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9/6/2017 - STAFF REPORTS - 5.D.
Q p L M S,6 iy v in 4 09ATF0 T cg41FoaO�P City Council Staff Report DATE: September 6, 2017 CONSENT CALENDAR SUBJECT: REJECT BIDS; APPROVE A COOPERATIVE AGREEMENT BY AND BETWEEN CVAG AND CITY OF PALM SPRINGS; APPROVE A PROFESSIONAL SERVICES AGREEMENT WITH ALTA PLANNING + DESIGN INC.; APPROVE PLANS, SPECIFICATIONS AND ESTIMATE (PS&E) AND AUTHORIZATION TO RE-BID FOR THE TAHQUITZ CREEK LEVEE IMPROVEMENTS, CITY PROJECT NO. 08-26 FROM: David H. Ready, City Manager BY: Engineering Services Department SUMMARY The Engineering Services Department advertised the Tahquitz Creek Levee Improvements, City Project 08-26 (the "Project") in order to proceed with certification of the existing Tahquitz Creek Levee, required by federal regulations to demonstrate adequacy of the levee to protect properties from a 100-year flood. The original Project scope included reconstruction of an existing asphalt concrete pavement bicycle path on top of the existing levee. After receipt of the bids, the Coachella Valley Association of Governments (CVAG) met with City staff to discuss the possibility of the City incorporating the CV Link bike path as part of the Project, given that the approved CV Link alignment extends along the City's levee adjacent to the Tahquitz Creek Golf Course, Demuth Park, and Wastewater Treatment Plant. In this way, in lieu of replacing the asphalt concrete pavement bike path, the City would construct on behalf of CVAG a 14 feet wide joint-use path with decorative concrete pavement in accordance with the CV Link design standards. CVAG has prepared, and its Executive Committee has approved, a cooperative agreement with the City that would provide for re-imbursement to the City of the additional costs to accommodate the revised design, including costs for the re-design of the City's construction drawings by CVAG's consultant for the CV Link, Alta Planning + Design Inc. (Alta). RECOMMENDATION: 1) Reject all bids received on August 18, 2016, for the Tahquitz Creek Levee Certification project, City Project No. 08-26; ITEM NO. i M _ �OQ?A`M Sp9 i� � 4+ u fn R R } BCD �11 R.OP1TfQ g4IFORN�P City Council Staff Report DATE: September 6, 2017 CONSENT CALENDAR SUBJECT: REJECT BIDS; APPROVE A COOPERATIVE AGREEMENT BY AND BETWEEN CVAG AND CITY OF PALM SPRINGS; APPROVE A PROFESSIONAL SERVICES AGREEMENT WITH ALTA PLANNING + DESIGN INC.; APPROVE PLANS, SPECIFICATIONS AND ESTIMATE (PS&E) AND AUTHORIZATION TO RE-BID FOR THE TAHQUITZ CREEK LEVEE IMPROVEMENTS, CITY PROJECT NO. 08-26 FROM: David H. Ready, City Manager BY: Engineering Services Department SUMMARY The Engineering Services Department advertised the Tahquitz Creek Levee Improvements, City Project 08-26 (the "Project") in order to proceed with certification of the existing Tahquitz Creek Levee, required by federal regulations to demonstrate adequacy of the levee to protect properties from a 100-year flood. The original Project scope included reconstruction of an existing asphalt concrete pavement bicycle path on top of the existing levee. After receipt of the bids, the Coachella Valley Association of Governments (CVAG) met with City staff to discuss the possibility of the City incorporating the CV Link bike path as part of the Project, given that the approved CV Link alignment extends along the City's levee adjacent to the Tahquitz Creek Golf Course, Demuth Park, and Wastewater Treatment Plant. In this way, in lieu of replacing the asphalt concrete pavement bike path, the City would construct on behalf of CVAG a 14 feet wide joint-use path with decorative concrete pavement in accordance with the CV Link design standards. CVAG has prepared, and its Executive Committee has approved, a cooperative agreement with the City that would provide for re-imbursement to the City of the additional costs to accommodate the revised design, including costs for the re-design of the City's construction drawings by CVAG's consultant for the CV Link, Alta Planning + Design Inc. (Alta). RECOMMENDATION: 1) Reject all bids received on August 18, 2016, for the Tahquitz Creek Levee Certification project, City Project No. 08-26; ITEM NO. D City Council Staff Report September 6, 2017 -- Page 2 CP. 08-26, Rebid Tahquitz Creek Levee Improvements 2) Approve Agreement No. , a Cooperative Agreement by and between CVAG and the City of Palm Springs for the Tahquitz Creek Levee Reconstruction Project, Bike Path Replacement; 3) In accordance with Section 7.04.020 "Sole source procurement by the city," of the Palm Springs Municipal Code, waive all competitive requirements of Title 7 of the Palm Springs Municipal Code finding that Alta Planning + Design Inc., has demonstrated experience and expertise of providing the required professional civil engineering design services for the Coachella Valley Association of Governments; 4) Approve Agreement No. , a Professional Services Agreement in the amount of $111,500 with Alta Planning + Design Inc., for final plans, specifications, and estimates; to prepare bid documents; and provide construction support for the Tahquitz Creek Levee Improvements, City Project 08-26; 5) Approve the plans, specifications and estimate and authorize staff to advertise and solicit bids for the revised Tahquitz Creek Levee Improvements, City Project No. 08- 26; and 6) Authorize the City Manager to execute all necessary documents. STAFF ANALYSIS: Reiect Bids All six bids received on August 18, 2016, for the original design of the Tahquitz Creek Levee Improvements, City Project 08-26, are to be rejected in order to re-advertise for the revised Tahquitz Creek Levee Improvements project to incorporate construction of the CV Link along the existing alignment of the City's bike path, scheduled to be replaced as part of the Project. CVAG in coordination with City staff worked with the apparent low bidder, Tri-Star Contractors, to obtain a cost estimate for the approximate 4,100 feet length of CV Link extending through the Project site. However, several months had passed and no responses or costs estimates were received from the contractor, and it is recommended that the City re-bid the Project inclusive of the changes to incorporate the CV Link. Casey's June Beetle CVAG will plan and pay for mitigation of impacts to the Casey's June beetle (CJB) survey area associated with the additional impervious surface created by incorporating CV Link design. Based on conversations with the United States Fish and Wildlife Service (USFWS), the Project will have no additional CJB mitigation requirements other than those associated with CV Link design impacts. A CJB Habitat Conservation Plan is being prepared for the CV Link project, which will include the impacts associated with the CV Link modifications to the bike path element of the Tahquitz Levee Improvement plans. Mitigation will be provided through an agreement with the City-owned Tahquitz 02 City Council Staff Report September 6, 2017-- Page 3 CP. 08-26, Rebid Tahquitz Creek Levee Improvements Creek Golf Course to convert certain areas of the golf course to more appropriate CJB habitat. The City will proceed with the Project under the original environmental clearances from USFWS. Cooperative Agreement For the benefit of the City, CVAG and City of Palm Springs will be entering into a Cooperative Agreement to receive funds for any additional costs associated with construction related to CV-Link. CVAG has been allocated funding from the South Coast Air Quality Management District (SCAQMD), under AB 1318 Sentinel Mitigation Fees Fund, for CV Link construction costs. Pursuant to the agreement between CVAG and SCAQMD, AB 1318 funding may be applied to construction of the bike path element of the project, with the City performing as a "Subcontractor' to CVAG. CVAG will pay for the incremental cost of constructing a 14-foot cement path (consistent with CV Link design) instead of replacement of the existing asphalt concrete bicycle path originally included as part of the Project, including additional construction administration costs. This cost will be determined by subtracting the value of the initial contract bid and construction management, inspection & materials testing services accepted by the City for the original scope of the Project from the value of next bid that is accepted by the City for the revised Project. CVAG will also reimburse City for all incremental expenses associated with incorporation of CV Link design and tasks associated with the bidding the project that are not covered under Alta's CV Link engineering contract with CVAG. A summary of reimbursable costs by CVAG is outlined below: a. Next lowest contractor bid received minus $528,000 (original lowest bid). b. Construction management services for construction of CV Link. c. Cost of design services for levee improvements to accommodate CV Link. d. Bid documents and bid support services. e. Mitigation costs for the CJB for the CV Link. f. Any change orders or amendments related to the CV Link. CVAG will not cover costs not associated with CV Link portion of the project. A copy of the CVAG staff report with the cooperative agreement is included as Attachment 1. Professional Services Agreement with Alta Planninq + Design for Design, Bidding, and Construction Support Services CVAG currently has a contract with Alta Planning + Design (Alta), selected under the competitive bid process. The consultant currently is providing design services for the CV Link. Staff recommends entering into a Professional Services Agreement with Alta for preparation of project plans, specifications, and estimates for the revised Tahquitz Creek Levee Improvements project, where services related to the CV Link will be reimbursed by CVAG per the cooperative agreement. Staff has prepared a Professional Services Agreement with Alta Planning + Design Inc., included as Attachment 2, for the revised design of Tahquitz Creek Levee Improvements project which includes preparation of plans, specifications, estimates, - 03 City Council Staff Report September 6, 2017 -- Page 4 CP. 08-26, Rebid Tahquitz Creek Levee Improvements and construction support. The revised project proposes to make improvements and increase the width of the existing bike path in order to integrate it into the regional CV Link network along the 4,100-foot long section on top of the Tahquitz Creek Levee planned for reconstruction. Alta will provide new plans and assume the responsibility of the design and provide the as-built drawings for the project since the City was not able to locate the original designer. Alta understands that the design will need to meet FEMA requirements as outlined in the previously approval for the levee improvements issued by FEMA. CVAG solicited proposals from professional engineering firms to provide services to design the CV-Link that traverses through roadways, communities and existing levees following federal and local assistance guidelines. CVAG awarded the design contract to Alta Planning + Design based on their selection criteria and continues to design the CV- Link for the Coachella Valley region. 7.04.050 "Contracting procedures for professional services" of the City's Municipal Code outlines the normal qualifications based procedures for awarding a contract to a professional consulting firm. The Code also allows for sole source procurement, and in consultation with the City Attorney, staff recommends awarding the Project to Alta Planning + Design, Inc., on the basis of the following facts: 1. CVAG issued a competitive qualifications based solicitation of firms to provide design services for CV-Link which includes trails on levees located within Riverside County, including levees within Palm Springs; 2. CVAG awarded a professional services contract to Alta Planning + Design, Inc., in response to their competitive qualifications based solicitation, to provide professional design services for the CV Link. 3. Alta Planning + Design, Inc., has submitted a scope and fee proposal to the City to provide professional services for the re-design of the Tahquitz Creek Levee Improvement project of which fees are reasonable and some tasks are reimbursable by CVAG. 4. The consultant that designed the original plans cannot be contacted and Alta Planning + Design can assume the responsibilities of the design. 5. Alta Planning + Design, Inc., is ready, willing and able, and represents the most qualified professional consulting firm that is familiar with the requirements of 44 CFR 65.10 as it relates to levee certification, and could complete the certification. On that basis, the City Council is authorized to approve a sole-source selection of Alta Planning + Design, Inc., to enter into its own agreement with the City of Palm Springs similar to CVAG. The construction documents (Plans, Specifications and Estimate) will be completed by Alta and delivered to the City once a contract has been executed between Alta and the City. Staff has reviewed the plans submitted by Alta and is ready to be delivered for final approval. In accordance with Section 7.03.040 of the Procurement and Contracting Code the City Council is required to approve and adopt plans, specifications and working details, and authorize the bid request for all public projects in excess of 04 City Council Staff Report September 6, 2017-- Page 5 CP. 08-26, Rebid Tahquitz Creek Levee Improvements $100,000. Approval of this project will allow staff to proceed with this public project, with an estimated cost of $1,225,000. Background In 2005, the Federal Emergency Management Agency (FEMA) began work to modernize the Flood Insurance Rate Maps (FIRMs) in Riverside County. On August 22, 2005, FEMA's national office issued "Procedure Memorandum 34", Interim Guidance for Studies Including Levees, which requires that all levees on National Flood Insurance Program (NFIP) maps accredited as providing protection from the base (1% annual chance) 100 year flood be certified or re-certified to meet the regulatory requirements found in the Code of Federal Regulations at 44 CFR 65.10. In accordance with Procedure Memorandum 34, any levees not meeting the requirements of 44 CFR 65.10 are to be dis-accredited and the vulnerable areas behind the levees be depicted as flood-prone on the new digital FIRMs created out of FEMA's Map Modernization Program. The federal regulation found at 44 CFR 65.10 require that levees certified by FEMA as providing flood control protection meet or exceed several criteria, such as: • The top of levee must provide 3 feet of freeboard above the base flood elevation, and must provide 4 feet of freeboard above the base flood elevation 100 feet upstream and downstream of any structure (i.e. bridges). • All openings through levee must be provided with closure devices that are structural parts of the system during operation. • Engineering analysis must be submitted to demonstrate that no appreciable erosion of the levee embankment can be expected during the 100-year storm. • Engineering analysis must be submitted to demonstrate that seepage of water into or through the levee foundation and embankment will not jeopardize the embankment or levee stability. • Engineering analysis must be submitted to demonstrate that settlement of the levee will not occur, and that freeboard requirements will be maintained. • Engineering analysis must be submitted to demonstrate that during the 100-year flood, interior drainage (or flooding behind the levee) is accommodated. • The levee must be operated (i.e. closure devices and mechanical systems) in accordance with an Operations Plan meeting FEMA requirements and adopted by an agency participating in the NFIP. • The levee must be maintained in accordance with a Maintenance Plan meeting FEMA requirements and adopted by an agency participating in the NFIP. FEMA's Map Modernization Program has provided a public benefit, by compiling all of the previously separate FIRMs into a comprehensive set of digital FIRMs for all of Riverside County, and include color topographic aerial survey information with the flood insurance data, making it much easier to locate specific properties on a digital FIRM to determine flood zone information. However, as a result of FEMA's Map Modernization Program, and its issuance of Procedure Memorandum 34, all communities in Riverside 0 5 County were required to certify all levees providing flood control protection, otherwise City Council Staff Report September 6, 2017-- Page 6 CP. 08-26, Rebid Tahquitz Creek Levee Improvements those areas behind the levees previously afforded flood control protection by the levee would be shown in a flood zone — requiring purchase of flood insurance as required by law. On May 23, 2006, formal letters were distributed by FEMA to the chief executive officers of all communities in Riverside County, including Palm Springs. In this letter, FEMA listed 5 levee systems providing protection from the 100-year storm depicted on the prior FIRMs, requiring certification per 44 CFR 65.10, which include: • Chino Creek levee • Whitewater River levee • Tahquitz Creek levee • Arenas Canyon levee • Palm Canyon Wash levee In Palm Springs, the City's flood protection systems are maintained by Riverside County Flood Control and Water Conservation District (RCFC). In response to the initial FEMA letter, RCFC and many other public agencies and cities (including Palm Springs), communicated the need for much more time to compile the information requested. As a result, FEMA has allowed all existing levees to be shown on the new digital FIRMs as "Provisionally Accredited Levees", and required communities with those levees to enter into an agreement with FEMA to certify the levees per 44 CFR 65.10 by August 8, 2009. RCFC entered into agreements with FEMA to certify all of the levees it operates and maintains in Riverside County, including the Chino Creek, Whitewater River, Arenas Canyon and Palm Canyon Wash levees. However, as a result of this issue, the City learned that RCFC does not consider the Tahquitz Creek levee located adjacent to Demuth Park and the City's wastewater treatment plant as a levee it owns. This levee was initially constructed many years ago to provide some flood control protection to the sewer plant, and was reconstructed in its present form during construction of the Tahquitz Creek golf course by the City. Upon learning this fact, the City coordinated with FEMA and entered into an agreement to certify the Tahquitz Creek levee. Therefore, it is the City's responsibility to certify the Tahquitz Creek levee in order for the area behind the levee to remain in an area designated as protected from the 100-year storm. Figure 1 shows the area in question. If the City is unable to certify this levee per 44 CFR 65.10, the area shown as Zone X will be re-designated as Zone A subject to flooding. 06 City Council Staff Report September 6, 2017 -- Page 7 CP. 08-26, Rebid Tahquitz Creek Levee Improvements Figure 1 Clh I t a f t ' �64I2i1 Y ibe.E Ay+a'/< ]ONf A"'., 4 yTY"yd .�Y cif r' . - �� M•v r. • -Ji: y� I -� I1ll pI Ur`I5r III Illy I � IIIC IIIyi�I. I, f' - Ic of Y F•� "eVs 6aR-A vnura e CITY CERTIFIED LEVEE SOUTH OF WWTP M AREA TO BE PROTECTED FROM 100-YEAR FLOOD PENDING CERTIFCATION OF TAHQUITZ CREEK LEVEE The scope of the project will provide for the following improvements on approximately 4,100 feet of levee. Performing earthwork necessary to reconstruct the levee to the proposed elevations; providing a fully paved bikeway on top of the levee; resurfacing existing asphalt concrete pavement; and installing new Portland cement concrete pavement per the plans and specifications. The work also includes the removal of 18 trees, replacement of fence and pipe gate, and the installation of soil-cement erosion protection and synthetic erosion control per the plans and specifications. A location map with a 500' influence radius from the project area is provided in Figure 2. 07 City Council Staff Report September 6, 2017-- Page 8 CP. 08-26, Rebid Tahquitz Creek Levee Improvements rt " t tr ' .. a-' a . :. .. ... • .w� b #t 4'# '- q; - c Figure 2 — Location Map (with 500' radius of influence) The project required coordination with FEMA in submitting the Conditional Letter of Map Revision (CLOMR) approved on April 15, 2014. The revised plans and specifications ("contract documents") will be finalized and provided by Alta have been reviewed, approved, and will be ready to advertise for bids. Once finalized, staff will formally solicit construction bids for the Project. With City Council approval, staff will advertise the project in the Desert Sun, submit the Notice Inviting Bids to plan rooms, and provide the bid documents available free of charge to prospective bidders. A copy of the contract documents will be on file with the Engineering Services Department. The specifications identify the following tentative schedule for the re-bid process: Notice Inviting Bids to be posted: September 23, 2017 Deadline for receipt of bids: 3:00 PM, October 26, 2017 Contract awarded by City Council: November 15, 2017 ENVIRONMENTAL IMPACT: Section 21084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act ("CEQA"). The Guidelines are required to include a list of classes of projects which have been determined"not to $ City Council Staff Report September 6, 2017-- Page 9 CP. 08-26, Rebid Tahquitz Creek Levee Improvements have a significant effect on the environment and which are exempt from the provisions of CEQA. In response to that mandate, the Secretary for Resources identified classes of projects that do not have a significant effect on the environment, and are declared to be categorically exempt from the requirement for the preparation of environmental documents. In accordance with Section 15301 "Existing Facilities," Class 1 projects consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities; therefore, the Tahquitz Levee Certification project is considered categorically exempt from CEQA, and a Notice of Exemption has been prepared and filed with the Riverside County Clerk. A copy of the Notice of Exemption is included as Attachment 3. The project is located adjacent to the Casey's June Beetle Critical Habitat area and the City prepared a Summary of Evaluation of Potential Impacts to Critical Habitats and Species for the Tahquitz Creek Levee Certification project. As part of the findings by the environmental consultant, it was concluded that the proposed project would not have an adverse impact on the local plant communities and the Casey's June Beetle. A copy of the letter is provided as Attachment 4. FISCAL IMPACT: Funding is made available through the Drainage Fund (135), Waste Water Treatment Plant (420), and CVAG funding pursuant to the proposed Cooperative Agreement, to complete the Tahquitz Creek Levee Improvements, CP 08-26. The revised construction estimate for the Project is $1 ,225,500. The Project budget and incurred expenditures are identified in Table 1 below. Table 1 Table of Project Costs Amount CVAG Funds $1,000,000 Drainage Funds 135) $618,800 WWTP Funds 420 $250,000 Environmental/Design Services $340,700) Project Administration (through 8/29/17) ($15,000) Project Administration (Estimated) ($5,000) Revised Design Services ($111,500) Construction Inspection ($45,000) Construction Cost (Estimated) ($1,225,500) Contingency 10% ($122,550) Budget Balance $3,550 09 City Council Staff Report September 6, 2017 -- Page 10 CP. 08-26, Rebid Tahquitz Creek Levee Improvements SUBMITTED: Tomas Garcia, P.E. >arcus L. Fuller, MPA, PE, PLS Director of Engineering Services/ Assistant City Manager City Engineer David H. Ready, Es City Manager Attachments: 1. CVAG Agreement 2. Professional Services Agreement (PSA) with Alta 3. Notice of Exemption 4. Memorandum of Environmental Impacts 10 Attachment 1 ITEM 7E Coachella Valley Association of Governmentsr' Transportation Committee August 28,2017 CVA Staff Report Subject: Cooperative agreement for CV Link along Tahquitz Creek Levee Contact: LeGrand Velez, Transportation Program Manager (Ivelez ancvap.org) Recommendation: Authorize the Executive Director to enter into a cooperative agreement with the City of Palm Springs in which CVAG would reimburse the additional costs associated with revising the Tahquitz Creek Levee Reconstruction Project to CV Link design standards. Backaround: The City of Palm Springs is required by the Federal Emergency Management Agency (FEMA) to make improvements to 4,100 feet of Tahquitz Creek Levee between Demuth Park and Gene Autry Trail. The City originally bid the Tahquitz Creek Levee Reconstruction Project(TCLRP) in 2016. At that time, the City proposed to replace the existing asphalt bike path on top of the levee with an improved asphalt path. The CV Link project proposes to make improvements to the existing Tahquitz Creek Bike Path in order to integrate it into the regional CV Link network, including the 4,100-foot long section on top of the Tahquitz Creek Levee that the City is reconstructing. For purposes of prudent planning and responsible use of public funds, CVAG requested that the City revise the TCLRP project to incorporate CV Link design criteria so that when CV Link is constructed, the bike path on top of the Tahquitz Creek levee will not need to be replaced a second time. Instead of a 10-foot-wide asphalt path, a 14-foot-wide cement path is proposed. The timeline to rebid the project will be determined by the City of Palm Springs, but is expected to occur within the next 12 months. The City and CVAG staffs have agreed on a cost sharing formula, in which CVAG would reimburse the City for the additional costs associated with this design modification. This reimbursement arrangement would be established by the execution of the attached cooperative agreement. This cooperative agreement is similar to the one that CVAG entered into with the City of Cathedral City for the bike path that's currently being constructed on the west bank of the Whitewater River Levee between Vista Chino and Ramon Roads. Fiscal Impact: CVAG would pay for costs associated with the Tahquitz Creek Levee Reconstruction Project with previously awarded grant funds from the South Coast Air Quality Management District that are designated for CV Link construction. The cost will not be known until the City rebids the project but is expected to be between $500,000 and $1,000,000. Attachments: Project Location Map CVAG/City of Palm Springs Cooperative Agreement for the TCLRP Y � COOPERATIVE AGREEMENT BY AND BETWEEN CVAG AND CITY OF PALM SPRINGS for Tahquitz Creek Levee Reconstruction Project Bike Path Replacement THIS AGREEMENT is made and entered into this day of 2017, by and between the City of Palm Springs ("City"), and the Coachella Valley Association of Governments ("CVAG"), a California joint powers authority, (each a "Party," and collectively the "Parties," to this agreement,) and is made with reference to the following background facts and circumstances: A. The City plans to reconstruct approximately 4,100 feet of the Tahquitz Creek Levee between Demuth Park and Gene Autry Road, including replacement of an existing paved bike path on top of the levee; B. The CV Link project proposes to make improvements to the existing Tahquitz Creek Bike Path in order to integrate it into the regional CV Link network, including the 4,100-foot long section of bike path on top of the Tahquitz Creek Levee that is planned for reconstruction; D. Design, engineering and environmental review of the proposed CV Link project is not complete, the project has not yet been approved, and construction is not expected to begin until early 2018, or later, if the project is ultimately approved; E. The City has had the Tahquitz Creek Levee Reconstruction project (TCLRP) in development since 2008, pre-dating planning for CV Link. The City would reconstruct the Tahquitz Creek levee and the existing bike path regardless of CV Link, thereby establishing its independent utility. However, for purposes of prudent planning and responsible use of public funds, the City wants to complete this independent project incorporating CV Link design criteria so that if CV Link is constructed the bike path on top of the Tahquitz Creek levee will not need to be replaced a second time. F. The Parties wish to enter into this cooperative agreement whereby the City will expand the bike path element of the planned TCLRP to 14 feet and use cement instead of asphalt, consistent with the proposed CV Link model, to allow the possibility that CVAG might later be able to assume responsibility for the operation and maintenance of the bike path on top of the Tahquitz Creek levee if the CV Link project is subsequently approved for construction; G. CVAG has been allocated funding from the South Coast Air Quality Management District (SCAQMD), under AB 1318 Sentinel Mitigation Fees Fund, for CV Link construction costs. Pursuant to the agreement between CVAG and SCAQMD, AB 1318 funding may be applied to construction of the TCLRP bike path element, with the City performing as a "Subcontractor" to CVAG; 13 H. CVAG will pay for the incremental cost of constructing a 14-foot cement path (consistent with CV Link design) instead of the 10-foot wide asphalt path originally proposed by the City, including additional construction administration costs. This cost will be determined by subtracting the value of the initial contract bid and construction management, inspection & materials testing services accepted by the City for the TCLRP ($528,000 + 39,000 = $567,000) from the value of next bid that is accepted by the City for the TCLRP including the updated bike path design. I. CVAG will also pay for all incremental expenses associated with incorporation of CV Link design into bidding the TCLRP that are not covered under Alta's CV Link engineering contract with CVAG. Additional sheet production and design of levee improvements to accommodate CV Link are budgeted at $20,000. Bid support services are budgeted at an amount not to exceed $10,000. CVAG will also pay for any construction support costs associated with the CV-Link. J. CVAG will plan and pay for mitigation of impacts to the Casey's June Beetle (CJB) survey area associated with the additional impervious surface created by incorporating CV Link design. Based on conversations with the United States Fish and Wildlife Services, the TCLRP will have no additional CJB mitigation requirements other than those associated with CV Link design impacts. A CJB Habitat Conservation Plan is being prepared for the CV Link project, which will include the impacts associated with the CV Link modifications to the bike path element of the TCLRP plans. Mitigation is being provided through an agreement with the City-owned Tahquitz Creek Golf Course to convert certain areas of the golf course to more appropriate CJB habitat; K. The City will cover the costs associated with preparing an application for a Conditional Letter of Map Revision (CLOMR) and associated construction administration services. NOW, THEREFORE, in consideration of the preceding recitals and the mutual covenants hereinafter contained, the Parties mutually agree as follows: 1. Although all decisions concerning engineering and environmental matters shall be at the sole discretion of the City, the final design of the bike path element of the TCLRP shall be subject to review and reasonable approval by CVAG prior to the commencement of any construction. CVAG's review and reasonable approval shall be completed within thirty (30) days of submittal by the City. 2. City may seek bids for the construction of the TCLRP, the bike path specifications for which shall be as consistent as practicable with the proposed CV Link model; provided, however, that other amenities that might be proposed for the CV Link project may not be included in the design of the TCLRP. 3. The City shall contract with the successful bidder for the construction of the TCLRP. CVAG shall reimburse City for costs in the manner provided herein below. Notwithstanding any other provisions herein, CVAG shall not be obligated for any monetary contributions that have not been approved and budgeted for this project. 4. At such time as CVAG's legislative body authorizes CVAG (or its contractor and/or agent) to do so, CVAG shall incorporate the TCLRP bike path element into the CV Link project and thereafter assume responsibility for the operations and 2 14 maintenance of the bike path on top of the Tahquitz Creek Levee. However, the City shall be solely responsible for the operation and maintenance of the Tahquitz Creek Levee bike path until it is accepted by CVAG and incorporated into the CV Link project. MISCELLANEOUS PROVISIONS 5. At such time as funds are authorized and budgeted by CVAG for reimbursement to the City for incremental construction costs associated with the TCLRP bike path element, reimbursement shall be made as follows: The City shall be responsible for initial payment of all covered costs as they are incurred. Following payment of such costs, City shall submit invoices to CVAG requesting reimbursement. Each invoice shall be accompanied by detailed contractor invoices, or other demands for payment addressed to City, and documents evidencing City's payment of the invoices or demands for payment. City shall also submit a Project Completion Report, in a form acceptable to CVAG, with each statement. City shall submit invoices not more often than monthly and not less often than quarterly. 5.1 Upon receipt of an invoice from City, CVAG may request additional documentation or explanation of the costs for which reimbursement is sought. Undisputed reimbursement amounts shall be paid by CVAG to City within thirty (30) days. CVAG will subsequently seek reimbursement from SCAQMD. 5.2 If a post-payment audit or review indicates that CVAG has provided reimbursement to City in an amount in excess of that permitted under this agreement, City shall reimburse CVAG for the excess or ineligible payments within thirty (30) days of notification by CVAG. 5.3 Prior to any final payment to City by CVAG, a final report shall be submitted to CVAG by City containing a record of all payments made for the bike path element of the TCLRP and the source of funds of all such payments, together with a record of all change orders, cost over-runs, and other expenses incurred. Final payment will thereafter be paid by CVAG in accordance with its rules, regulations and policies concerning project cost determination and expense eligibility for the CV Link project. 5.4 The format used for all bids solicited by City for the TCLRP shall require itemization sufficient to allow quantities of each bid item to be easily discernible. If requested by CVAG, it shall be the responsibility of City to determine what, if any, portion of the work is an enhancement to any specifications adopted for the CV Link model, for which there shall be no reimbursement. 5.5. City shall maintain an accounting of all funds received from CVAG pursuant to this agreement in accordance with generally accepted accounting principles. City agrees to keep all contracts and records for a period of not less than three years from the date a notice of completion is recorded by the City for the TCLRP; or, if the TCLRP is not the type of project for which a notice of completion would normally be recorded, for three years from the date of completion. The City may keep the records in either electronic or hard copy format. City shall permit CVAG, at any reasonable time, upon reasonable notice, to inspect any records maintained in connection with the TCLRP. CVAG shall have no duty to make any such inspection and shall not incur any liability or obligation by reason of making or not making any such inspection. 3 15 5.6 City shall allow CVAG access to and use of all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of the planning, approval and construction of the bike path element of the TCLRP. Any copies of said originals obtained by CVAG may be used, reused, or otherwise disposed of by CVAG without the permission of City. 5.7 The Parties agree that announcements, news releases and other communication materials describing the project shall acknowledge 'The project was made possible by a grant from the South Coast Air Quality Management District AB 1318 Mitigation Fees Fund to reduce or mitigate emissions within Coachella Valley." 5.8 The following acknowledgment of support and disclaimer must appear in each publication of materials,whether copyrighted or not, based upon or developed under this agreement. This Agreement was prepared as a result of work paid for, in whole or in part, by a grant from the South Coast Air Quality Management District (SCAQMD). The opinions, findings, conclusions, and recommendations are those of the author and do not necessarily represent the views of SCAQMD. SCAQMD, its officers, employees, contractors, and subcontractors make no warranty, expressed or implied, and assume no legal liability for the information in this report. SCAQMD has not approved or disapproved this report, nor has SCAQMD passed upon the accuracy or adequacy of the information contained herein." 6. The occurrence of any one or more of the following events shall, at the non-defaulting Party's option, constitute an Event of Default and the defaulting Party shall provide the other Party with immediate notice thereof. 6.1 Any warranty, representation, statement, report or certificate made or delivered to the other Party or any of its officers, employees or agents, now or hereafter, which is incorrect, false, untrue or misleading in any material respect; 6.2 A Party shall fail to pay, perform or comply with, or otherwise shall breach, any obligation, warranty, term or condition in this agreement or any amendment to this agreement, or any agreement delivered in connection with the TCLRP; or, 6.3 There shall occur any of the following: dissolution, termination of existence or insolvency of a Party; the commencement of any proceeding under any bankruptcy or insolvency law by or against a Party; entry of a court order which enjoins, restrains or in any way prevents a Party from paying sums owed to creditors. 7. No waiver of any Event of Default or breach by one Party hereunder shall be implied from any omission by any other Party to take action on account of such default, and no express waiver shall affect any default other than the default specified in the waiver and the waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by one Party to or of any act by any other Party shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent or similar act. 4 I6 8. This agreement is made and entered into for the sole protection and benefit of the City and CVAG, and no third person shall have any right of action under this agreement. 9. This agreement is for funding purposes only and nothing herein shall be construed so as to constitute CVAG as a party to the construction or in ownership or a partner or joint venturer with City as to the TCLRP. The City shall assume the defense of, indemnify and hold harmless, CVAG, its member agencies, and their respective officers, directors, agents, employees, servants, attorneys, and volunteers, and each and every one of them, from and against all actions, damages, claims, losses and expenses of every type and description to which they may be subjected or put by reason of or resulting from the actions or inactions of the City related to the TCLRP or taken in the performance of this agreement or any agreement entered into by City with reference to the TCLRP. CVAG shall assume the defense of, indemnify and hold harmless the City, its officers, directors, agents, employees, servants, attorneys, and volunteers, and each of them, from and against all actions, damages, claims, losses, and expenses of every type and description to which they may be subjected or put by reason of or resulting from (a) the actions of CVAG taken in the performance of this agreement or (b) litigation concerning compliance with environmental laws specific to CV Link and not associated with the TCLRP prior to any subsequent incorporation into the CV Link project. 10. City agrees to include in its contract specifications and bid documents a requirement that all prime contractors shall name CVAG and its member agencies as "also insured" on all liability insurance coverage required by City on each contract. City will provide a copy of the Insurance Certificate to CVAG, depicting CVAG and its member agencies as "also insureds," within 30 days of signing a contract with the prime contractor. 11. City agrees that any agreements between the City and third parties relating to the project, including right of way agreements with the Riverside Flood Control and Water Conservation District, include provisions allowing them to be transferred to CVAG. City agrees that such transfers will occur at CVAG's discretion. 12. Any dispute concerning a question of fact arising under this agreement that is not disposed of by voluntary negotiations between the Parties shall first be decided by the CVAG Executive Director or designee, who may consider any written or verbal evidence submitted by the Parties. This decision shall be issued in writing. However, no action in accordance with this Section shall in any way limit any Party's rights and remedies through actions in a court of law with appropriate jurisdiction. Neither the pendency of dispute nor its consideration by CVAG will excuse the City from full and timely performance in accordance with the terms of this agreement. 13. The City and CVAG mutually warrant that all aspects of the TCLRP shall be undertaken in compliance with all applicable local, state and federal rules, regulations and laws. The Parties will execute and deliver to each other such further documents and do other acts and things as are reasonably requested in order to comply fully with all applicable requirements and to effect fully the purposes of this agreement. 14. This agreement may not be assigned by either Party without the express written consent of the other Party. 5 � � 15. The Parties and their successors in interest and assigns shall be bound by all the provisions contained in this agreement. 16. No officer or employee of either Party shall be personally liable to the other Party, or any successor in interest, in the event of any default or breach by either Party or for any amount which may become due to either Party or to its successors, or for breach of any obligation of the terms of this agreement. 17. Notwithstanding any other provision herein, CVAG shall not be liable for payment or reimbursement of any sums for which CVAG has not first obtained the necessary and appropriate funding. 18. No officer or employee of either Party shall have any personal interest, direct or indirect, in this agreement; nor shall any such officer or employee participate in any decision relating to this agreement which effects his or her personal interest or the interest of any corporation, partnership or association in which she or he is, directly or indirectly, interested, in violation of any state, federal or local law. 19. City warrants that the funds received by City pursuant to this agreement shall only be used in a manner consistent with CVAG's reimbursement policy and all applicable regulations and laws. Any provision required to be included in this type of agreement by federal or state law shall be deemed to be incorporated into this agreement. 20. All notices or other communications required or permitted hereunder shall be in writing and shall be either personally delivered (which shall include delivery by means of professional overnight courier service which confirms receipt in writing, such as Federal Express or UPS); sent by telecopier or facsimile machine capable of confirming transmission and receipt; or sent by certified or registered mail, return receipt requested, postage prepaid to the following parties at the following addresses or numbers: If to CVAG: Tom Kirk, Executive Director Coachella Valley Association of Governments 73-710 Fred Waring Drive Palm Desert, CA 92260 Telephone: (760) 346-1127 FAX No.: (760) 340-5949 If to CITY: David Ready, City Manager City of Palm Springs 3200 East Tahqutiz Canyon Way Palm Springs, CA 92262 Telephone: (760) 323-8299 FAX No.: (760) 323-8207 Notices sent in accordance with this paragraph shall be deemed delivered upon the next business day following the: (i) date of delivery as indicated on the written confirmation of delivery (if sent by overnight courier service); (ii) the date of actual receipt (if personally delivered by other means); (iii) date of transmission (if sent by telecopier or facsimile 6 18 machine); or (iv) the date of delivery as indicated on the return receipt if sent by certified or registered mail, return receipt requested. Notice of change of address shall be given by written notice in the manner detailed in this paragraph. 21. This agreement sets out the entire agreement between the Parties, and is intended by the Parties to completely state the agreement in full. Any agreement or representation respecting the matter dealt with herein or the duties of any Party in relation thereto, not expressly set forth in this agreement, is null and void. 22. If any term, provision, condition, or covenant of this agreement, or the application thereof to any Party or circumstance, shall to any extent be held invalid or unenforceable, the remainder of the instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this agreement shall be valid and enforceable to the fullest extent permitted by law. 23. In the event any Party hereto brings an action or proceeding for a declaration of the rights of the Parties, for injunctive relief, for an alleged breach or default, or any other action arising out of this agreement, or the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and costs incurred in such action or proceeding, in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment. 24. Time is of the essence in this agreement, and each and every provision hereof in which time is an element. 25. This agreement and all documents provided for herein shall be governed by and construed in accordance with the laws of the State of California. Any litigation arising from this agreement shall be adjudicated in the courts of Riverside County, Desert Judicial District, and State of California. 26. Each Party warrants that the execution, delivery and performance of this agreement and any and all related documents are duly authorized and do not require the further consent or approval of any body, board or commission or other authority. 27. This agreement may be executed in one or more counterparts and when a counterpart shall have been signed by each Party hereto, each shall be deemed an original, but all of which constitute one and the same instrument. 7 , (� IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be executed by their duly authorized representatives on this date: ATTEST: CITY OF PALM SPRINGS By: By: David Ready, City Manager Robert Moon, Mayor CVAG By: Tom Kirk, Executive Director 8 20 iH �.rrI rar raT a n vars.. SEE SHEET C-2E M YA J SEE SHEET C-90 ° uusMSn sraA Ve._ !_. nraH'+ecaix iar"TomT"•"r< SEE SHEET C-M TYPICAL ASPHALTIC COLRtf HWDADIT SECRIN SEE SHEET C-20R SEE SHEET C-207 SEE SHEET C-206 SEE SHEET C-20S SEE SHEET C-204 �. SEE SHEET C-203 PROPOSED IK.ENAY ALONG LEVEE SEE YIEC' C-202 i!• SEE SHEET CS] Jti m' N IST 10 FEATURE PROO cRuwK SCAIE PRMOSEO fEdOR[ Yr..EHaawwr(NL NU IaJ�1Py9.r�•lEM M� r ow nHa KwAR oRrm A°` .'SON vY m etro"AM ry TAHQUITI CREEK rror<r Va 9rr a r .snres .0ag 66, .n°n5 . .:�, �••Ay LEVEE IMPROVEMENTS ql K ..- .:s. :...��NNrm.stir:'.. '''' SITE KEY PLAN Wet 4 IT N Attachment 2 22 PROFESSIONAL SERVICES AGREEMENT ALTA PLANNING+DESIGN,INC. TAHQUITZ CREEK LEVEE IMPROVEMENTS (CP 08-26) THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement") is entered into, and effective on 201 , between the CITY OF PALM SPRINGS, a California charter city and municipal corporation, ("City") and ALTA PLANNING + DESIGN, INC., a CALIFORNIA CORPORATION ("Consultant"). City and Consultant are individually referred to as "Party" and are collectively referred to as the "Parties". RECITALS A. City has determined that there is a need for professional engineering services for the administration, design, and constructin support services for the Tahquitz Creek Improvement, City Project No. 08-26 ("Project"). B. Consultant has submitted to City a proposal to provide administration, design, bid support, and construction support services to City for the Project under the terms of this Agreement. C. Consultant is qualified by virtue of its experience, training, education, reputation, and expertise to provide these services and has agreed to provide such services as provided in this Agreement. D. City desires to retain Consultant to provide such professional services. In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: AGREEMENT 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant agrees to perform the professional services set forth in the Scope of Services described in Exhibit "A" (the "Services" or "Work") , which is attached and incorporated by reference. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that Consultant is a provider of first class work and professional services and that Consultant is experienced in performing the Work and Services contemplated and, in light of such status and experience, Consultant covenants that it shall follow the highest professional standards in performing the Work and Services required in this Agreement. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized as high quality among well-qualified and experienced professionals performing similar work under similar circumstances. I Revised:4127/17 720669.1 23 1.2 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (3) the City's Request for Proposals; and, (4) the Consultant's signed, original proposal submitted to the City ("Consultant's Proposal"), (collectively referred to as the "Contract Documents"). The City's Request for Proposals and the Consultant's Proposal, which are both attached as Exhibits "B" and "C", respectively, are incorporated by reference and are made a part of this Agreement. The Scope of Services shall include the Consultant's Proposal. All provisions of the Scope of Services, the City's Request for Proposals and the Consultant's Proposal shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority: (1")the provisions of the Scope of Services (Exhibit "A"); (2nd) the provisions of the City's Request for Proposal (Exhibit `B"); (3rd) the terms of this Agreement; and, (0) the provisions of the Consultant's Proposal (Exhibit :'C>, 1.3 Compliance with Law. Consultant warrants that all Services rendered shall be performed in accordance with all applicable federal, state, and local laws, statutes, ordinances lawful orders, rules, and regulations. 1.4 Licenses, Permits, Fees, and Assessments. Consultant represents and warrants to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the Work and Services required by this Agreement. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, qualification, or approval that is legally required for Consultant to perform the Work and Services under this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work and Services required by this Agreement. Consultant shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City to the fullest extent permitted by law. 1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of the Services, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City. 1.6 Care of Work. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to the Work and the equipment, materials, papers, documents, plans, studies, and/or other components to prevent losses or damages. Consultant 2 Revised:4127/17 720669.1 24 shall be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. 1.8 Additional Services. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from such Work. No such extra work may be undertaken unless a written order is first given by the City to the Consultant, incorporating any adjustment in (i) the Maximum Contract Amount, as defined below, and/or (ii) the time to perform this Agreement. Any adjustments must also be approved in writing by the Consultant. Any increase in compensation of up to twenty-five percent (25%) of the Maximum Contract Amount or $25,000, whichever is less, or in the time to perform of up to thirty (30) days, may be approved by the City Manager, or his designee, as may be needed to perform any extra work. Any greater increases, occurring either separately or cumulatively, must be approved by the Palm Springs City Council. It is expressly understood by Consultant that the provisions of this section shall not apply to the services specifically set forth or reasonably contemplated within the Scope of Services. 2. COMPENSATION 2.1 Maximum Contract Amount. For the Services rendered under this Agreement, Consultant shall be compensated by City in accordance with the Schedule of Compensation, which is attached as Exhibit "D" and incorporated in this Agreement by reference. Compensation shall not exceed the maximum contract amount of One Hundred Eleven Thousand and Five Hundred Dollars, ($111,500) ("Maximum Contract Amount"), except as may be provided under Section 1.8. The method of compensation shall be as set forth in Exhibit "D." Compensation for necessary expenditures for reproduction costs, telephone expenses, and transportation expenses must be approved in advance by the Contract Officer designated under Section 4.2 and will only be approved if such expenses are also specified in the Schedule of Compensation. The Maximum Contract Amount shall include the attendance of Consultant at all Project meetings reasonably deemed necessary by the City. Consultant shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Consultant accepts the risk that the services identified in the Scope of Services may be more costly and/or time- consuming than Consultant anticipates, that Consultant shall not be entitled to additional compensation, and that the provisions of Section 1.8 shall not be applicable to the services identified in the Scope of Services. The maximum amount of city's payment obligation under this section is the amount specified in this Agreement. If the City's maximum payment obligation is reached before the Consultant's Services under this Agreement are completed, Consultant shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount. 3 Revised:4/27/17 25 720669.1 - 2.2. Method of Payment. Unless another method of payment is specified in the Schedule of Compensation (Exhibit "D"), in any month in which Consultant wishes to receive payment, Consultant shall submit to the City an invoice for services rendered prior to the date of the invoice. The invoice shall be in a form approved by the City's Finance Director and must be submitted no later than the tenth (10) working day of such month. Such requests shall be based upon the amount and value of the services performed by Consultant and accompanied by such reporting data including an itemized breakdown of all costs incurred and tasks performed during the period covered by the invoice, as may be required by the City. City shall use reasonable efforts to make payments to Consultant within forty-five (45) days after receipt of the invoice or as soon as is reasonably practical. There shall be a maximum of one payment per month. 2.3 Changes in Scope. In the event any change or changes in the Scope of Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated by the City Council for each fiscal year covered by the Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the City. 3. SCHEDULE OF PERFORMANCE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The time for completion of the services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the Work of this Agreement according to the agreed upon attached Schedule of Performance (Exhibit "E"), incorporated by reference. 3.2 Schedule of Performance. Consultant shall commence the Services under this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Schedule of Performance. When requested by Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, but such extensions shall not exceed one hundred eighty (180) days cumulatively; however, the City shall not be obligated to grant such an extension. 3.3 Force Maieure. The time period(s) specified in the Schedule of Performance for performance of the Services rendered under this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant (financial inability excepted) if Consultant, within ten (10) days of the commencement of such delay, notifies the Contract Officer in writing of the causes of the delay. 4 Revised:4/27/17 720669.1 - 26 Unforeseeable causes include, but are not limited to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, and/or acts of any govemmental agency, including the City. The City Manager shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the City Manager such delay is justified. The City Manager's determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of the Agreement under this section. 3.4 Term. Unless earlier terminated under this Agreement, this Agreement shall commence upon the effective date of this Agreement and continue in full force and effect until completion of the Services. However, the term shall not exceed three (3) years from the commencement date, except as otherwise provided in the Schedule of Performance described in Section 3.2 above. Any extension must be through mutual written agreement of the Parties. 3.5 Termination Prior to Expiration of Term. City may terminate this Agreement for its convenience at any time, without cause, in whole or in part, upon giving Consultant thirty (30) days written notice. Where termination is due to the fault of Consultant and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon such notice, City shall pay Consultant for Services performed through the date of termination. Upon receipt of such notice, Consultant shall immediately cease all work under this Agreement, unless stated otherwise in the notice or by written authorization of the Contract Officer. After such notice, Consultant shall have no further claims against the City under this Agreement. Upon termination of the Agreement under this section, Consultant shall submit to the City an invoice for work and services performed prior to the date of termination. Consultant may terminate this Agreement, with or without cause, upon sixty(60) days written notice to the City, except that where termination is due to material default by the City, the period of notice may be such shorter time as the Consultant may determine. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following principal of Consultant is designated as being the principal and representative of Consultant authorized to act in its behalf and make all decisions with respect to the Services to be performed under this Agreement: Mike Rose, Vice President. It is expressly understood that the experience, knowledge, education, capability, expertise, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services performed hereunder. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer. 4.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Consultant shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the services. Consultant shall refer any 5 Revised: 4127117 27 720669.1 decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignments. The experience, knowledge, capability, expertise, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Therefore, Consultant shall not assign full or partial performance of this Agreement, nor any monies due, voluntarily or by operation of law, without the prior written consent of City. Consultant shall not contract with any other entity to perform the Services required under this Agreement without the prior written consent of City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the Work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City. Transfers restricted in this Agreement shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant from any liability under this Agreement without the express written consent of City. 4.4 Independent Contractor. The legal relationship between the Parties is that of an independent contractor, and nothing shall be deemed to make Consultant a City employee. A. During the performance of this Agreement, Consultant and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, employees, or agents, except as set forth in this Agreement. Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City's offices. City shall have no voice in the selection, discharge, supervision, or control of Consultant's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers' compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of Consultant in its business or otherwise a joint venturer or a member of any joint enterprise with Consultant. B. Consultant shall not have any authority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City. 6 Revised:4/27/17 720669.1 28 C. No City benefits shall be available to Consultant, its officers, employees, or agents in connection with any performance under this Agreement. Except for professional fees paid to Consultant as provided for in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness arising out of performing Services. If for any reason any court or governmental agency determines that the City has financial obligations, other than under Section 2 and Subsection 1.8 in this Agreement, of any nature relating to salary, taxes, or benefits of Consultant's officers, employees, servants, representatives, subcontractors, or agents, Consultant shall indemnify City for all such financial obligations. 5. INSURANCE 5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Consultant's performance of Work under this Agreement, including Consultant's agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for professional liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows: A. Errors and Omissions Insurance. Consultant shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form professional liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and two-million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section. (1) Consultant shall either: (a) certify in writing to the City that Consultant is unaware of any professional liability claims made against Consultant and is unaware of any facts which may lead to such a claim against Consultant; or (b) if Consultant does not provide the certification under (a), Consultant shall procure from the professional liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services under this Agreement. (2) If the policy of insurance is written on a "claims made" basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Consultant shall obtain Revised: 4127/17 720669.1 continuing insurance coverage for the prior acts or omissions of Consultant during the course of performing Services under the terms of this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended "tail" coverage with the present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager. (3) In the event the policy of insurance is written on an "occurrence" basis, the policy shall be continued in full force and effect during the term of this Agreement, or until completion of the Services provided for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement. B. Workers' Compensation Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers' compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Consultant agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. If Consultant has no employees, Consultant shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. C. Commercial General Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. D. Business Automobile Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non-owned, leased, and hired cars. E. Employer Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 5.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. Consultant guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self- 8 Revised:4/27/17 720669.1 3 0 insured retentions in excess of$10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of Consultant's ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of$10,000. 5.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Consultant under this Agreement: 5.3.1 For any claims related to this Agreement, Consultant's coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Consultant's insurance and shall not contribute with it. 5.3.2 Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. 5.3.3 All insurance coverage and limits provided by Consultant and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. 5.3.4 No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement(e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. 5.3.5 Consultant agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the Project. It is Consultant's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. 5.3.6 Consultant agrees to ensure that subcontractors, and any other parties involved with the Project who are brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage 9 Revised:4/27/17 720669.1 31 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 subcontractors and others engaged in the Project will be submitted to the City for review. 5.3.7 Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard. 5.3.8 Consultant shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten(10) days prior to expiration of the lapsing coverage. 5.3.9 Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. 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 limiting or all-inclusive. 5.3.10 The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. 5.3.11 Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the Work performed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. 5.3.12 Consultant agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages resulting from the Consultant's activities or the activities of any person or person for which the Consultant is otherwise responsible. 5.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided 10 Revised:4/27117 r, 720669.1 G by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. 5.5 Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or(2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: 1. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured... " ("as respects City of Palm Springs Contract No. " or 'for any and all work performed with the City"may be included in this statement). 2. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No._" or 'for any and all work performed with the City" may be included in this statement). 3. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant's obligation to provide them. 11 Revised:4/27/17 33 720669.1 6. INDEMNIFICATION 6.1 Indemnification and Reimbursement. To the fullest extent permitted by law, Consultant shall defend (at Consultant's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (Consultant's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Consultant, its officers, employees, representatives, and agents, that arise out of or relate to Consultant's performance under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Consultant's indemnification obligation or other liability under this Agreement. Consultant's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. 6.2 Design Professional Services Indemnification and Reimbursement. If the Agreement is determined to be a "design professional services agreement" and Consultant is a "design professional"under California Civil Code Section 2782.8, then: A. To the fullest extent permitted by law, Consultant shall indemnify, defend (at Consultant's sole cost and expense), protect and hold harmless City and its elected officials, officers, employees, agents and volunteers and all other public agencies whose approval of the project is required, (individually`Indemnified Party"; collectively"Indemnified Parties") against any and all liabilities, claims,judgments, arbitration awards, settlements, costs, demands, orders and penalties (collectively "Claims"), including but not limited to Claims arising from injuries or death of persons (Consultant's employees included) and damage to property, which Claims arise out of, pertain to, or are related to the negligence, recklessness or willful misconduct of Consultant, its agents, employees, or subcontractors, or arise from Consultant's negligent, reckless or willful performance of or failure to perform any term, provision, covenant or condition of this Agreement ("Indemnified Claims"), but Consultant's liability for Indemnified Claims shall be reduced to the extent such Claims arise from the negligence, recklessness or willful misconduct of the City and its elected officials, officers, employees, agents and volunteers. B. The Consultant shall require all non-design-professional sub-contractors, used or sub-contracted by Consultant to perform the Services or Work required under this Agreement, to execute an Indemnification Agreement adopting the indemnity provisions in sub- section 6.1 in favor of the Indemnified Parties. In addition, Consultant shall require all non- design-professional sub-contractors, used or sub-contracted by Consultant to perform the Services or Work required under this Agreement, to obtain insurance that is consistent with the 12 Revised:4/27/17 720669.1 34 Insurance provisions as set forth in this Agreement, as well as any other insurance that may be required by Contract Officer. 7. REPORTS AND RECORDS 7.1 Accounting Records. Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require. Consultant acknowledges that the City is greatly concerned about the cost of the Work and Services to be performed under this Agreement. For this reason, Consultant agrees that Consultant shall promptly notify the Contract Officer the estimated increased or decreased cost if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the contemplated Work or Services. If Consultant is providing design services, Consultant shall promptly notify the Contract Officer the estimated increased or decreased cost for the project being designed if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services. 7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and the City shall indemnify the Consultant for all resulting damages. Consultant may retain copies of such documents for their own use. Consultant shall have an unrestricted right to use the concepts embodied tin this Agreement. Consultant shall ensure that all its subcontractors shall provide for assignment to City of any documents or materials prepared by them. In the event Consultant fails to secure such assignment, Consultant shall indemnify City for all resulting damages. 7.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gained by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. 13 Revised:4/27/17 720669.1 35 7.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Consultant shall provide City, or other agents of City, such access to Consultant's books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Consultant's performance under this Agreement. Consultant shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Default of Consultant. Consultant's failure to comply with any provision of this Agreement shall constitute a default. A. If the City Manager, or his designee, determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Consultant in writing of such default. Consultant shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Consultant fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City's right to terminate this Agreement without cause under Section 3.5. B. If termination is due to the failure of the Consultant to fulfill its 14 Revised:4/27117 720669.1 36 obligations under this Agreement, City may, after compliance with the provisions of Section 8.3A, take over the work and prosecute the same to completion by contract or otherwise. The Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasonable efforts to mitigate such damages). The City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Consultant shall not limit Consultant's liability for completion of the Services as provided in this Agreement. 8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions. 8.5 Rights and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non-judicial proceeding within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding. 15 Revised:4127/17 720669.1 37 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Consultant shall otherwise fully comply with the provisions of Palm Springs Municipal Code Section 7.09.040 relating to non-discrimination in city contracting. 10. MISCELLANEOUS PROVISIONS 10.1 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Consultant against patent or copyright infringement, statutory or otherwise: A. It is agreed that Consultant shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Consultant shall pay all costs and damages finally awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the suit or claim and given authority, information and assistance at Consultant's expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant. However, Consultant will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City's alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by Consultant when it is such use in combination which infringes upon an existing U.S. letters patent or copyright. 16 Revised: 4127117 720669.1 38 B. Consultant shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Consultant's expense. Consultant shall not be obligated to indemnify City under any settlement that is made without Consultant's consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of the suit or claim, Consultant, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto. 10.2 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing. All notices shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of(i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or(iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: To Cit City of Palm Springs Attention: City Manager&City Clerk 3200 E. Tahquitz Canyon Way Palm springs, California 92262 Telephone: (760) 323-8204 Facsimile: (760) 323-8332 To Consultant: Alta Planning+Design, Inc 711 SE Grand Ave. Portland, OR 97214 Attention: Mike Rose Telephone: (503) 230-9862 10.3 Integrated Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 10.4 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 10.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision 17 Revised:4/27/17 720bb9.1 39 of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. 10.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement. 10.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. 18 Revised:4/27/17 720669.1 40 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. "CITY" City of Palm Springs Date: By: David H. Ready, PhD City Manager APPROVED AS TO FORM: ATTEST By: By: Edward Z. Kotkin Kathleen D. Hart, MMC City Attorney Interim City Clerk APPROVED BY CITY COUNCIL: Date: Agreement No. Corporations require two notarized signatures. One signature must be from Chairman of Board,President,or any Vice President. The second signature must be from the Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer. CONSULTANT NAME: Alta Planning+Design, Inc. Check one_Individual_Partnership_Corporation Address By By Signature(Notarized) Signature(Notarized) 19 Revised:4/27/17 720669A 41 CALIFIMIA JL4FMM+OSE ACKNOWLEDGMEW CPAL CODE§t 789 A romq public or adw dim co no"dra cerd9rat9 verity orgy the idemigy of to sykadmil who mWwd the dDuffnoE w while*a owifficate s dadie�d,and not to nuftillness,aodemM a va ft of dw doanaan[- 8fste of Cekkimis County of } On before me, ado Here kmwt Aha and T&a of ttrs Officer personally sppeared oft who proved to me on the betels of sabolattory evidence to be the persun(o whose name(s) is/me to the wtttrn iiatnament mid sclummiedged to me Bud hafahmAhey ex9outed the some kn m t oriaed capecty(m) and ttsd by twafhmAtmi signahrre(a)on the instnanent the parman(s), or the enirty upon betdf of which the peraai(sj soleKk executed ibis instru merL I omity under PENALTY OF PERJURY under the laws of the Stale of CaVernia tud the tnregang parson"A is two mid correct iMfiWW rry timid mid cffkwg aed- aMstma of AbWy Putiim Pbw Nafty Seed Abam OP7x3 AL Though this section is cipbun&4 ownple g this wdbr"w w can debar aRaombiwr of the document or of Hm form to mr unintended doaammit Deacripbon of Aifarlmd Tolle or Type of Document: Ekxwmmmt Data: Number of Pages: Other Then Nmned Abova- 'CapsyGs*asirnigel by SlgMFOQ Signer's Norma S grim'a Norm: ❑OMParale Ofter—TMOK ❑CarPoni Otfi —Too(MY ❑Partner— ❑Lsnitsd ❑General ❑Partner— ❑United ❑General ❑lndlinduai ❑AStomeyr in Fat ❑Individual ❑Attorney m Fact ❑Tnmlee ❑Guardian or Carmmvstor ❑Trudge ❑Onardimn or Caraavator ❑Other ❑OBmr to Representing:: Wirer le Reprecerting: 6M#Nabond tidmy Assoombm•www ag•t4FlfltJB NDTAtTf o-W"76- 7) Aam#M7 720669.1 4 2 EXHIBIT "A" SCOPE OF SERVICES SEE EXHIBIT "C", CONSULTANTSPROPOSAL 720669.1 43 EXHIBIT "B" CITY'S REQUEST FOR PROPOSALS SEE EXHIBIT "C" CONSULTANT'S PROPOSAL 720669.1 44 EXHIBIT "C" CONSULTANT'S PROPOSAL FOLLOWS THIS PAGE 45 720669.1 .. .. Tahquitz Creek Path Engineering August, 2017 TO Savat Khamphou-Palm Springs DATE August 22, 2017 FROM Deven Young-Alta, Mike Rose-Alta PROJECT CV Link Engineering CVL-201S-0309 Bid Package In order to provide a package of construction documents for CV Link along Tahquitz Creek in the City of Palm Springs, Alta proposes the services listed below. A summary of costs are listed for each task. 1. Production of Bid Package: Reference City of Palm Springs general sheet notes and specifications for a City specific bid package. Generate a stand-alone bid package complete with cover sheet, project site map, drawing index, titleblock, City construction details, and engineer's estimate. Cost: $7,500 2. Design of Levee Improvements: Levee improvements required for the Corps levee certification process. All details and specifications associated with these improvements. Cost: $12,500 Total Fee: $20,000 Letter of Map Revision Alta in partnership with Stantec engineering will complete the Letter of Map Revision for Tahquitz Creek. This proposal is based on the approved Conditional Letter of Map Revision (CLOMR) that was prepared by Nolte Associates, Inc., dated May 2012, and the proposed Tahquitz Creek Levee Improvement Plans for the City of Palm Springs Public Works and Engineering Department Project No.08-26 prepared by AMEC Earth and Environmental, Inc. The purpose of the proposed levee improvements is to bring the levee into compliance with Title 44 CFR 65.10, and to accredit the levee to provide protection from the 1% annual storm event. A summary of tasks are listed below: 1. Review of Conditional Letter of Map Revision (CLOMR): This task provides for the review of the previously prepared and approved CLOMR for consistency with the completed improvements. This task also provides for review of the previously prepared hydraulic model in the CLOMR document for the computed 100-year Water Service Elevation (WSE) compared to the completed top of levee elevations. 46 .. Tahquitz Creek Path Engineering 3 August, 2017 2. Letter of Map Revision (LOMR): This task provides for the presentation of the LOMR application. The application will include T-2 forms, as-built information, the effective Flood Insurance Rate Map (FIRM), and an annotated FIRM. 3. LOMR Application Process: This task will provide for the processing of the LOMR application with the City for their concurrence, and the subsequent processing of the LOMR application with FEMA. Total Fee: $26.500 Bid Support Costs associated with attending a pre-bid meeting, coordinating with the City on any additional requests for information (RFI's), addendums, or meetings required during the bid process. Response to bidders questions and supply of any digital files requested by the bidding contractors. All costs associated with this task will be on a time and materials basis and are associated with a not-to-exceed amount. Total Fee: $10,000 Construction Administration / Observation Costs associated with construction administration support to the City of Palm Springs for the duration of construction of CV Link along the Tahquitz Creek Levee. 1. Project Administration: The Alta project manager will maintain the project schedule, provide monthly progress reports, organize and lead project meetings as well as provide meeting minutes. 2. Construction Administration / Observation: The Alta team will remain available to City to answer technical questions related to the design documents during construction phase of the project. Specifically, Alta will provide the following construction administration services: o Respond to contractors questions via phone or e-mail during the construction period. o Attend up to twenty (20) in-person construction meetings with the selected contractor to assist with construction questions based on final construction documents or field conditions. Alta will follow up each meeting with a set of meeting minutes with clear direction and responsible party on follow-up tasks. o Assist the City with issuance of change orders; review RFI's, submittal reviews and clarification requests. 47 Tahquitz Creek Path Engineering August, 2017 o Review contractor prepared as-built drawings in electronic, AutoCAD format prior to approval by City. All services will be billed based on time and materials with a not-to-exceed amount for services rendered. Services will be itemized on the invoice to designate Construction Administration/Observation services rendered for the pathway construction and services rendered for the levee improvements. Client responsibilities: Schedule construction meetings and provide meeting space if in-field visits will not work for the team. Total Fee: $55,000 Fee Summary for Services Bid Package $20,000 Letter of Map Revision $26,500 Bid Support $10,000 Construction Administration / Observation $55,000 Total $111,500 48 EXHIBIT "D" SCHEDULE OF COMPENSATION TASK COST Design of Levee Improvements $129500 Production of Bid Package $79500 Bid Support $109000 Letter of Map Revision (LOMR) $26,500 Construction Administration and Observation* $55,000 Total $1119500 *Costs for this task will be on an As-Needed basis and will be itemized in the invoice based upon sub-tasks and hours. 49 720669.1 EXHIBIT "E" SCHEDULE OF PERFORMANCE Consultant will provide services concurrent with construction schedule, project close-out or when final approval from FEMA has been obtained, whichever is later. 720669A 50 Attachment 3 51 RECEIVED OF PALM SPI j STATE OF CALIFORNIA•THE RESOURCES AGENCY DEPARTMENT OF FISHAND GAME I JW YYC T 20 PM I; 47 ENVIRONMENTAL FILING FEE CASH RE J A M E S T H O MI r u ': Receipt#: 15-143342 CITY CLERK State Clearinghouse*(if applicable): LeadAgmcy"CITY OF PALM SPRINGS Dwe: 09/08/2015 ConnfyAgeneyoffiildrig: RIVERSIDE hcercrrNa- E-201500868 Project Title-TAHOUITZ CREEK LEVEE IMPROVEMENTS, CITY PROJECT NO.08-26 ProiectAppheml,vame: CITY OF PALM SPRINGS PhsnNwnbv- (760)323-8245 ProjeetAppilemeAddress: 3200 EAST TAHQUITZ CANYON WAY, PALM SPRINGS,CA 92262 ProjectAPplkanr LOCAL PUBLIC AGENCY CNECKAPPUC4B.F FEW - 0 E�mdronmenral jmpect Rep n 0 A Negative Declaration E3Applkation Fee IYaki-Dimialm (Sane 1NaterResourcesCagrol Boardonly) Q Project Subject toCeniJledRegalatoryPwgrams ®Coun1yA4rrbdlsrrodotiFee $50.00 Q Projeei like is ammpf from fees PFG No Effect Determination (FormAaached)j ®Projectthatisexempifronifees(NoftceofEzeirvitotij Total Recefved $50.00 Stnatum acid ilde ofperson receiving payment Deputy Notes: 52 ACR 533(Est.12/2013) Notice of Exemption Appendix E To: Office of Planning and Research From:(Public Agency): City of Palm Springs P.O.Box 3044, Room 113 3200 East Tahquitz Canyon Way Sacramento,CA 95812-3044 -- Palm Springs,CA 92262 County Clerk - - -- — Counly of: Riverside (Address) 2720 Gateway Drive Riverside,CA 92507 Project Title: Tahquitz Creek Levee Improvements, City Project No. 08-26 Project Applicant: City of Palm Springs Project Location-Specific: Tahquitz Creek Golf Resort,west of South Gene Autry Trail and south of Mesquite Avenue,Palm Springs,CA Project Location-City: Palm Springs Project Location•County: Riverside Description of Nature,Purpose and Beneficiaries of Project: The levee improvements project consist of adding roughly 6 to 12 inches of engineered fill along 4,142linear feet of the top of the north levee adjacent to Tahquitz Creek.The project Includes some minor re-grading and soil cement erosion protection along the landside slope of the north levee. Beneficiaries are citizens&visitors. Name of Public Agency Approving Project:City of Palm Springs Name of Person or Agency Carrying Out Project:City of Palm Springs Exempt Status: (check one): ❑ Ministerial(Sec.21080(b)(1); 15268); ❑ Declared Emergency(Sec.21080(b)(3); 15269(a)); ❑ Emergency Project(Sec.21080(b)(4);15269(b)(c)); © Categorical Exemption.State type and section number: 15302 Reconstruction of existing Levee ❑ Statutory Exemptions.Slale code number: - Reasons why project is exempt: Class 2:The project consists of the reconstruction of an existing levee for stabilization.The project is located on the same site and will serve the same purpose and have same capacity as the old one being replaced. Therefore,theTahquitz Creek Levee Improvements,City Project No.08-26,is considered Categorical Exempt from CEQA. Lead Agency Edward Robertson 760.323.8245 Contact Person: Area Code/Telephone/Extension: If filed by applicant: 1.Attach certified document of exemption finding. 2. Has qNotIce of E4emption been filed by the public agency approving the project?, ❑Yes ©No Signature: . _._. _ _ Date: 8.27.15 Title: Principal City Planner O Signed by Lead Agency❑Signed by Applicant Authority cited:Sections 21083 and 21110,Public Resources Code. Date Received for filing at OPR: Reference:Sections 21106.21152,and 21152.1,Pudic Resources Code. F I L E 0 / P O S T E D County of Riverside Peter Aldan Assessor-County Clerk-Reeorde E-291500568 09/08/ge /211111115�I 112A,&M Fee: 50.00 Remoov el I 1'4 2015 av Deputy 53 Attachment 4 5q ?ALM City of Palm Springs Department of Public Works and Engineering * ' 3200 E.Tahquitz Canyon Way • Palm Springs,California 92262 * 0 , ` Tel: (760)323-8253 • Fax:(760)322-8360 • Web:www.palmspringsca.gov c'QI/FORa�p September 12,2013 LOMC Clearinghouse 6730 Santa Barbara Court Elkridge,MD 21075 Subject: Summary of Evaluation of Potential Impacts to Critical Habitats and Species for Tahquitz Creek Levee Improvement Project Dear FEMA: The City of Palm Springs contracted with Nolte Associates,Inc. (NV5)and their environmental subconsultant,Dudek to prepare a Conditional Letter of Map Revision(CLOMR) for the proposed Tahquitz Creek levee improvements project.The levee improvements consist of adding 6-12 inches of engineered fill to the top of the north levee along Tahquitz Creek and some minor re-grading and soil cement erosion protection along the landside slope of the north levee. The existing top of levee is a bicycle and pedestrian asphalt-concrete pathway. The Tahquitz Creek channel is a city-owned and maintained golf course while the landside of the north levee is made up of a public park (Demuth Park) and a city-owned water treatment facility. Dudek's task was to evaluate the potential impacts the project could have on nearby critical habitats and species with the main focus on the Casey June Beetle and three plant-communities-psesent-in the project area. Dudek concluded that the proposed project would not have an adverse impact on the local plant communities and the Casey June Beetle. During construction,project-specific Best Management Practices (BMPs)would be installed to prevent erosion and limit sediment and other pollutants from discharging from the active construction areas. Based on this study by Dudek,the City of Palm Springs concurs that the proposed levee improvement project is not likely to adversely affect listed species or critical habitats. The City and NV5 have contacted Felicia Sirchia of US Fish&Wildlife Service to review the study materials and offer her opinion on this determination per the attached e-mail. Please call me or Savat Khamphou 760.323.8253 ext. 8744 if you have any questions. SincereAll ave 41 ' ,PE Director of Public Works/ City Engineer Attachment c: Scott Berkebile,NV5 Post Office Box 2743 • Palm Springs, California 92263-2743 Savat Khamphou From: Sirchia, Felicia <felicia_sirchia@fws.gov> Sent: Monday, September 16, 2013 11:14 AM To: Savat Khamphou Cc: Scott.Berkebile@nv5.com Subject: Re: ESA Compliance Letter City of Palm Springs -Tahquitz Creek Levee Improvements In Reply Refer To: F W S-ERI V-08B0716-13I0456 Dear Mr. Barakian, This is in response to your correspondence dated September 12, 2013, requesting our concurrence with your determination that the Tahquitz Creek Levee Improvements Project(Project) is not likely to adversely affect the federally endangered Casey's June beetle (Dinacoma caseyi) and its designated critical habitat. Your effects determination was made on behalf of the Federal Emergency Management Agency's (FEMA) Procedure Memorandum 64—Compliance with the Endangered Species Act(ESA) for Letters of Map Change. The Project area is located on the grounds of the Tahquitz Creek Golf Resort just west of South Gene Autry Trail and south of Mesquite Avenue in the City of Palm Springs, California. The levee improvements consist of adding 6-12 inches of engineered fill along 4,142 linear feet of the top of the north levee adjacent to Tahquitz Creek and some minor re-grading and soil cement erosion protection along the landside slope of the north levee. Project activities will occur on the grounds of the golf course in developed land outside of the Tahquitz Creek channel. We have reviewed the information provided to us, including the Results of October 2010 Biological Field Survey, Tahquitz Creek Levee Improvements Project, City of Palm Springs, California(Dudek 2011)and Environmental Permit Requirements, Tahquitz Creek Levee Improvements Project, City of Palm Springs, California(Dudek 2011). Based on this information,the proposed Project impact area is compacted and, in some areas, paved to provide pedestrian and bicycle use and golf course maintenance and access. Therefore, it is unlikely this area provides suitable habitat and substrate for Casey's June beetle since compacted or dry soils do not allow the species to burrow into, move, and feed in the soil as needed during the time they are underground(76 Federal Register 58954). Casey's June beetle critical habitat occurs downstream of the Project area in Palm Canyon Wash. However, the Project proponents will implement Best Management Practices (BMPs)to prevent erosion and limit sediment and other pollutants from discharging into Tahquitz Creek and Palm Canyon Wash. We do not anticipate adverse impacts to Casey's June beetle and its designated critical habitat with implementation of the proposed Project. We are basing this determination on lack of suitable habitat within the Project impact area and implementation of BMPs to avoid impacts to designated critical habitat. Therefore, we concur with your determination that the proposed Project is not likely to adversely affect Casey's June beetle and its designated critical habitat. The interagency consultation requirements of section 7 of the Act have been satisfied. Although our concurrence ends informal consultation, obligations under section 7 of the Act will be reconsidered if new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or 1 56 to an extent not previously considered, or this action is subsequently modified in a manner that was not considered in this assessment. Thank you for your coordination on this project. Please contact me if you have additional questions. -------------------------- Felicia M. Sirchia Fish& Wildlife Biologist U.S. Fish and Wildlife Service Palm Springs Fish and Wildlife Office 777 E. Tahquitz Canyon Way, Suite 208 Palm Springs, CA 92262 Phone 760.322.2070 x205 Fax 760.322.4648 On Wed, Sep 11, 2013 at 4:21 PM, Berkebile, Scott<Scott.Berkebi le(i4nv 5.com>wrote: Good afternoon Felicia, Attached is the City's signed letter with their determination of ESA compliance for the proposed Tahquitz Creek Levee Improvements project. Please review and let me know if you concur with the City's determination. You can simply respond via email with your concurrence. Thank you, Scott Scott Berkebile,PE,CFM,QSD/QSP I Engineering Manager I www.NV5.com 15070 Avenue of Science, Suite 100 1 San Diego, CA 92128 1 V: (858) 385-2163 1 A: (858) 385-0400 ` Please consider the environment before printing this e-mail 2 57 From: Savat Khamphou [mai Ito:Savat.Khamphou( oaImsprinas-ca.aov] Sent: Wednesday, September 11, 2013 4:17 PM To: Berkebile, Scott Cc: Dave Barakian; George Farago Subject: ESA Compliance Letter City of Palm Springs Hi Scott, attached is the City's signed letter. You may forward this to USFWS for concurrence. Savat Khamphou Assistant Director of Public Works/ Assistant City Engineer City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 (760) 323-8253 x8744 (760) 219-5404 (cell) 3 59