HomeMy WebLinkAbout1K OCRCITY COUNCIL STAFF REPORT
DATE: OCTOBER 8, 2020 CONSENT CALENDAR
SUBJECT: APPROVE REAL ESTATE SERVICES AGREEMENTS TO ANALYZE
MARKET DEMAND OF CITY PROPERTIES
FROM: David H. Ready, City Manager
BY: Community and Economic Development Department
SUMMARY
The City Council has directed staff to solicit real estate services to determine general
interest in the purchase of certain City owned properties. Staff solicited proposals from
various real estate brokers and is recommending approval of a Consulting Services
Agreement with RT Properties, Inc., a California corporation, ("RTP"), to officially list
and broker potential sale of two City properties. It is important to note that this action is
only approving a real estate broker agreement and is the first step to identify what
interest, if any, exists in the real estate market for potential buyers of these properties.
To the · extent interest exists, and offers are presented, the City Council will consider that
interest and determine whether to proceed to declare these properties as surplus and to
dispose of them in accordance with applicable state law.
RECOMMENDATION:
1. Approve Agreement No. __ , a Consulting Services Agreement with RT Properties,
Inc., a California corporation; and
2. Authorize the City Manager to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
RT Properties, Inc., is a California corporation providing professional real estate
brokerage. The owner and principal is Scott Timberlake, President, with 100%
ownership of the corporation. A Public Integrity Disclosure Form is included as
Attachment 1 .
ITEM N0._1-K __ _
2City Council Staff Report October 8, 2020 -Page 2 Consulting Services Agreement-Realty Trust BACKGROUND: On July 24, 2019, the City Council approved a Settlement Agreement with Grit Development, LLC, and its affiliate, Palm Springs Promenade, LLC, to resolve a potential Government Code section 1090 civil liability resulting from allegations occurring between 2012 and 2014 involving former Mayor Pougnet, John Wessman and Richard Meaney, as charged by the District Attorney, and to resolve those claims by the City without litigation (and in advance of the resolution by trial or plea of the criminal charges). In accordance with the terms of the Settlement Agreement, the City acquired at no cost five different properties owned by Grit Development. Two of these properties include the "Boulders" property, a 31.38 acre entitled project consisting for forty-five (45) single-family lots zoned R1A with an appraised value of $14,700,000; and the "Crescendo" property, a vacant parcel zoned R1 A with a land area of 41.6 acres with an appraised value of $17,000,000. In the wake of the COVID-19 pandemic, the City lost significant revenue and implemented budget reductions for the prior and current fiscal years. As a result, City Council directed Staff to determine options for generating increased revenue, including disposition of certain City-owned real estate assets. STAFF ANALYSIS: The City is required to follow applicable state laws in disposing of surplus properties. However, in order to determine whether the City desires to declare a property as surplus, it is important to understand whether the property has certain value to be sold to third parties or should be retained and held by the City. Listing properties for sale by a real estate broker is one method to determine what interest, if any, exists in the real estate market from prospective buyers of City-owned property. City Council has directed Staff to engage the services of a commercial real estate broker to determine the actual market value of these properties by marketing them to qualified prospective buyers. Through this process potential offers may be presented to the City Council for further consideration on whether the value of the offer(s) should be pursued further. Entering into an agreement with a real estate broker is necessary to officially list these properties for potential sale. However, it is important to note and Staff expressly advises the public that this action does not authorize the sale of these City properties. The action is limited solely to entering into an agreement with a real estate broker to list the properties for potential sale. If offers to purchase these City properties are received, the City Council will consider the offers and consider whether to proceed with subsequent actions to dispose of these properties in accordance with state law. One first action required will be to declare one
3City Council Staff Report October 8, 2020 -Page 3 Consulting Services Agreement-Realty Trust or both of these properties as surplus in accordance with the Assembly Bill 1486 (the "Surplus Land Act"). In the hypothetical where the City receives interest from prospective buyers of these properties, the City Council (if it chooses to proceed with the sale of one or both of these properties) will first have to declare the properties as surplus through adoption of a Resolution stating that fact, and providing an opportunity first to all entities identified in Government Code Section 54222 an opportunity to competitively bid to purchase the properties. Enacted in 1968, the Surplus Land Act requires all local agencies to prioritize affordable housing, as well as parks and open space, when disposing of surplus land. Before local agencies may dispose of surplus land, they are required to give notice to local public entities and organizations involved in affordable housing development. If a preferred entity expresses interest, the parties must enter into good faith negotiations to determine a sales price or lease terms. Assembly Bill 1486 brings clarity and improves enforcement of the Surplus Land Act to increase the supply of affordable housing. According to the Surplus Land Act, surplus land must be put out to open, competitive bid by a local agency, provided all entities identified in subdivision (a) of Government Code Section 54222 will be invited to participate in the competitive bid process, for either of the following purposes: 1. A housing development, which may have ancillary commercial ground floor uses, that restricts 100 percent of the residential units to persons and families of low or moderate income, with at least 75 percent of the residential units restricted to lower income households, as defined in Section 50079.5 of the Health and Safety Code, with an affordable sales price or an affordable rent, as defined in Sections 50052.5 or 50053 of the Health and Safety Code, for a minimum of 55 years for rental housing and 45 years for ownership housing, and in no event shall the maximum affordable sales price or rent level be higher than 20 percent below the median market rents or sales prices for the neighborhood in which the site is located. 2. A mixed-use development that is more than one acre in area, that includes not less than 300 housing units, and that restricts at least 25 percent of the residential units to lower income households, as defined in Section 50079 .5 of the Health and Safety Code, with an affordable sales price or an affordable rent, as defined in Sections 50052.5 and 50053 of the Health and Safety Code, for a minimum of 55 years for rental housing and 45 years for ownership housing. As stated, before the City Council can make an informed decision on whether to declare any property as surplus, it is important to consider listing the properties for sale to see what interest if any exists. The City issued a Request for Qualifications (RFQ) on July 8, 2020 for Real Estate Marketing and Sales Brokers services to provide professional brokerage and marketing services for various City-owned properties including the subject properties. Statements
4City Council Staff Report October 8, 2020 -Page 4 Consulting Services Agreement-Realty Trust of Qualifications (proposals) were received from five (5) firms and an evaluation of each proposal was conducted by an evaluation panel consisting of three (3) City staff. The evaluation of firms was scored for each property, with a maximum possible score of 100, under the following criteria: Firm/Staff Qualifications 30 points Marketing Plan 30 points Cost Proposal 40 points Realty Trust scored the most points from the cumulative scoring from the evaluators for both the Boulders and Crescendo properties with 262 out of 300 possible points. The brokerage previously sold both properties and has extensive experience in Palm Springs and the Coachella Valley. The fee structure proposed by Realty Trust is a 5% commission split 50/50 with cooperating brokers and did not contain any details on fees in the event that Public Notification under the Surplus Land Act (SLA) may result in sale to a public entity. The proposal from Realty Trust is included in Attachment 2. This action will allow the City to enter into an agreement with Realty Trust to determine the market value of these properties by marketing them to actual qualified buyers. The Consulting Services Agreement is included in Attachment 3. ENVIRONMENTAL IMPACT: The requested City Council action is not a "Project" as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a "Project" means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is for marketing and sale of property, and is exempt from CEQA pursuant to Section 15378 (b), in that a "Project" does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment. FISCAL IMPACT: The subject properties were appraised in July 2019 at a value of $14,700,000 for the Boulders property and $17,000,000 for the Crescendo property. In the absolute hypothetical where the properties are sold at these values the net sales proceeds to the City (less sales commissions) is $13,965,000 for the Boulders property and $16,150,000 for the Crescendo property for a total of $30,115,000. Broker commissions would be approximately $735,000 for the Boulders property and $850,000, for the Crescendo property for a total of $1,585,000 based on RT Properties' commission structure of 5% of the properties' sale price. The commission would be split 50/50 (2.5% each) between the broker listing the property and any assisting
5City Council Staff Report October 8, 2020 -Page 5 Consulting Services Agreement-Realty Trust brokers representing the buyers. The commission would be paid from proceeds of the property sales and would not require appropriations from the City's General fund. However, there is no fiscal impact at this time associated with approving the agreement with RT Properties. SUBMITTED BY: C l2~ Diana R. shay Redevelopment Coordinator Marcus L. Fu ler, M A, .E., P.L.S. Assistant City Manager/City Engineer Attachments: 1. Public Integrity Disclosure 2. Realty Trust Proposal 3. Consulting Services Agreement Jay Vira , Di ector Commurn nd Economic Development
6ATTACHMENT NO. 1 Public Integrity Disclosure
71. Name of Entity PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM 2. Address of Entity (Principle Place of Business) (Q~ €, . ToN\~u.,\ f"7.... Ctt\l\A-j CrV"\ \J'J Ol1 . .Yt.e · ~ ?~\.W\ $t'>f\~S, CA ~~-u,L-3. Local or California Address (if different than #2) 4. State where Entity is Registered with Secretary of State CA-\:\ {brVlltL If other than California, is the Entity also reqistered in California? n Yes n No 5. Type of Entity i,g.corporation D Limited Liability Company D Partnership D Trust D Other (please specify) 6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity Set)t~ TWY\ \x(~k _________________ D Officer D Director D Member D Manager [na D General Partner D Limited Partner $.Other ~e~,c\oot _________________ D Officer D Director D Member D Manager [na D General Partner D Limited Partner •Other ____________ _ _________________ D Officer D Director D Member D Manager (Revised 0913 18) [na D General Partner D Limited Partner •Other ___________ _ CITY OF PALM SPRINGS-PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM Page 1 of 2
87. Owners/Investors with a 5% beneficial interest in the Aoolicant Entity or a related entity EXAMPLE JANEDOE 50%, ABC COMPANY, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entitvl A. Scotf -nYY\'oe-vllAk l DO 1/1) [name of owner/investor] [percentage of beneficial interest in entity t, ~~yt-,eS 1 \V\C. a d name of entitvl B. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] C. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] D. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] E. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT. Signature of Disclosing Party, Printed Name, Title Date ~ qf ~ (?,,ok-D (Revised 0913 18) CITY OF PALM SPRINGS-PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM Page 2 of 2
9ATTACHMENT NO. 2 Realty Trust Proposal
10DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 City of Palm Springs Community and Economic Development Department 3200 E. Tahquitz Canyon Way• Palm Springs, California 92262 RE: RESPONSE TO REQUEST FOR QUALIFICATIONS -REAL ESTATE MARKETING AND SALES . INTRO City of Palm Springs, As a qualified professional real estate brokerage firm, Realty Trust is pleased to submit this proposal to provide professional brokerage and marketing services for (5) City owned properties listed in Attachment A 1. Thank you for giving us the opportunity to respond to the request for qualifications. 1. Qualifications and Experience 1) Proof of Valid California Real Estate Broker's license See Attachment No.1. 2) Minimum of seven (7) years of experience selling vacant land. Realty Trust's Principal, Scott Timberlake, has been a California licensed real estate broker since 1999 and opened a local office in 2010. Michael Kassinger obtained his real estate license in 1996. Luca Volpe has been licensed since 2017 (Real Estate Licenses, Attachment No.1 ). Additionally, as mentioned in Section 2a., some of the sales took place in 2004, confirming that the broker has well over seven (7) years of experience in selling vacant land. Reol·'=J Trust
11DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 3) Professional references and contact information where assignments.services competed are comparable to the Scope of Work: Please refer to Sections 5) and 6) of this document. 4) Realty Trust has never violated regulatory agreements of the City or any other government agencies. Realty Trust has no records of discriminatory practices. 5) Proof of Errors and Omissions Insurance. See Attachment No. 2 2. Requirements 1. Executive Summary Realty Trust has an impressive history of successful and significant transaction representation in Palm Springs and The Coachella Valley. In addition to its distinguished clients, Realty Trust has worked with some of Palm Springs' most revered modernist architects including E. Stewart Williams, Donald Wexler and Hugh Kaptur. We pride ourselves on acting only in our client's best interest delivering the best results. With decades of experience in land sales, our Team, led by Michael Kassinger, is one of the most experienced and qualified land sale brokers in Palm Springs to market the subject properties for the City of Palm Springs. Realty Trust is aware of the many factors that can affect the sales and development of raw land and knows how to manage such processes that lead to a successful closing. Having successfully represented clients through the sales of four (4) out of five (5) of the subject properties, Realty Trust Team clearly understands how to implement the right marketing strategy and can assist all parties involved in the transaction, assuring a successful closing. Reol''=l 7-r ust
12DocuSign Envelope ID: 4FBDD796-1289-49A4-9213-FD6D0CDC0550 2. Description of proposed approach and methodology to performing the scope of work. 2.a. Knowledge of the subject area, specifically land sales. Realty Trust Team has decades of proven real estate experience. For the purpose of the scope of work, Realty Trust Team is comprised of Scott Timberlake (Broker), Michael Kassinger and Luca Volpe. Michael Kassinger will be leading the Team while Scott Timberlake, as the Owner-broker of Realty Trust, will supervise all activities. And, Luca Volpe will provide any necessary support and assistance to implement and execute the scope of work. Michael Kassinger is one of the most experienced and qualified land sales broker in Palm Springs to market the subject properties for the City of Palm Springs. With specific regard to the subject properties, Michael Kassinger has previously sold four (4) out the five (5) subiect properties for which the City is seeking consulting. Having gone through the previous sales of said properties, Michael Kassinger, has extensive knowledge of the areas as well as the best use of them. Specifically he sold the four (4) properties listed below: Property APN Address/Location/Name Size Zoning 1 504-150-011 W. Via Escuela near W. 31.38 R1A through 504-Chino Canyon acres 150-055 (TTM Rd./" Boulders" 30195-45 lots) 2 Tram Way near W. Racquet R1A 504-040-046 Club Rd./"Crescendo" 41.6 acres 3 E. Palm Canyon Drive near Urban Reserve 681-480-011 Gene Autry/"Rimrock" 42.32 acres 4 6 77 -540-028 Gene Autry north of 5.6 acres M1P & Ramon Road/"Gene Autry 677-540-029 Trail"
13DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 Additionally, Michael has sold numerous other properties further specified in Section 6). 26. Knowledge of the technical and functional needs. Working with real estate developers, Realty Trust has acquired extensive knowledge of the technical and functional needs related to each aspect of numerous real estate projects. Real estate development is the process of creating value by making tangible improvements to real property. In order to successfully sell land, the Broker must be familiar with all aspects of the development process. The development process ranges from land speculation and new construction to the renovation of existing buildings. Our Team understands all aspects and the differences involving real estate projects, whether for commercial or residential purposes. These two broad categories encompass everything from retail, office, hospitality and industrial development. Also included are single and multi-family home and developments. To properly represent our clients, besides being current with the market place, Realty Trust Team possesses critical skills such as analytical, financial, marketing, interpersonal and organizational skills. In particular, our Team is knowledgeable with: land uses, permit process, zoning, land scouting, renovating existing buildings, managing construction details, negotiation, obtaining financing, attending public hearings when necessary and overseeing projects. These skills are fundamental to assist both parties, Seller and Buyer, during pending negotiations. Development of real estate involves a plethora of disciplines and professions, including architects, engineers, planners, lawyers, bankers, public officials, construction trades and others. Each team member plays an integral part in the real estate product delivery process. Through the years, Realty Trust Team has developed an extensive network of professionals that together help in understanding the feasibility of a project up to coordinating the information generated by each project participant. This process involves numerous tasks, herein conventionally grouped into five distinct functional disciplines: Market & Competition, Physical & Design, Legal & Political, Financial and Project Management. Understanding how a development process works is very important. The ability to gather information from related tasks within and across disciplines is crucial. Designs are finalized based on financial returns; budgets are established based on market conditions; permits are given based on legal evaluation; and so on. Realty Trust is familiar with said aspects and capable of making recommendation to its clients seeking to maximize value by evaluating the highest and best use of the sites in terms of current and forecasted market conditions. Reol·'°"i Trust
14DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 2c. Proposed strategy to accomplish the work. Many factors can affect the development of raw land and the parameters that constrain the process. These include market conditions, forecast design possibilities, zoning and political restrictions, and financial possibilities. With our extensive market knowledge, specifically in land sales, our strategy is to evaluate and balance such factors together with the numerous professionals to determine the highest and best use of the site as well as project feasibility. Thorough analysis of the current market place, target marketing focused on land buyers and actuation of a marketing plan will be used to accomplish the work. Realty Trust will focus on several aspects, to mention a few: Local supply & demand analysis, evaluate zoning/planning, evaluate local politics, estimate rents in the area, estimate costs, identify use related opportunities and estimate project feasibility/timeline/scope, evaluate land control options, pro-formas, evaluate organization strategy, financial analysis and financing opportunities. 2d. Issues pertinent to this RFP that are not addressed in the Scope of Work City to provide any and all entitlements that run with the land (subject property). City to be prepared to negotiate with buyer a time frame for buyer to receive all entitlements. Some city council members suggested that certain properties should be designated as open space. City to confirm such allocations and remove such properties from the RFP. In order to expedite a sale, City must be prepared to fast track any required entitlements for the buyer. City to give full disclosures regarding community resistance to proposed use of properties -i.e. Crescendo and Boulders where there has been push back from the surrounding neighborhood or other third parties. City to provide any and all plans, studies and Development Agreements currently in possession for the subject properties.
15DocuSign Envelope ID: 4FBDD796-1289-49A4-9213-FD6D0CDC0550 2e. Marketing Plan for prospective buyers Our team has significant experience in real estate marketing and has a very successful track record with comparable projects. We pride ourselves on acting only in our client's best interest delivering the best results. Our goal is to have a clear understanding of the current market and actuate a marketing plan that will maximize the exposure once we have evaluated the highest and best use of the site in terms of current and forecasted market conditions. Marketing Tools All marketing materials will receive the highest attention in terms of selection of graphic design and stock. Advertising I signage I marketing brochures I flyers I Automated Marketing Systems I Internet Marketing Systems I Broadcast Email I Direct Mail to Realty Trust selected buyers !Commercial Brokerage Network-CCIMs & Regional and International brokers. Brochures Electronic, and printable Marketing Brochures will contain an aerial of each site and suggested use(s), site plan, investment information, project details and satellite images. The brochure could also include pricing and buyer guidelines for the subject property as well as maps showing adjacent areas and businesses. It will also include any recent comparable sales. Online Exposure. Each subject property will be listed on the MLS (Land category), as well as Loopnet and Costar, the nation's leading commercial real estate Internet web site. Our firm is a premier subscriber member to this service and therefore a virtual realty tour and related services are available and may be utilized in the marketing of this property. A drone video is recommended and could be part of the marketing. All inquiries will be pre-qualified prior to releasing any marketing materials. Other web sites are also available and we will be utilizing them. In addition we will also feature the property on the Realty Trust web site at realtytrustps.com
16DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 Direct Marketing A focused direct marketing campaign will be a component of the marketing efforts relative to the vacant land. These efforts will be both local and national in scope. This will include forwarding marketing materials directly to targeted principals and cooperating fully with all outside brokers, local, international, independent & commercial brokers, as well as developers and other professionals. Broker Cooperation Realty Trust will cooperate fully with all outside brokerage firms, a practice that is not typically found in the commercial real estate arena. Realty Trust does not withhold or delay property-marketing exposure to any and all cooperating brokers. Postcards Electronic Postcards may be sent to our buyer and broker database including but not limited to other property owners in the Inland Empire, Los Angeles, San Francisco and San Diego areas. Print Media Realty Trust is committed to advertising and promotes all projects and listings in various media. Virtual Tour We will be offering a drone video or on line Virtual Tour. The Virtual Tour will be posted on the most known websites. MLS Exposure (Multiple Listing Service) With our client's approval, Realty Trust will list the property in the MLS systems of the Palm Springs area, Land category. Ema ii Blasts Realty Trust uses the most updated email marketing software which gives the ability to create and manage mailing lists, newsletters, automated campaigns and more. Re,...::il·""'i Tru::31
17DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 Marketing target: Referral from previous clients 3) Schedule and Milestones 2 3 Realty Trust Team City Staff Professional Photographer Professional Web Developer Real Estate Broker Inquiries from on Social Newspaper websites/apps cooperation site slgnage networking ads Gather listings information and update Take professional pictures, virtual tour, aerial, drone videos Create enhanced websites for each subject property Gather listings information and update Gather listings • 2/Week information and update 2/One time 10/One time Reol~'=l -r rust
18DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 4 Realty Trust Team Review custom Review custom Review custom 3/Week sales sales sales marketing plan marketing plan marketing plan for each for each for each property property property 5 Realty Trust Team Feature listings · 1/One Time on our websites 6 Realty Trust Team · Promote new Promote new 2/Week listing on all listing on all marketing marketing platforms platforms (web, (web, newspaper, newspaper, media) media) 7 Realty Trust Team Review vacant 1/Week land blog presence ''' ·-, .. , .. ,. ~ 8 Realty Trust Team Monitor Monitor Monitor 1/Week competitive competitive competitive market market market 9 . Realty Trust Team Responde to Respondeto 2/Week inquiries inquiries 10 Review all Review all Review all 2/Week Realty Trust Team marketing marketing marketing reports listing reports listing reports listing activity and · activity and activity and adjust target adjust target adjust target client client client accordingly accordingly accordingly Reol·"=i ·Trusi
19DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 11 Maintain Maintain Maintain 1/Week Realty Trust Team contact with contact with contact with cooperating cooperating cooperating brokers & brokers & brokers & other other other Professiona Is/ Professionals/ Professionals/ Organizations Organizations Organizations 12 Maintain close Maintain close • 1/Week Realty Trust Team communication communication with City Staff with City Staff ................. ~---····--······· 4) Consultant/Broker Team Realty Trust Team has decades of proven real estate experience. For the purpose of the scope of work, Realty Trust Team is comprised of Scott Timberlake (Broker), Michael Kassinger and Luca Volpe. Michael Kassinger will be leading the Team while Scott Timberlake, as the Owner broker of Realty Trust, will supervise all activities. And, Luca Volpe will provide any necessary support and assistance to implement and execute the scope of work resulting in the sale of these properties. Realty Trust Team I See Attachment No. 3 (Bios) Members Scott Timberlake Michael Kassinger Luca Volpe Project Manager ✓ Principal Support Staff Contact ✓ ✓ 760.333.7578 Scottptimberlake@icloud.com 7 60.668.2322 Micheal@michaelkassinger.com 760.808.3756 lucarealtrytrust@icloud.com
20DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 5) Consultant/Broker References References ---_ __J_ 1 John Wessman Contact Phone: 7 60.408. 7038 2 Grit Development Michael Braun Michael@gritps.com 3 Cathton Investments Inc. Phone: Robert Manning rmanning2626@gmail.com 4 Loren Ostrow Phone:323-806-0660 6) Example of Relevant Work 1 2 3 4 5 6 7 8 9 10 Site Address 300 acres Miralon Project Indian Ave and Sunrise 117 acres SWC of Murray Canyon and S Palm Canyon 25 acres Gene Autry and E Palm Canyon Dr. 10 acres NWC of Mesquite and S Palm Canyon Dr 14 acres project know as Pedregal N Palm Canyon Dr 21 acres (pending) NWC Vista Chino and Gene Autry 8 acres NWC of Hermosa and E Tahquitz Canyon Way 2 acres North Indian Ave (next to Las Brisas Hotel) 30 acres (known as Boulders) Little Tuscany neighborhood 1 O+ acres of miscellaneous properties in Palm Springs Scope of work See Sec. 6) of this document See Sec. 6) of this document See Sec. 6) of this document See Sec. 6) of this document Scope of work Site address See Sec. 6) of this document : See Sec. 6) of ! this document : See Sec. 6) of : this document , See Sec. 6) of this document Sold to original developer (Far West Industries) $10,000,000 Sold to original developer W. Watson $13,000,000 Sold to J Wessman $5,600,000 Sold to Mario Gonzalez $8,000,000 Sold to Wessman $1,000,000 Sold to Developer Mohammad Kaskas (in escrow $6,250,000 Sold to Developer Loren Ostrow $5,000,000 Sold to CMT Developer $3,000,000 Sold to Wessman $3,500,000 Sold to various buyers $12,000,000 Reol'::c::l Trust
21DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 7) Fee Proposa Is Broker compensation for services irrespective of agency relationship(s) is normally 6% of the purchase price. Our standard real estate commission is 6%. However, we will reduce our commission to 5% of the purchase price in order to work with the city on these properties. Broker will cooperate and compensate brokers participating through authorized listing services such as, but not limited to, MLS, Loopnet, Costar, by offering 2.5% of the purchase price out of Broker's compensation. 8) Value of the subject properties The estimated value of the the subject properties is based on a current comparable market analysis. However, said values are subject to vary upon review of any and all entitlements that run with the land, as well as any and all Development Agreements already in place for subject properties. It is critical that the City (property owner) be flexible and aggressive with pricing. There is no doubt that the current pandemic and Property APN Address/Location/ Size Zoning Estimated Name Value 1 504-150-011 W. Via Escuela near W. 31.38 R1A $10,000,000 through 504-Chino Canyon acres 150-055 (TTM Rd./" Boulders" 30195-45 lots) 2 Tram Way near W. 41.6 R1A $10,000,000 504-040-046 Racquet Club acres Rd./"Crescendo" 3 681-480-011 E. Palm Canyon Drive 42.32 Urban Reserve TBD* near Gene acres Autry/" Rimrock" 4 677-540-028 & Gene Autry north of 5.6 acres M1P $2,000,000 677-540-029 Ramon Road/" Gene Autry Trail" 5 513-560-048 E Belardo/Museum/ 0.45 CBD $2,000,000 Parking Structure/ Block G acres Reol~~J Trust
22DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 economical environment limits potential buyers and their critical timing to start and complete development. *Regarding subject property No. 3, "Rim rock", APN 681-480-011, located on East Palm Canyon Drive near Gene Autry (42.32 acres), we believe that due to its location and zoning it could only be used as mitigation land. 7/20/2020 7/20/2020 7/20/2020 Date: Date: Date: GDocuSigned by: ~-·-··-···--1C06704A36174AO ... ~DocuSigned by: M;J.µt,~ 335E4A29C59843F ... QDocuSigned by: WU Vb~k 6F5F9FB8E0CE46E ... Scott P. Timberlake, Broker Michael Kassinger -Agent Luca Volpe -Agent
23DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FO6D0CDC0550 Attachment No. 1 Real Estate License I Scott Timberlake License Type: BROKER Name: Timberlake, Scott Paul Mailing Address: 600 E TAHOUITZ CANYON WAY STE 2 PALM SPRINGS, CA 92262 License ID: 01257645 Expiration Date: 10/31/23 License Status: LICENSED ACTIVE AS OF 07/05/2011 &tat.e nf <ttaltfnrnia: Department of Real Estate Real Estate Broker License Scott Paul Timberlake MAIN OFFICE ADDRESS 600 E TAHQUITZ.CANYO WAY STE 2 PALM SPRINGS, CA 92262 FICTITIOUS BUSINESS NAME • THE REALTY TRUST Identification Number: 01257645 Issued: November 01, 2019 Expires: October 31, 2023 Salesperson License Issued: 04/23/99 (Unofficial --taken from secondary records) Broker License Issued: 11 /01 /99 (Unofficial --taken from secondary records) Former Name(s): NO FORMER NAMES Main Office: 600 E TAHOUITZ CANYON WAY STE 2 PALM SPRINGS, CA 92262 DBA The Realty Trust
24OocuSign Envelope ID: 4FBOD796-1289-49A4-9213-FD6DOCDC0550 Attachment No. 1 Real Estate License I Michael Kassinger ~tt nf C!!alifnrnia Department of Real Estate Real Estate Salesperson License Michael Thomas Kassinger BROKER AFFILIATION NELSON REALTY 120 W ARENAS RD PALM SPRINGS, CA 92262 liie~if/Ctlliaz MJmber: 01%13797 ls~ July 17, 2020 Expires: Septanl>er 23, 2020 c.. 1{-( ~ J ~ j f r L. l 1
25DocuSign Envelope ID: 4FBDD796-1289-49A4-9213-FD6D0CDC0550 Attachment No. 1 Real Estate License I Luca Volpe i,tat.e nf <ttalifnrnia Bureau of Real Estate Real Estate Salesperson License Luca Volpe BROKER AFFILIATION None Th.is license is issued in a non~working status. 'The licensee may not perform licensed activities, ~ Real Estate Commlsslon,r ltknlificationNumbu: 02037333 lssu,d: September 19,2017 Expir,s: September 18,2021
26DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 Attachment No. 2 Proof of Errors and Omissions Insurance. CERTIFICATE OF LIABILITY INSURANCE ERRORS AND OMISSIONS/PROFESSIONAL LIABILITY Date: 1/14/2020 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHT UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICY LISTED BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER, AUTHORIZED REPRESENTATIVE OR PRODUCE, AND THE CERTIFICATE HOLDER. INSURED PRODUCER Nelson Realty/ Realty Trust Michael Mitcheom 650 E. Tahquitz Canyon Way S 2 CA CDl#0775250 Palm Springs CA 92262 925-552-7130 THIS IS TO CERTIFY THAT THE POLICY OF INSURANCE LISTED BELOW HAS BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICY DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICY, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS TYPE OF INSURANCE Real Estate E&O Claims Made and Reported Policy POLICY EFFECTIVE DATE 01/16/20 12:01 a.m. Standard Time at the mailing address of the Named Insured above LIMITS OF LIABILITY Each Occurrence/Wrongful Act $1,000,000 Claims Made and Reported Policy: INSURER AFFORDING COVERAGE ARCH Insurance POLICY EXPIRATION DATE 01/16/21 12:01 a.m. Standard Time at the mailing address of the Named Insured above LIMITS OF LIABILITY General Aggregate $1,000,000 POLICY NUMBER SPL006251400 RETROACTIVE/PRIOR ACTS DATE 01/16/14 This insurance will not apply to any regular act, error, omissions or personal injury which occurred before this date DEDUCTIBLE RETENTION Per Claim $2,500 This insurance coverage is on a claims made and reported basis. Coverage applies only to those Claims that are first made against You and reported to the insurer/carrier during the Policy Period and any Extended Reporting Period as those terms are described in the Policy. Coverage does not apply to any Wrongful Acts committed before the Retroactive Date/Prior Acts Date. Cancellation: This certificate cannot be cancelled flat. In the event of cancellation of this certificate the Insurer shall be entitled to an earned premium for the time in force (a) a short rate of the annual premium if cancelled by the Insured, or (b) at a pro rate of the annual premium if cancelled by the Insurer. If the Certificate is subject to a MINIMUM RETAINED PREMIUM and is cancelled by the Insured, the greater of the minimum retained premium or the short rate premium shall apply. r~c0cJI ·'"" J Tr U':c_~ t
27DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 Attachment No. 3 . Scott Timberlake Scott Timberlake, owner of Realty Trust, has been a licensed real estate broker since 1978, operating in several states including Hawaii, Oregon, Nevada, Arizona, Washington State and California. Scott has been affiliated with national and local real estate associations gaining an excellent record of integrity and professionalism. After operating his business headquarters in Hawaii, he relocated to Oregon in 1987 and opened an office in Palm Springs in 2010. Since that time, he has applied his extensive background and experience to the sale and purchase of numerous properties. Throughout the real estate recession (2009-2014). Scott successfully specialized in foreclosures and short sales of residential and commercial investment properties for his clients. Scott applied his conscientious and visionary stewardship to several historically-significant and Class 1 Historic Buildings in Palm Springs. His ownership and commitment to the preservation of the long vacant Donald Wexler-designed former Merrill Lynch Building in downtown Palm Springs, now occupied by the Eisenhower Health Center, has resulted in a successful and celebrated "adaptive reuse" of this elegant midcentury modern masterpiece. He recently acquired the vacant Tahquitz Plaza (600-650/700-750 Tahquitz Canyon Dr) after a years-long political battle between the City of Palm Springs, the Historic Preservation Society and the previous owner. Now that the exterior restoration is complete, he continues the interior renovation of the expansive commercial space working closely with the original architect, Hugh Kaptur. The building will be renamed Kaptur Plaza. The new space opened in Spring 2017 with a community celebration. Scott sold and managed the restoration of the vacant William Cody-designed building at the high traffic downtown location at Arenas and Palm Canyon Drive which now serves as Realty Trust's administrative headquarters. Scott is proud to call Palm Springs his home and has personally made several financial investments in promoting the vibrancy and long-term growth of the City. Together with business partner, Michael Kassinger, a Palm Springs resident since 1978, Realty Trust has become a respected and valued member of the community with deep ties and working relationships with the business, civic, cultural, and preservation entities of Palm Springs. Scott Timberlake 760 333-7578 scottptimberlake@icloud.com BRE Lie. No. 01257645
28DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 Attachment No. 3 . Michael Kassinger Michael Kassinger has had a long and successful career in every aspect of the real estate and development industries. He has been a resident of Palm Springs since 1978. In the ensuing nearly 40 years, Michael has made significant contributions to the city in a variety of areas. Michael became involved in the development and construction in many Palm Springs projects during the 1980s such as the 120, 000 square foot Courtyard at 777 East Tahquitz Canyon Way, The Bank of Palm Springs, the Steve Chase Wing of the Palm Springs Art Museum with renowned architect E. Stewart Williams and the 146 uint Rose Garden condominium project on Baristo Road. Michael is currently a commissioner on the Planning Commission for the Agua Caliente Band of Cahuilla Indians - a position he has held for 12 consecutive years. After becoming a realtor, given his experience in commercial development, he specialized in hotel sales such as The Ace, Caliente Tropic, Le Horizon, 7 Springs, Melvyn's/Ingleside Inn, Villa Royale, The Sands to name a few. Additionally Michael has sold over 15 plats of land totaling over 500 acres of vacant land in various parts of Palm Springs. After completing some of his clients transactions they requested further representation in areas outside of the Coachella Valley to such areas as Las Vegas, Nevada, San Diego, CA, Phoenix, AZ and El Paso, Texas Together with partner, Scott Timberlake, Realty Trust has become a respected and valued member of the community with deep ties and working relationships with the business, civic, cultural, and preservation entities of Palm Springs. Michael received his degree in Business Management from Ryerson University in Toronto, Canada. Michael Kassinger 760 668-2322 Michael@MichaelKassinger.com BRE Lie. No. 01213797 Reol·""'; Trust
29DocuSign Envelope ID: 4FBDD796-12B9-49A4-9213-FD6D0CDC0550 . Luca Volpe Luca has a legal education, as an Italian attorney. Since he transitioned from a legal career to the Real Estate Industry, Luca has acquired extensive experience in property management and real estate transactions. Luca continues to be actively involved in the local market as buyer of apartment complexes and boutique hotels, allowing him to better understand the market from both positions, as an owner and when he represents clients as an Agent. Luca proudly achieved the PalmSpringslife 2020 Top Producers recognition in the Coachella Valley. He is known for recognizing the strong elements of a property and making sure that together with professional photos and advanced marketing strategies, the beauty of a property will be enhanced to its best. Luca will be personally involved in preparing your property for the market. When representing buyers, Luca is committed to work with them to find the right home at the right price. Luca has confidence in coordinating all aspects of the transaction, from negotiating the deal, arranging financing when necessary, overseeing the home inspection, all leading to a successful closing. Key points: Support clients through the closing and beyond Extensive knowledge of the local market and neighborhoods Ability to target home searches Strong negotiation skills LUCA VOLPE (760) 808 3756 lucarealtytrust@icloud.com BAE Lie. No. 02037333
30ATTACHMENT NO. 3 Consulting Services Agreement
31CONSULTING SERVICES AGREEMENT (Real Estate Sales and Marketing-RT Properties, Inc.) THIS AGREEMENT FOR CONSULTING SERVICES ("Agreement") is made and entered into on __________ , 2020, by and between the City of Palm Springs, a California charter city and municipal corporation ("City"), and RT Properties, 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 requires the services of a real estate sales and marketing firm, for the marketing and sale of City-owned properties known as the "Boulders" and "Crescendo" properties, both undeveloped land in the City of Palm Springs, County of Riverside, State of California, described in more detail in Exhibit "A", ("Project"). B. Consultant has submitted to City a proposal to provide real estate sales and marketing services, to City under the terms of this Agreement. C. Based on its experience, education, training, and reputation, Consultant is qualified and desires to provide the necessary services to City for the Project. D. City desires to retain the services of Consultant for the Project. NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT 1. CONSULTANT SERVICES 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide real estate sales and marketing services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit "A" and incorporated by reference (the "Services" or "Work"). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Consultant warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern. 1.2 Compliance with Law. Consultant shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. Revised: 5/1 /20 55575.18165\32900156.2
321.3 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement. 1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement. 2. TIME FOR COMPLETION The time for completion of the Services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit "A." Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay. 3. COMPENSATION OF CONSULTANT 3.1 Compensation of Consultant. Consultant shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit "A". The total amount of Compensation shall not exceed 5% commission on sale price received as approved by City Council. 3.2 Method of Payment. Payments shall be based on the terms set forth in Exhibit "A" for authorized services performed. Payment structure shall be based on a commission that is a percentage of the sale price of each property. Payment to the Consultant will be made through escrow in final settlement from sale proceeds. Payment to other Brokers 3.3 Changes. In the event any change or changes in the Scope of Services/Work 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. 3.4 Appropriations. This Agreement i.s subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City. 4. PERFORMANCE SCHEDULE 2 Revised: 5/1/20 55575.18165\32900156.2
334.1 Time of Essence. Time is of the essence in the performance of this Agreement. 4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit "A." Any time period extension must be approved in writing by the Contract Officer. 4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Consultant notifies the Contract Officer within ten ( 10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant's performance and is one or more of the following: ( 1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and ( 4) pandemics, epidemics or quarantine restrictions. For purposes of this section, "orders of governmental authorities," includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Consultant notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer's judgment, such delay is justified .. The Contract Officer's determination shall be final and conclusive upon the Parties to this Agreement. The Consultant will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of six months, commencing on the date that this agreement is fully executed by both parties. In addition, three (3) optional three-month extensions to the agreement may be exercised by mutual written agreement of the parties. 4.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant. 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 receipt of the notice of termination, Consultant shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Consultant's deficiencies and charge the cost thereof to Consultant, who shall be liable for the full cost of the City's corrective action. Consultant may not terminate this Agreement except for cause upon thirty (30) days written notice to City. 3 Revised: 5/1/20 55575.18165\32900156.2
345. COORDINATION OF WORK 5.1 Representative of Consultant. The following principal of Consultant is designated as being the principal and representative of Consultant authorized to act and make all decisions in its behalf with respect to the specified Services and work: Scott Timberlake, Owner/Broker. It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services under this Agreement. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer. 5.2 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 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. 5.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, education, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provisions making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. 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. 5.4 Independent Consultant. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Consultant, its agents or employees, perform the Services required, except as otherwise specified. Consultant shall perform all required Services as an independent Consultant of City and shall not be an employee of City and shall remain at all times as to City a wholly independent Consultant with only such obligations as are consistent with that role; however, City shall have the right to review Consultant's work product, result, and advice. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Consultant shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. Consultant shall not have any authority to bind City in any manner. 5.5 Personnel. Consultant agrees to assign the following individuals to perform the Services in this Agreement. Consultant shall not alter the assignment of the following personnel 4 Revised: 5/1/20 55575.18165\32900156.2
35without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Consultant by providing written notice to Consultant. 5.6 Name: Scott Timberlake Michael Kassinger Luca Volpe Owner/Broker Partner/Broker Broker Support California Labor Code Requirements. A. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects ("Prevailing Wage Laws"). If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 177 4 and 177 5), employment of apprentices (Labor Code Section 1777 .5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). B. If the Services are being performed as part of an applicable "public works" or "maintenance" project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725 .5 and 1771.1, the Consultant and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. 6. INSURANCE Consultant shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference. 7. INDEMNIFICATION. 5 Revised: 5/1/20 55575.18165\32900156.2
367.1 Indemnification. 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, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Consultant, its officers, employees, representatives, and agents, that arise out of or relate to Consultant's performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit 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. 7 .2 Design Professional Services Indemnification and Reimbursement. If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of Consultant's performance as a "design professional" (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the Services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the Consultant's proportionate percentage of fault. 8. RECORDS AND REPORTS 8.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require. 8.2 Records. 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 enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 8.3 Ownership of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of this Agreement shall be the property of City. Consultant shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall 6 Revised: 5/1 /20 55575.18165\32900156.2
37have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Consultant may retain copies of such documents for Consultant's own use. Consultant shall have an unrestricted right to use the concepts embodied in such documents. 8.4 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. 8.5 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. 9. ENFORCEMENT OF AGREEMENT 9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the 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. 9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are 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. 9.3 Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement. 9.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the 7 Revised: 5/1/20 55575.18165\32900156.2
38parties are cumulative. 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. 9.5 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement. 9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. 10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 10.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement. 10.2 Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 10.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7 .09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 8 Revised: 5/1/20 55575.18165\32900156.2
3911. MISCELLANEOUS PROVISIONS 11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing. To City: To Consultant: City of Palm Springs Attention: City Manager/ City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 RT Properties, Inc. Attention: Scott Timberlake 600 E. Tahquitz Canyon Way, S 2 Palm Springs, California 92262 11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties. 11.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. 11.6 Third 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. 9 Revised: 5/1 /20 55575.18165\32900156.2
4011.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement. 11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. [SIGNATURES ON NEXT PAGE] IO Revised: 5/1/20 55575.18165\32900156.2
41SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND REAL TV TRUST IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. Date: ___________ _ APPROVED AS TO FORM: By: _________ _ Jeffrey S. Ballinger, City Attorney "CITY" City of Palm Springs By: __________ _ David H. Ready, PhD City Manager ATTEST By:------------Anthony Mejia City Clerk 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: Check one_ Individual_ Partnership_ Corporation Address By _____________ _ By ________________ _ Signature (Notarized) Signature (Notarized) 11 Revised: 5/1/20 55575.18165\32900156.2
42CIVIL CODE§ 1189 A. notary public or other officer con~ing 1hia osrtiicate variftes oot, 1f1e idantity of the ir1dimJal \\tto aijpld the document to which this cartificslB is attached, and not the trulhfuli'laa8. acairacy, « validity of that document. stateafCafifomia County of ___________ _ On _________ beforam&. --------------------Oats personally appeared------------------------who proved to me on ihe basis of satiafactory evidence to be the paraon(a) whoae rl8ffllB(a) ia/are subscribed to the within instrument and scknowledged to me that halshe/they executed the same in his/harJ'lheir authorizsd capacity(ISS). and that by hi&lherllhair aignature(s) on the insbument the peracn(s). or the entity upon behalf of which the peraon(s) acted. executed the insbument. I certify under PENAL TY OF PERJURY under 1he laws of the stale of Csfifomia 1hat the foregoing paragmph is true and 0Df1'8Ct.. WITNESS ffl'/ hand and officisi seal 8ignatme ___________ _ ---------------OP110NAL.---------------7hough thia aecfion ia aptionsl,. oompleting this infotmsfjon can detsr aJtemtfcm of the document ot fmud:rlent l'alttachmant at tma Imm fa an unintBndB.d document Deacription of Attached Document Trtla or Type of Document: ___________ Document Dale: ______ _ Number of P~: ___ Signef(a) other Than Named Above: __________ _ Capacit.yties) Claimed by Signer(a) Signar"a Name: __________ _ 8igner"aName: __________ _ 0 Corp,orate Officer -Tile(a): ____ _ O Corporate Officer -Tile(s}: _____ _ O Partner -O Limited O General 0 Partner -0 limited O General 0 Individual O Attorney in Fact 0 Individual • Attorney in Fact • Trustee • Gll!lrdisn or Cc:maervslor •Trustee O Guardian or Oonsalvalor •other: ____________ _ •other.-------------8ignar la Representing: ________ _ Signer Is Representing: --------12 55575.18165\32900156.2 Revised: 5/1/20
4355575.18165\32900156.2 EXHIBIT ''A'' CONSULT ANT'S SCOPE OF SERVICES/WORK Including, Schedule of Fees And Schedule of Performance 13 Revised: 5/1/20
44EXHIBIT "B" INSURANCE PROVISIONS Including Verification of Coverage, Sufficiency of Insurers, Errors and Omissions Coverage, Minimum Scope of Insurance, Deductibles and Self-Insured Retentions, and Severability of Interests (Separation of Insureds) 14 S5575.18165\32900156.2 Revised: 5/1/20
45INSURANCE 1. Procurement and Maintenance of Insurance. Consultant shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement. Consultant shall also carry workers' compensation insurance in accordance with California workers' compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of Services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows: A. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate; B. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence; C. Professional liability ( errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is: ___ X __ required ____ is not required; D. Workers' Compensation insurance in the statutory amount as required by the State of California and Employer's Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Consultant has no employees, Consultant shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. 3. Primary Insurance. For any claims related to this Agreement, Consultant's insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Consultant's insurance and shall not contribute with it. For Workers' Compensation and Employer's Liability Insurance only, the insurer shall waive all rights of subrogation and 15 Revised: 5/1/20 55575.18165\32900156.2
46contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. 4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either ( 1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Consultant's Services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Consultant's Services under this Agreement. Consultant shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. 5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. 6. Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, effecting 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: A. "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). B. "This insurance is primary and non-contributory over any insurance or self-insurance the City may have ... " ("as respects City of Palm Springs Contract No._" or ''for any and all work pe,formed with the City" may be included in this statement). C. "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. 16 Revised: 5/1/20 55575.18165\32900156.2
47D. 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. 7. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or Services under this Agreement. At the option of the City, either ( 1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Consultant guarantees payment of all deductibles and self-insured retentions. 8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer's liability. 17 Revised: 5/1/20 55575.18165\32900156.2