency must give priority to the entity that proposes the greatest number of affordable units, and, if there is a tie, the local agency must give priority to the entity that proposes the deepest average level of affordability for the affordable units. However, first priority must be given to an entity that agrees to use the surplus land for park or recreational purposes if the property is already being used and will continue to be used for park or recreational purposes, of the land is designated for park and recreational use in the City’s General Plan and will be developed for that purpose. At the conclusion of the good faith negotiating period, if the local agency does not agree to price and terms with any of the designated entities, or if no designated entity responded to the NOA, the local agency may dispose of the property outside of the SLA. However, the local agency must record a covenant against the land which provides that if 10 or more residential units are developed on the property, not less than 15% of the units will be affordable for low-income households. Prior to finalizing any agreement or disposing of surplus land, the local agency must report certain information to HCD at the conclusion of the good faith negotiating period. Such information includes a summary of the negotiations and a copy of any covenant to be recorded against the property. HCD will have 30 days to review the information and determine if the proposed sale or lease will violate the SLA. The local agency will have an opportunity to correct any issues identified by HCD or explain how its process complied with the SLA. If HCD ultimately determines that a disposition violates the SLA, HCD will impose a penalty on the local agency (equal to 30% of the sale price for a first violation and 50% for subsequent violations, which penalty cannot be paid with funds already dedicated to affordable housing). Page 368 April 28, 2022 - Staff Report SLA – Central Inventory Priorities Page 5 of 5 W:\Staff Reports - Shared 2\Staff Reports 2022-0428\5 - Clerk's Office - 2022-0428\16 SLA Property Ranking\CC - SR Prioritized Inventory List.docx Dissolution Law Process In addition to complying with the SLA, the SARDA Board must also comply with the Dissolution Law when disposing of property. Generally, this means that SARDA must sell a property for not less than its fair market value, determined pursuant to a current appraisal, the sale must be approved by the Oversight Board, and the net sales proceeds must be remitted to the County Auditor-Controller for distribution to the taxing entities in accordance with their pro rata shares of the property tax. As a taxing entity, the City’s share is approximately three percent (3%). Proposed Timeline It is anticipated that disposition could take 12-18 months for properties within each priority. Prioritizing properties for disposition is not a legal requirement, and the City Council and SARDA Board maintain the ability to change priorities for the disposition of properties. In addition, the City Council and SARDA Board maintain the ability to determine whether to dispose of parcels individually or as a single unit. Fiscal Impact: The total estimated value of the Central Inventory properties is $60,117,550 based on current property valuations of other comparable properties in the area as per RealQuest data collected on March 31, 2022. Ultimately the timing of disposition of the properties may affect the fiscal impact to the City/SARDA. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER DSG for Robin Harris, RWG, City Special Legal Counsel Eric Ceja Eric Ceja Deputy Dir. Of Development Services/Economic Development Veronica Chavez Veronica Chavez Finance Director Andy Firestine Andy Firestine Assistant City Manager City Manager: L. Todd Hileman: L. Todd Hileman ATTACHMENTS: City of Palm Desert Central Inventory for Prioritization Page 369 PALM DESERT CENTRAL INVENTORY March 24, 2022 City of Palm Desert Central Inventory for Prioritization Unless otherwise indicated, Estimated Values are based on RealQuest data as of March 31, 2022. Common Name Designation Address (Apprximate or Actual)APN Owner Acre Sf Priority Estimated Value Current Use Alessandro Alley (non-contiguous) - Sell as one property Excess of foreseeable needs 44870 San Antonio Circle 627071067 SARDA 0.25 10890 High $495,639 Vacant Excess of foreseeable needs 44850 San Antonio Circle 627071068 SARDA 0.38 16553 High $495,639 Vacant Excess of foreseeable needs Alessandro Alley 627071065 City of Palm Desert 0.16 6970 High $461,000 Vacant Excess of foreseeable needs 44887 San Antonio Circle 627071069 SARDA 0.14 6098 High $471,618 Vacant Excess of foreseeable needs 44845 San Clemente Circle 627071070 City of Palm Desert 0.38 16553 High $540,825 Vacant House Excess of foreseeable needs 44889 San Clemente Circle 627071071 City of Palm Desert 0.14 6098 High $575,191 Vacant Excess of foreseeable needs San Clemente Circle 627074014 SARDA 0.42 18295 High $554,083 Vacant Total 1.87 81457 $3,593,995 Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694190005 SARDA 5.00 217800 High $10,227,611 Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694190006 SARDA 0.02 871 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694190007 SARDA 8.54 372002 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694190013 SARDA 2.55 111078 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694190014 SARDA 5.03 219107 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694190016 SARDA 0.21 9148 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694200003 SARDA 4.89 213008 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694200004 SARDA 7.90 344124 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694200006 SARDA 0.05 2178 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694200007 SARDA 8.81 383764 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694200011 SARDA 81.50 3550140 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694200012 SARDA 2.20 95832 High - Vacant Excess of foreseeable needs NEC of Portola and Frank Sinatra Dr 694200022 SARDA 42.85 1866546 High - Vacant Total 169.55 7,385,598 $10,227,611 Monterey Crossing "Triangle Site" Excess of foreseeable needs 73420 Dinah Shore 694060010 City of Palm Desert 0.67 29185 High $1,362,375 Vacant/CVWD water main access Total 0.67 29,185 $1,362,375 Desert Willow Lot Pad C Excess of foreseeable needs NEC of Desert Willow Dr and Country Club Dr 620450012 SARDA 16.91 736600 High $3,969,867 Vacant Excess of foreseeable needs NEC of Desert Willow Dr and Country Club Dr 620450013 SARDA 1.37 59677 High $2,936,667 Vacant Excess of foreseeable needs NEC of Desert Willow Dr and Country Club Dr 620450015 City 0.04 1742 High $195,125 Vacant Total 18.32 798019 $7,101,659 Desert Willow Lot Pad A Excess of foreseeable needs East side of Desert Willow Drive, North of Country Club 620400025 SARDA 14.46 629877 High $4,674,000 Vacant Excess of foreseeable needs East side of Desert Willow Drive, North of Country Club 620450012 SARDA 16.91 736599 High $6,385,500 Vacant Excess of foreseeable needs East side of Desert Willow Drive, North of Country Club 620450013 SARDA 1.37 59677 High $3,326,000 Vacant Excess of foreseeable needs East side of Desert Willow Drive, North of Country Club 620450014 SARDA 0.45 19602 High $1,534,850 Vacant Excess of foreseeable needs East side of Desert Willow Drive, North of Country Club 620450017 SARDA 0.19 8276 High $895,938 Vacant Excess of foreseeable needs East side of Desert Willow Drive, North of Country Club 620450018 SARDA 0.67 29185 High $1,734,875 Vacant Excess of foreseeable needs East side of Desert Willow Drive, North of Country Club 620450020 SARDA 13.67 595465 High $4,323,944 Vacant Total 47.72 2078681 $22,875,107 Desert Willow Lot Pad D Excess of foreseeable needs NEC of Desert Willow Dr and Country Club Dr 620450018 SARDA 0.67 29185 High $1,618,346 Vacant Excess of foreseeable needs NEC of Desert Willow Dr and Country Club Dr 620450020 SARDA 13.67 595465 High $4,323,944 Vacant Total 14.34 624650 $5,942,290 "170 Acre Site" - Sell as one property - Property valuation based on per acre value from the appriasal for the Refuge property sale. Page 1 of 3 4/21/20222:28 PM Page 370 PALM DESERT CENTRAL INVENTORY March 24, 2022 Common Name Designation Address (Apprximate or Actual)APN Owner Acre Sf Priority Estimated Value Current Use Mountain View Excess of foreseeable needs 45656 Mountain View 627351024 City of Palm Desert 0.17 7405 High $627,292 Vacant House Total 0.17 7405 $627,292 Portola Excess of foreseeable needs 45653 Portola Ave 627351010 City of Palm Desert 0.23 10019 High $510,000 Vacant House Total 0.23 10019 $510,000 Page 2 of 3 4/21/20222:28 PM Page 371 PALM DESERT CENTRAL INVENTORY March 24, 2022 Common Name Designation Address (Apprximate or Actual)APN Owner Acre Sf Priority Estimated Value Current Use Haystack Excess of foreseeable needs Haystack Drive 630250022 SARDA 1.9 82764 High $1,813,475 Vacant Total 1.9 82764 $1,813,475 Ocotillo Site Excess of foreseeable needs 45330 Ocotillo Drive 627232005 City of Palm Desert 0.53 23156 Medium $257,500 Vacant Total 0.53 23,156 $257,500 Wallaroo Center Excess of foreseeable needs 44911 Cabrillo Avenue 625082022 City of Palm Desert 0.27 11761 Medium $1,245,000 Vacant Building Excess of foreseeable needs 44911 Cabrillo Avenue 625082023 City of Palm Desert 0.22 9583 Medium $1,287,500 Vacant Building Total 0.49 21344 $2,532,500 Entrada Del Paseo Excess of foreseeable needs Next to 72599 CA-111 640370018 City of Palm Desert 2.01 85365 Low $2,058,571 Vacant Excess of foreseeable needs Next to 72559 CA-111 640370016 City of Palm Desert 0.68 23823 Low $1,215,175 Vacant Total 2.69 109,188 $3,273,746 Total SARDA Estimated Value $49,781,996 Total City Estimated Value $10,335,554 Total Estimated Value $60,117,550 Page 3 of 3 4/21/20222:28 PM Page 372 CITY OF PALM DESERT DEPARTMENT OF DEVELOPMENT SERVICES CITY COUNCIL STAFF REPORT MEETING DATE: April 28, 2022 PREPARED BY: Rosie Lua, Principal Planner REQUEST: Consideration of approval to the City Council for Zoning Ordinance Amendment to modify Palm Desert Municipal Code Section 25.34.060 regarding Time-Share Projects. Recommendation Waive further reading and pass to second reading City Council Ordinance No. ______, approving Zoning Ordinance Amendment 22-0001 to modify Palm Desert Municipal Code Section 25.34.060 regarding Time-Share Projects. Planning Commission Recommendation On January 18, 2022, the Planning Commission considered the Zoning Ordinance Amendment (ZOA) 22-0001 to modify Palm Desert Municipal Code Section 25.34.060 regarding Time-Share Projects. Planning Commission approved Resolution No. 2805 recommending to the City Council approval by vote 5-0. City Council Meetings On February 24, 2022, the City Council opened the public hearing and approved a request from staff to continue to the meeting of March 24, 2022. On March 24, 2022, another continuance of the public hearing was granted to April 28, 2022, allowing staff to meet with the City’s Short Term Rental (STR) Subcommittee and time for staff to make appropriate changes to the zoning ordinance. Strategic Plan • Land Use, Housing & Open Space – Priority 5: “Utilize progressive land use policies and standards to support ongoing and future needs.” Background Analysis On November 18, 2021, the City Attorney presented a memo to City Council addressing the Pacaso business model purchasing property in tourist destinations like the City of Palm Desert targeting the second or vacation home market. Founded in 2020, the Pacaso owns title to the residential home by forming a limited liability company (“LLC”), then markets “co- ownership” interests in the homes to up to eight individuals for a certain number of days per Page 373 April 28, 2022 –Staff Report Case No. ZOA 22-0001 Time-Share Uses - Pacaso Page 2 of 4 year as specified in their share of ownership in the LLC. The one-eighth interest entitles the purchaser to stay at the property for up to 45 days per year in increments of 2-14 days, including one “special day” (Fourth of July, Thanksgiving, Christmas, etc.). The stays are reserved through a mobile application, and while each co-owner is prohibited from renting the home as a short-term rental, they are permitted to allow other guests to stay there during their allotted days. Once shares in an LLC are sold, a Pacaso manages the homes, providing landscaping and pool maintenance, furnishing the homes, and paying all expenses, which are then passed through to the co-owners of the LLC. The City Attorney opined that the Pacaso business formation is a “timeshare” as defined in the Business and Profession Code Section 11212(z) and regulated by Section 25.34.060 (Time-Share Projects) of the Palm Desert Municipal Code (PDMC). The Pacaso’s are not regulated by the state law since there are less than ten co-owners, the minimum number of co-owners required to be regulated by state law. The PDMC permits timeshare projects in planned residential zones, general commercial zone, or the planned commercial resort zone and includes a requirement for a resort hotel having 500 or more rooms and an 18-hole golf course of not less than 6,400 yards, and then only if and when a conditional use permit has been obtained from the Commission in accordance with Section 25.72.050 (Conditional Use Permit) of the code. The Pacaso type of business formation would not be permitted to operate in a single-family residential property and operate as a timeshare use since the use does not meet all the criteria of the PDMC. The purpose of this ordinance is to ensure that the City is able to maintain its existing and limited housing stock for use in long term residency, and to maintain the character of its residential zones. The conversion of homes in the city to timesharing projects would eliminate residential dwelling units that would otherwise be available for long-term residential use, thereby further exacerbating the lack of long-term available housing in the City. To Staff’s knowledge, Pacaso has facilitated the purchase of and management of at least one (1) single family home and currently advertising three (3) homes for one-eighth purchase within the City of Palm Desert. No other Pacaso type entities are known to have ownership of homes within the City. Discussion Staff has studied the timeshare ordinance amendment and its intended regulations including a consultation with the Short-Term Rental (STR) subcommittee to discuss the proposed amendment and the Pacaso type business formations. The Pacaso’s are not regulated by the Short-Term Rental Ordinance of the city since the business operations do not allow short term rentals as part of their structure. In addition, the subcommittee discussed the City’s intent to regulate arrangements of multiple parties and its direct impact on the housing stock. In the formation of this ordinance, it is not the City’s intent to regulate arrangements whereby multiple parties join in directly purchasing full ownership of an accommodation and thereafter agree upon arrangements for their shared use. For example, the city is not regulating ownership between family or friends who chose to purchase a property, form an LLC, and the manage the rental or upkeep through a management company so long as a fractional ownership structure is not formed. Page 374 April 28, 2022 –Staff Report Case No. ZOA 22-0001 Time-Share Uses - Pacaso Page 3 of 4 The proposed ordinance amendment to Section 25.34.060 (Time-Share Project) includes a more robust definition, to refer to current California law, and to provide a broader scope to include Pacaso types of business formations. In addition, it includes a section for violations, enforcement, and civil penalties to regulate such proposed business operations. It should be noted that the ordinance in this staff report differs from the Planning Commission’s recommendation, Resolution No. 2805 which was revised to provide further clarifications on the intent of the ordinance as stated in the discussion above. General Plan The General Plan promotes goals and policies to protect and enhance community value in neighborhoods and its surroundings. Land Use and Community Character Policy 1.1 (Scale of development) promotes the City’s corridors to use design techniques to a moderate height and use and ensure compatible fit with surrounding development. Therefore, the proposed amendment to the timeshare ordinance supports the City’s goal in meeting the intent of the General Plan. Public Input Public noticing was conducted in accordance with State law. A public hearing notice was published on February 11, 2022, in The Desert Sun. The public hearing was opened on February 11, 2022, continued to March 24, 2022, and further continued to April 28, 2022. Staff has received a half dozen phone calls from the public concerning Pacaso co- ownership within their neighborhoods and inquiring if Short-term Rental Ordinances would apply. On March 10, staff received a phone call from Marcus Schwab, a resident that lives on Bel Air Road expressing concern of business formations functioning like timeshares that affects the character of his neighborhood. Not knowing who their neighbors are was expressed as a real concern. Mr. Schwab identified the property as 72870 Bel Air Rd which is being advertised on eXp Realty’s website, a home selling in his neighborhood that he says is priced high which can result in pricing out qualified homebuyers. Other residents have expressed concerned of properties on 72694 Skyward Way and 72985 Somera Rd being advertised as timeshare ownership. These particular properties are listed in the Pacaso website as well as other realtor websites including Trulia, Zillow, Redfin, etc. The properties mentioned above have all been confirmed to be associated with Pacaso. However, since the ownership of these properties includes eight owners (1/8 ownership), it is difficult to track if any property has been sold full or partial ownership. Environmental Review The adoption of this ordinance has been analyzed for compliance with the California Environmental Quality Act (CEQA) pursuant to CEQA (Pub. Resources Code, § 21000 et seq.) (“CEQA”) and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) it has been determined that the amendments do not meet the definition of a project because the amendments do not have the potential to cause either a direct physical change or a Page 375 April 28, 2022 –Staff Report Case No. ZOA 22-0001 Time-Share Uses - Pacaso Page 4 of 4 reasonably foreseeable indirect physical change in the environment. The proposed amendments are consistent with the General Plan goals of ensuring the quality of life for the community. Because the amendment is not a project under CEQA, they are not subject to further environmental review. Findings of Approval Findings can be made in support of the amendment and in accordance with the City’s Municipal Code. Findings in support of this ZOA are contained in the Ordinance No. _____, attached to this staff report. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER Robert W. Hargreaves City Attorney Martin Alvarez Martin Alvarez, Dir. of Development Services N/A Veronica Chavez Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager L. Todd Hileman: L. Todd Hileman ATTACHMENTS: 1. Draft City Council Ordinance No. _____ 2. Exhibit A – Ordinance 3. Planning Commission Resolution No. 2805 4. Planning Commission Draft Minutes of January 18, 2022 5. City Council Public Hearing Notice 6. City Council Memo dated November 18, 2021 7. Public Comments Page 376 ORDINANCE NO. ____ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING PALM DESERT MUNICIPAL CODE, CHAPTER 25, MODIFYING SECTION 25.34.60 REGARDING TIME-SHARE PROJECTS CASE NO: ZOA 22-0001 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 18th day of January 2022, hold a duly noticed public hearing to consider the request by the City of Palm Desert for approval of the above-noted, and adopted Resolution No. 2805, recommending that the City Council adopt the Zoning Ordinance Amendment (ZOA) for said projects regulating the time-share projects; and WHEREAS, the Zoning Ordinance Amendment (ZOA) modifies the Palm Desert Municipal Code (PDMC) Section 25.34.60 (Time-Share Projects) and implements a requirement for time share uses; and WHEREAS, the City Council of the City of Palm Desert, did on the 24th day of February 2022, hold a duly noticed public hearing to, the City Council opened the public hearing and approved staff’s request to continue to the 24th of March 2022. On the 24th of March 2022, another continuance of the public hearing was granted to the 28th of April 2022. On the 28th of April 222, the City Council considered the request by the City of Palm Desert for approval of a ZOA determined that the time-share process is consistent with the City’s General Plan; and WHEREAS, at said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, said City Council did find the following facts and reasons exist to approve said request: SECTION 1. Adoption of Recitals. The City Council hereby adopts the foregoing recitals as its findings in support of the following regulations and further finds that the following regulations are beneficial and appropriate to protect the health, safety, and welfare of the residents and businesses of Palm Desert within the City limits. A. The City of Palm Desert, California (“City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and B. The Planning and Zoning Law authorizes cities to establish by ordinance the regulations for land use and development. SECTION 2. Amendment. The City Council of the City of Palm Desert, California, approve, and adopt the PDMC amendment to Section 25.34.60 (Time-Share Projects) as shown in Exhibit A, which is attached hereto and incorporated herewith. SECTION 3. Severability. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this ordinance or any Page 377 ORDINANCE NO. _____ 2 part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective. SECTION 4. Publication. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this ordinance in The Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and in effect thirty (30) days after its adoption. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert, California, at its regular meeting held on the 28th day of April 2022, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: JAN C. HARNIK, MAYOR ATTEST: ANTHONY J. MEJIA, CITY CLERK CITY OF PALM DESERT, CALIFORNIA Page 378 “EXHIBIT A” ZONING ORDINANCE AMENDMENT SECTION 1. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code section 25.34.060 is hereby amended as follows: “25.34.060 Time-Share Projects Uses A. Purpose. The purpose of the special use regulations for time-share projects uses is to establish special location and site development standards. B. Definitions. 1. “Accommodation” means any dwelling unit, apartment, condominium or cooperative unit, hotel or motel room, or other structure constructed for residential use and occupancy, including but not limited to a single family dwelling, or unit within a two family dwelling, three family dwelling, multiple family dwelling, or townhouse dwelling as defined in Section 17.04.160. 2. “Developer” means person, who at any point in time, owns, or has an option or contract to acquire eleven or more time-share interests for purposes of sale in the ordinary course of business if the time-share interests were acquired or are to be acquired from the original recipient of a public report for the time-share plan, or from a person who succeeded to the interest of the original recipient in eleven or more time-share interests in a time-share plan. 3. “Owner” means owner of a time-share interest. 4. “Person” means a natural person, corporation, limited liability company, partnership, joint venture, association, estate, trust, or other legal entity, or any combination thereof. 5. “Time-share instrument” means one or more documents, by whatever name denominated, creating or governing the operation of a time-share plan and includes the declaration dedicating accommodations to the time-share plan. 6. “Time-share interest” means and includes either of the following: (i) A “time-share estate,” which is the right to exclusively occupy a time-share property for a period of time on a recurring basis pursuant to a time-share plan, coupled with a freehold estate or an estate for years with a future interest in a time-share property or a specified portion thereof. (ii) A “time-share use,” which is the right to exclusively occupy a time-share property for a period of time on a recurring basis pursuant to a time-share plan, which right is neither coupled with a freehold interest, nor coupled with an estate for years with a future interest, in a time-share property. 7. “Time-share plan” means any arrangement, plan, scheme, or similar device, whether by membership agreement, sale, lease, deed, license, right to use agreement, or Page 379 by any other means, whereby a purchaser, in exchange for consideration, receives the right to exclusive use of an accommodation or accommodations, whether through the granting of ownership rights, possessory rights or otherwise, for a period of time less than a full year during any given year, on a recurring basis for more than one year, but not necessarily for consecutive years. "Timeshare Plan" does not include arrangements whereby multiple parties join in directly purchasing full ownership of an accommodation and thereafter agree upon arrangements for their shared use. 8. “Time-share property” means one or more accommodations subject to the same time-share instrument, together with any other property or rights to property appurtenant to those accommodations. 9. “Time-share use” means the use of one or more accommodations or any part thereof, as a time-share property pursuant to a time-share plan. B. C. Permitted zones. A time-share project use shall be permitted only in a planned residential zone, a general commercial zone, or a planned commercial resort zone. Any time- share project use shall be developed in conjunction with a resort hotel having 500 or more rooms and an 18-hole golf course of not less than 6,400 yards, and then only if and when a conditional use permit has been obtained from the Commission in accordance with Section 25.72.050 (Conditional Use Permit) of this code. C. D. Application submittal requirements. In addition to standard application submittal requirements, an applicant for a conditional use permit approval involving a time- share project use shall submit in the application at least the following information: 1. Copies of documents and information required pursuant to Article 12.2 of the California Administrative Code of Regulations, Sections 2810 2809.1, 2809.2, and 2809.3 wherein the requirements for a “substantially properly completed” application for a final subdivision public report are enumerated, excluding those documents so enumerated which are subject to the approval of the City and therefore otherwise available to the City. In the event such documents and information have not been filed with the California Department of Real Estate at the time an applicant applies for a conditional use permit, the applicant shall furnish such documents and information upon the submission of such documents and information to the Department of Real Estate, but in no event later than the issuance of the conditional use permit. 2. In the event an existing condominium project is proposed to be converted to a whole or partial time-share project use, a verified description or statement of the number and percentage of the current condominium owners desiring or consenting to the proposed conversion of some or all of the units to a time-share basis shall be submitted. Also, in such instance there shall be submitted to the Commission prior to or during the hearing process, a verified statement of the number and percentage of owners who have received notification, either personally or by receipted certified US mail. 3. In the case of a new mixed project (i.e., time-sharing condominium/rental), a description of the means proposed to be employed to disclose the number and location of all time-share units accommodations within the project time-share use shall be submitted. Page 380 4. Description of time periods, types of units accommodations, and which units accommodations are in the time-share program (if less than all), and the length of time each of the units accommodations are committed to the time-share program plan shall be submitted. D. E. Requirements. Notwithstanding any other provisions of this chapter, the following requirements must be met by any time-share development use in any permitted zone: 1. The time-share project use must be composed of “time-share estates” interests as defined in California Business and Professions Code Section 11003.5. 2. All maintenance agreements and conditions, covenants, and restrictions must be approved by the City. 3. The minimum time-share use interest exclusive occupancy period shall be for one week (seven days). 4. Project sponsor Developer of the time-share plan shall post a maintenance bond, letter of credit, or cash deposit to ensure the maintenance of any landscaping along the perimeter of the project time-share use abutting any public right-of-way. The amount of the bond, letter of credit, or cash deposit shall be equal to 25 percent of the annual budget of the time-share use owner’s association having the duty to maintain the exterior of the time- share property project which is for such landscaping expenses. The bond, letter of credit, or cash deposit shall run to the City and shall remain in place for life of the project time-share plan. 5. With respect to a time-share project use, all interests created therein shall be subject to a public facilities impact mitigation fee of $150 per week share. With respect to each week share in a time-share project use, a public facilities impact fee payable under this section shall be paid on the first day of the first calendar month following the sale and conveyance of such week share by the sponsor developer of a time-share project plan to an individual consumer (excluding bulk sales from one sponsor developer to another, in which case the successor sponsor developer shall have the obligation to pay the public facilities impact fee described herein upon the sale and conveyance of a week share to a consumer). On the first day of each calendar month, or less frequently if required by the Council, a sponsor developer of a time-share project plan shall also submit a written report to the City which specifies the number of week shares in the time-share project plan which have been sold and conveyed in the preceding calendar month. E. F. Minimum number of units. The minimum number of units in a time-share project shall be 50. F. G. Development standards. Time-share projects uses shall be designed to conform to the standards for hotel developments in the event the time-share project use is located in a planned commercial resort or general commercial zone. The time-share project use must comply with all development standards of the zone in which it is located. With respect to time-share projects uses developed within a planned residential zone, the density of the time-share project uses shall not exceed the density permitted in such zone for Page 381 residential projects; with respect to time-share projects uses developed in a general commercial zone or a planned commercial resort zone, the density of the time-share project uses shall not exceed the density permitted in such zone for general commercial or planned commercial projects. In determining the density of a time-share project use, upon the request of an applicant, the Director shall have the authority to transfer the density permitted in other similarly zoned property owned by an applicant to the time-share project use. H. Violations, Enforcement and Civil Penalties 1. Any responsible person, including but not limited to an owner of a time-share interest, management entity, agent, or broker who uses, or allows the use of, or advertises or causes to be printed, published, advertised or disseminated in any way and through any medium, the availability for sale or use of an accommodation in violation of this section is guilty of a misdemeanor for each day in which such accommodation is used, allowed to be used, or advertised for sale or use in violation of this chapter. Such violation shall be punishable pursuant to Chapter 1.12 (General Penalty). 2. Any responsible person, including by not limited to an owner of a time-share interest, management entity, agent, or broker who uses, or allows the use of, or advertises or causes to be printed, published advertised or disseminated in any way and through any medium, the availability for sale or use of an accommodation in violation of this section is subject to administrative fines as set forth in Chapter 8.81 (Administrative Citations). Any person issued an administrative citation pursuant to this section shall for each separate violation be subject to: (1) an administrative fine in an amount not to exceed one thousand dollars ($1,000) for the first citation; (2) an administrative fine in an amount not to exceed three thousand dollars ($3,000) for a second citation issued for the same offense within a twelve-month period of the date of the first offense; and (3) a fine in an amount not to exceed five thousand dollars ($5,000). 3. Time-share use, and/or advertisement for time-share use, of an accommodation in violation of this section is a threat to public health, safety or welfare and is thus declared to be unlawful and a public nuisance and may be abated pursuant to Chapter 8.20 (Public Nuisances), Chapter 9.24 (Noise Control), and Chapter 9.25 (Multiple Responses to Loud or Unruly Parties, Gatherings or Other Similar Events.) 4. Each day the violation of this chapter occurs shall constitute a separate offense. 5. The remedies under this section are cumulative and in addition to any and all other remedies available at law and equity.” Page 382 PLANNING COMMISSION RESOLUTION NO. 2805 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING APPROVAL OF A ZONING ORDINANCE AMENDMENT TO MODIFY PALM DESERT MUNICIPAL CODE SECTION 25.34.60 REGARDING TIMESHARE PROJECTS CASE NO: ZOA 22-0001 WHEREAS, the Planning Commission of the City of Palm Desert, California, did on the 18th day of January 2022, hold a duly noticed public hearing to consider the request by the City of Palm Desert for approval of the above-noted; and WHEREAS, the Zoning Ordinance Amendment (ZOA) modifies the Palm Desert Municipal Code (PDMC) Section 25.34. 60 (Timeshare Projects) to update the ordinance to clarify definitions and add enforcement options; and WHEREAS, the Planning Commission of the City of Palm Desert, in reviewing all the facts and any testimony given, adopts the following as its Findings in recommended approval of the ZOA to the City Council: SECTION 1. Findings. The Planning Commission of the City of Palm Desert hereby finds that: A. The City of Palm Desert, California ("City") is a municipal corporation, duly organized under the constitution and laws of the State of California; and B. The Planning and Zoning Law authorizes cities to establish by ordinance the regulations for land use and development. SECTION 2. Amendment. The Planning Commission of the City of Palm Desert recommends that the City Council of the City of Palm Desert, California, approve and adopt the PDMC amendment to Section 25.34.60 (Timeshare Projects) as shown in Exhibit A, which is attached hereto and incorporated herewith. SECTION 3. Severability. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this ordinance or any part thereof. The Planning Commission hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective. SECTION 4. CEQA. The City Council finds that adoption of this ordinance is not a project," as defined in the California Environmental Quality Act (CEQA) because it does not have a potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and concerns general policy and procedure making. Page 383 PLANNING COMMISSION RESOLUTION NO. 2805 PASSED, APPROVED, AND ADOPTED by the Planning Commission of the City of Palm Desert, California, at its regular meeting held on the 18th day of January 2022, by the following vote, to wit: AYES: DE LUNA,GREENWOOD,GREGORY, HOLT, and PRADETTO NOES: NONE ABSENT: NONE ABSTAIN: NONE J"EENVAZOD CHAIR ATTEST: Vz MARTIN ALVAREZ, SECRETARY PALM DESERT PLANNING COMMISSION 2 Page 384 CITY OF PALM DESERT PALM DESERT PLANNING COMMISSION MINUTES TUESDAY, JANUARY 18, 2022 — 6:00 P.M. ZOOM VIRTUAL MEETING I. CALL TO ORDER Chair John Greenwood called the meeting to order at 6:01 p.m. II. ROLL CALL Present: Chair John Greenwood Vice-Chair Nancy DeLuna Commissioner Ron Gregory Commissioner Lindsay Holt Commissioner Joseph Pradetto Also Present: Craig Hayes, Assistant City Attorney Martin Alvarez, Director of Development Services Eric Ceja, Deputy Director of Development Services/Economic Development Rosie Lua, Principal Planner Jessica Gonzales, Senior Management Analyst Monica O'Reilly, Management Specialist II III. PLEDGE OF ALLEGIANCE Vice-Chair Nancy DeLuna led the Pledge of Allegiance. IV. SUMMARY OF COUNCIL ACTIONS Director of Development Services Martin Alvarez summarized pertinent City Council actions from the meeting of January 13, 2022. V. ORAL COMMUNICATIONS None Page 385 MINUTES PALM DESERT PLANNING COMMISSION JANUARY 18, 2021 VI. CONSENT CALENDAR A. MINUTES of the Regular Planning Commission meeting of December 21, 2021. Rec: Approve as presented. Upon a motion by Vice-Chair DeLuna, seconded by Commissioner Holt, and a 5- 0 vote of the Planning Commission, the Consent Calendar was approved as presented AYES: DeLuna, Greenwood, Gregory, Holt, and Pradetto; NOES: None). VII. CONSENT ITEMS HELD OVER None Vill. NEW BUSINESS None IX. CONTINUED BUSINESS None X. PUBLIC HEARINGS A. REQUEST FOR CONSIDERATION to adopt a Notice of Exemption in accordance with the California Environmental Quality Act (CEQA) and approval of a Precise Plan PP) and a Conditional Use Permit (CUP) to demolish the former Pizza Hut building and construct a new 7,500-square-foot retail and restaurant building located at 72310 Highway 111. Case No. PP/CUP 20-0002 (Nadel Architects, Inc, Los Angeles, California, Applicant). Note, the staff report(s) and Zoom video of the meeting are available on the City's website. Click on the following link to access: www.planninq-commission- information-center. Vice-Chair DeLuna disclosed that she works for a company that is involved with a property in the Housing Element; therefore, she recused herself. Ms. Nicole Criste, Terra Nova Planning, the City's consultant, Palm Desert, California, presented a PowerPoint presentation regarding the Housing Element update. She recommended that the Planning Commission continue this item to February 1, 2022, to allow staff to work with the Department of Housing and Community Development to finalize details of the Housing Element. She also recommended opening the public hearing, taking public testimony, and leaving the public hearing open to the February 1 meeting. Chair Greenwood declared the public hearing open and invited public testimony FAVORING or OPPOSING this matter. 2 Page 386 MINUTES PALM DESERT PLANNING COMMISSION JANUARY 18, 2021 Ms. Liliana Figueroa and Mr. Mark Stein, with CPMC Realty, Palm Desert, California, voiced their concern with the designation for affordable housing units on their client's site. Commissioner Pradetto moved to, by Minute Motion, leaving the public hearing open and continuing Case No. GPA 21-0002 to February 1, 2022. The motion was seconded by Commissioner Gregory and carried by a 4- 0 vote (AYES: Greenwood, Gregory, Holt, and Pradetto; NOES: None; ABSENT: DeLuna). B. REQUEST FOR CONSIDERATION of a recommendation to the City Council for approval of a Zoning Ordinance Amendment to modify Palm Desert Municipal Code Section 25.34.060 regarding Timeshare Projects. Case No. ZOA 22-0001 (City of Palm Desert, Palm Desert California, Applicant). Principle Planner Rosie Lua gave a PowerPoint presentation reviewing the staff report in detail and recommended approval to the City Council. At this point, staff and the City Attorney responded to questions asked by the Planning Commission. Chair Greenwood declared the public hearing open and invited public testimony FAVORING or OPPOSING this matter. With no testimony offered, Chair Greenwood declared the public hearing closed. The Planning Commission concurred with the direction that the City is taking regarding timeshare projects. Commissioner Pradetto moved to waive further reading and adopt Planning Commission Resolution No. 2805, recommending approval to the City Council for Case No. ZOA 22-0001. The motion was seconded by Vice-Chair DeLuna and carried by a 5-0 vote AYES: DeLuna, Greenwood, Gregory, Holt, and Pradetto; NOES: None). XI. MISCELLANEOUS None XII. COMMITTEE MEETING UPDATES A. CULTURAL ARTS COMMITTEE Commissioner Holt mentioned that she shared the San Pablo Corridor Art Plan and the details for the meeting scheduled on Monday, January 24 at 11:30 a.m. to discuss the plan. 3 Page 387 MINUTES PALM DESERT PLANNING COMMISSION JANUARY 18, 2021 B. PARKS & RECREATION COMMISSION Mr. Alvarez stated that the Planning staff presented a concept plan for a park on Gerald Ford Drive and near Interstate 10. Staff hoped that the City would develop the park in two to three years. Chair Greenwood asked for the status of the Portola Avenue interchange. Mr. Alvarez responded that currently, the project is not feasible due to needing additional funding. Staff would discuss funding during the budget process and the City Council. XIII. REPORTS AND REMARKS None XIV. ADJOURNMENT With the Planning Commission concurrence, Chair Greenwood adjourned the meeting at 7:19 p.m. HN REEN O D, CH ATTEST: MARTIN ALVAREZ, SECRETARY MONK 'REILLY, REC DING SECRETARY 4 Page 388 CITY OF PALM DESERT LEGAL NOTICE NOTICE OF A PUBLIC HEARING BEFORE THE CITY COUNCIL OF THE CITY OF PALM DESERT TO CONSIDER APPROVAL FOR A ZONING ORDINANCE AMENDMENT TO MODIFY THE PALM DESERT MUNICIPAL CODE SECTION 25.34.060 (TIME-SHARE PROJECTS) The City of Palm Desert City Council (City), in its capacity as the Lead Agency, finds that this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated study of impacts. Project Location/Description: Project Location: City wide Project Description: Zoning Ordinance Amendment to update the Time Share Project ordinance (Chapter 25.34.60) to consider a regulatory response to the Pacaso type businesses related to “co-ownership” shares in residential properties operating within the City. Recommendation: City Council to approve the first reading of the Time-Share uses and its regulations and pass to second reading in accordance to CEQA Guidelines. Public Hearing: The public hearing will be held before the City Council on February 24, 2022, at 4:00 p.m. via Zoom. The hearing will be conducted in accordance with the City’s emergency protocols for social distancing. Options for remote participation will be listed on the Posted Agenda for the meeting at: https://www.cityofpalmdesert.org/our-city/mayor-and-city-council- /city-council-meeting-information-center. Comment Period: The public comment period for this project is from February 14, 2022 to February 24, 2022. Public Review: The plans and related documents are available for public review Monday through Thursday from 8:00 a.m. to 5:00 p.m. by contacting the project planner, Rosie Lua, Principal Planner. Please submit written comments to the Planning/Land Development Division. If any group challenges the action in court, issues raised may be limited to only those issues raised at the public hearing described in this notice or in written correspondence at, or prior to the City Council hearing. All comments and any questions should be directed to: Rosie Lua, Principal Planner City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 (760) 346-0611, Extension 480 rlua@cityofpalmdesert.org PUBLISH: DESERT SUN NIAMH M. ORTEGA, DEPUTY CITY CLERK FEBRUARY 10, 2022 PALM DESERT CITY COUNCIL Page 389 STAFF REPORT CITY OF PALM DESERT MEETING DATE: November 18, 2021 PREPARED BY: Robert Hargreaves, City Attorney, Best Best & Krieger LLP REQUEST: Update on Timeshare Ordinance _____________________________________________________________________ Recommendation By Minute Motion, request the Planning Commission to review of the timeshare ordinance and provide City Council with any recommended amendments. Background Analysis INTRODUCTION Recently, the City has become aware that a new business model, “Pacaso”, that features “co-ownership” shares in residential properties, has begun operating within the City. Given the nature of its use of residential property, it is my opinion that it is a timeshare use, as defined by California law and regulated by Section 25.34.060 of the Municipal Code. The Palm Desert timeshare ordinance (Municipal Code Section 25.34.060) has not been updated since 2013. As a preliminary matter in considering regulatory responses to the Pacaso-type businesses, we are recommending that Section 25.34.060 be updated to provide a more robust definition, to refer to current California law, and to provide a broader scope of potential regulation, should the city decide to pursue it. DISCUSSION Pacaso is a corporation that sells “co-ownership” shares in residential property. The company started by purchasing homes in tourist destinations in California, though they are rapidly expanding throughout the United States and internationally. Pacaso’s business model is as follows: Pacaso will purchase or enter into a contract to purchase single family homes, then markets “co-ownership” interests in the homes to up to eight individuals. Pacaso then forms a limited liability company (“LLC”), which owns title to the residential home. The “co-owners” each purchase a one-eighth share, and are entitled to use the residential property for a certain number of days per year according to their share of ownership in the LLC. The one-eighth interest entitles the purchaser to stay at the property for up to 45 days per year in increments of 2-14 days, including one “special Page 390 November 18, 2021 - Staff Report Update of Timeshare Ordinance Page 2 of 4 day” (Fourth of July, Thanksgiving, Christmas, etc.). The stays are reserved on an app, and while each co-owner is prohibited from renting the home as a short-term rental, they are permitted to allow other guests to stay there during their allotted days. Once shares in an LLC are sold, Pacaso continues to manage the homes, including providing landscaping and pool maintenance, furnishing the homes, and paying all expenses, which are then passed through to the co-owners. It is our understanding that there is currently at least one property in Palm Desert that is being marketed by Pacaso. Section 11212(z) of the Business and Profession Code defines the following significant terms: “Time-share plan” means any arrangement, plan, scheme, or similar device, other than an exchange program, whether by membership agreement, sale, lease, deed, license, right to use agreement, or by any other means, whereby a purchaser, in exchange for consideration, receives ownership rights in or the right to use accommodations for a period of time less than a full year during any given year, on a recurring basis for more than one year, but not necessarily for consecutive years. A time-share plan may be either of the following: (1) A “single site time-share plan” that is the right to use accommodations at a single time-share property. (2) A “multisite time-share plan” that includes either of the following: (A) A “specific timeshare interest” that is the right to use accommodations at a specific time-share property together with use rights in accommodations at one or more other component sites created by or acquired through the time-share plan's reservation system. (B) A “nonspecific time-share interest” that is the right to use accommodations at more than one component site created by or acquired through the time-share plan's reservation system, but including no specific right to use any particular accommodations. It is clear that the Pacaso model fits within that definition of “time-share plan” as co-owners receive ownership rights to use a property for less than a year on a recurring basis. Pacaso is not currently regulated by the State, as it does not meet the State’s ten-share threshold for regulation. Palm Desert Section 25.34.060 does not dwell on the definition of “time-share” and provides: “The time-share project must be composed of “time-share estates” as defined in California Business and Professions Code Section 11003.5 [now section 1121].” Nor does the ordinance provide any specific enforcement provisions. Page 391 November 18, 2021 - Staff Report Update of Timeshare Ordinance Page 3 of 4 In the attached draft ordinance, the definition of time-share is more elaborate, and is consistent with current California statutes. It also provides enforcement options against persons that own, manage, or market illegal time-shares. At this point, the draft ordinance is before the council for discussion and direction. If the council directs that the update proceed, the ordinance will be put before the planning commission for consideration and recommendation, before it is brought back to the city council for adoption. Page 392 November 18, 2021 - Staff Report Update of Timeshare Ordinance Page 4 of 4 Fiscal Analysis There is no direct fiscal impact associated with this item. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT CITY MANAGER RWH Robert W. Hargreaves City Attorney N/A N/A Janet M. Moore Director of Finance Andy Firestine Andy Firestine Assistant City Manager City Manager L. Todd Hileman: L. Todd Hileman ATTACHMENTS: Draft ordinance Page 393 ORDINANCE NO. _____ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING PALM DESERT MUNICIPAL CODE SECTION 25.34.060 REGARDING TIME-SHARE PROJECTS THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES ORDAIN AS FOLLOWS: SECTION 1. Amendment to Palm Desert Municipal Code. Palm Desert Municipal Code section 25.34.060 is hereby amended as follows: “25.34.060 Time-Share Projects Uses A. Purpose. The purpose of the special use regulations for time-share projects uses is to establish special location and site development standards. B. Definitions. 1. “Accommodation” means any dwelling unit, apartment, condominium or cooperative unit, hotel or motel room, or other structure constructed for residential use and occupancy, including but not limited to a single family dwelling, or unit within a two family dwelling, three family dwelling, multiple family dwelling, or townhouse dwelling as defined in Section 17.04.160. 2. “Developer” means person, who at any point in time, owns, or has an option or contract to acquire eleven or more time-share interests for purposes of sale in the ordinary course of business if the time-share interests were acquired or are to be acquired from the original recipient of a public report for the time-share plan, or from a person who succeeded to the interest of the original recipient in eleven or more time-share interests in a time-share plan. 3. “Owner” means owner of a time-share interest. 4. “Person” means a natural person, corporation, limited liability company, partnership, joint venture, association, estate, trust, or other legal entity, or any combination thereof. 5. “Time-share instrument” means one or more documents, by whatever name denominated, creating or governing the operation of a time-share plan and includes the declaration dedicating accommodations to the time-share plan. 6. “Time-share interest” means and includes either of the following: (i) A “time-share estate,” which is the right to exclusively occupy a time-share property for a period of time on a recurring basis pursuant to a time-share plan, coupled with a freehold estate or an estate for years with a future interest in a time-share property or a specified portion thereof. Page 394 (ii) A “time-share use,” which is the right to exclusively occupy a time-share property for a period of time on a recurring basis pursuant to a time-share plan, which right is neither coupled with a freehold interest, nor coupled with an estate for years with a future interest, in a time-share property. 7. “Time-share plan” means any arrangement, plan, scheme, or similar device, whether by membership agreement, sale, lease, deed, license, right to use agreement, or by any other means, whereby a purchaser, in exchange for consideration, receives the right to exclusive use of an accommodation or accommodations, whether through the granting of ownership rights, possessory rights or otherwise, for a period of time less than a full year during any given year, on a recurring basis for more than one year, but not necessarily for consecutive years. 8. “Time-share property” means one or more accommodations subject to the same time-share instrument, together with any other property or rights to property appurtenant to those accommodations. 9. “Time-share use” means the use of one or more accommodations or any part thereof, as a time-share property pursuant to a time-share plan. B. C. Permitted zones. A time-share project use shall be permitted only in a planned residential zone, a general commercial zone, or a planned commercial resort zone. Any time- share project use shall be developed in conjunction with a resort hotel having 500 or more rooms and an 18-hole golf course of not less than 6,400 yards, and then only if and when a conditional use permit has been obtained from the Commission in accordance with Section 25.72.050 (Conditional Use Permit) of this code. C. D. Application submittal requirements. In addition to standard application submittal requirements, an applicant for a conditional use permit approval involving a time-share project use shall submit in the application at least the following information: 1. Copies of documents and information required pursuant to Article 12.2 of the California Administrative Code of Regulations, Sections 2810 2809.1, 2809.2, and 2809.3 wherein the requirements for a “substantially properly completed” application for a final subdivision public report are enumerated, excluding those documents so enumerated which are subject to the approval of the City and therefore otherwise available to the City. In the event such documents and information have not been filed with the California Department of Real Estate at the time an applicant applies for a conditional use permit, the applicant shall furnish such documents and information upon the submission of such documents and information to the Department of Real Estate, but in no event later than the issuance of the conditional use permit. 2. In the event an existing condominium project is proposed to be converted to a whole or partial time-share project use, a verified description or statement of the number and percentage of the current condominium owners desiring or consenting to the proposed conversion of some or all of the units to a time-share basis shall be submitted. Also, in such instance there shall be submitted to the Commission prior to or during the hearing process, a verified statement of the number and percentage of owners who have received notification, either personally or by receipted certified US mail. Page 395 3. In the case of a new mixed project (i.e., time-sharing condominium/rental), a description of the means proposed to be employed to disclose the number and location of all time-share units accommodations within the project time-share use shall be submitted. 4. Description of time periods, types of units accommodations, and which units accommodations are in the time-share program (if less than all), and the length of time each of the units accommodations are committed to the time-share program plan shall be submitted. D. E. Requirements. Notwithstanding any other provisions of this chapter, the following requirements must be met by any time-share development use in any permitted zone: 1. The time-share project use must be composed of “time-share estates” interests as defined in California Business and Professions Code Section 11003.5. 2. All maintenance agreements and conditions, covenants, and restrictions must be approved by the City. 3. The minimum time-share use interest exclusive occupancy period shall be for one week (seven days). 4. Project sponsor Developer of the time-share plan shall post a maintenance bond, letter of credit, or cash deposit to ensure the maintenance of any landscaping along the perimeter of the project time-share use abutting any public right-of-way. The amount of the bond, letter of credit, or cash deposit shall be equal to 25 percent of the annual budget of the time-share use owner’s association having the duty to maintain the exterior of the time-share property project which is for such landscaping expenses. The bond, letter of credit, or cash deposit shall run to the City and shall remain in place for life of the project time-share plan. 5. With respect to a time-share project use, all interests created therein shall be subject to a public facilities impact mitigation fee of $150 per week share. With respect to each week share in a time-share project use, a public facilities impact fee payable under this section shall be paid on the first day of the first calendar month following the sale and conveyance of such week share by the sponsor developer of a time-share project plan to an individual consumer (excluding bulk sales from one sponsor developer to another, in which case the successor sponsor developer shall have the obligation to pay the public facilities impact fee described herein upon the sale and conveyance of a week share to a consumer). On the first day of each calendar month, or less frequently if required by the Council, a sponsor developer of a time- share project plan shall also submit a written report to the City which specifies the number of week shares in the time-share project plan which have been sold and conveyed in the preceding calendar month. E. F. Minimum number of units. The minimum number of units in a time-share project shall be 50. F. G. Development standards. Time-share projects uses shall be designed to conform to the standards for hotel developments in the event the time-share project use is located in a planned commercial resort or general commercial zone. The time-share project use must comply with all development standards of the zone in which it is located. With respect to time-share Page 396 projects uses developed within a planned residential zone, the density of the time-share project uses shall not exceed the density permitted in such zone for residential projects; with respect to time-share projects uses developed in a general commercial zone or a planned commercial resort zone, the density of the time-share project uses shall not exceed the density permitted in such zone for general commercial or planned commercial projects. In determining the density of a time-share project use, upon the request of an applicant, the Director shall have the authority to transfer the density permitted in other similarly zoned property owned by an applicant to the time-share project use. H. Violations, Enforcement and Civil Penalties 1. Any responsible person, including but not limited to an owner of a time-share interest, management entity, agent, or broker who uses, or allows the use of, or advertises or causes to be printed, published, advertised or disseminated in any way and through any medium, the availability for sale or use of an accommodation in violation of this section is guilty of a misdemeanor for each day in which such accommodation is used, allowed to be used, or advertised for sale or use in violation of this chapter. Such violation shall be punishable pursuant to Chapter 1.12 (General Penalty). 2. Any responsible person, including by not limited to an owner of a time-share interest, management entity, agent, or broker who uses, or allows the use of, or advertises or causes to be printed, published advertised or disseminated in any way and through any medium, the availability for sale or use of an accommodation in violation of this section is subject to administrative fines as set forth in Chapter 8.81 (Administrative Citations). Any person issued an administrative citation pursuant to this section shall for each separate violation be subject to: (1) an administrative fine in an amount not to exceed one thousand dollars ($1,000) for the first citation; (2) an administrative fine in an amount not to exceed three thousand dollars ($3,000) for a second citation issued for the same offense within a twelve-month period of the date of the first offense; and (3) a fine in an amount not to exceed five thousand dollars ($5,000). 3. Time-share use, and/or advertisement for time-share use, of an accommodation in violation of this section is a threat to public health, safety or welfare and is thus declared to be unlawful and a public nuisance and may be abated pursuant to Chapter 8.20 (Public Nuisances), Chapter 9.24 (Noise Control), and Chapter 9.25 (Multiple Responses to Loud or Unruly Parties, Gatherings or Other Similar Events.) 4. Each day the violation of this chapter occurs shall constitute a separate offense. 5. The remedies under this section are cumulative and in addition to any and all other remedies available at law and equity.” SECTION 2. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or any part thereof, is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase Page 397 be declared unconstitutional. If for any reason any portion of this Ordinance is found to be invalid by a court of competent jurisdiction, the balance of this Ordinance shall not be affected. SECTION 3. Certification and Publication. The City Clerk of the City of Palm Desert shall certify to the adoption of this Ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the City in a manner permitted under California Government Code Section 36933. SECTION 4. CEQA. The City Council finds that adoption of this Ordinance is not a “project,” as defined in the California Environmental Quality Act because it does not have a potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and concerns general policy and procedure making. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Palm Desert on the _______ day of ______________, 2021, by the following vote. AYES: NOES: ABSTAIN: ABSENT: ____________________________________ Kathleen Kelly, Mayor ATTEST: ______________________________________ Norma Alley, City Clerk APPROVED AS TO FORM: ____________________________ Robert Hargreaves, City Attorney Page 398 From:Kevin Swartz To:Rosie Lua Subject:FW: Latest Pacaso Report Date:Monday, April 11, 2022 7:56:25 AM FYI. Kevin Swartz Associate Planner Ph: 760.346.0611 Direct: 760.776.6485 kswartz@cityofpalmdesert.org From: Kathleen Kelly <kkelly@cityofpalmdesert.org> Sent: Friday, April 8, 2022 7:04 AM To: Robert Hargreaves <Robert.Hargreaves@bbklaw.com>; Kevin Swartz <kswartz@cityofpalmdesert.org> Subject: Latest Pacaso Report From Ellen Kane: Looks like Picasso bought the house at the corner of Somera and Alamo. If you google the address with Picasso after it is on their webpage and is showing as “available now”. Think it just closed escrow because the for sale sign is down. That makes three Picasso’s in my immediate area now (Bel Air, Skyward & Somera). Would really love neighbors not 1/8 ownerships (timeshares?) Page 399 Page 400