HomeMy WebLinkAbout10/4/2006 - STAFF REPORTS - 2.H.DATE:
SUBJECT:
FROM:
BY:
CITY COUNCIL STAFF REPORT
October 4, 2006
CONSENT AGENDA
AWARD CONTRACT FOR AVIATION FINANCIAL CONSULTING
SERVICES
David H. Ready, Cily Manager
Aviation Department
6Y iSTIMA _1:Y1
The requested action will provide a five (5) year Contract Services Agreement for
aviation financial consulting services at the Palm Springs International Airport.
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1. Adopt Minute Order No. , authorizing award of contract to John F. Brown
Company, Inc. to provide Aviation Financial Consulting Services at the Airport for
a Five Year Period, that includes consulting costs for FY 2006/2007 financial
consulting projects in the amount of $47,210.
2. Authorize City Manager to execute all necessary documents.
STAFF ANALYSIS:
The City of Palm Springs issued a request for Statement of Qualifications (SOQ 16-06)
for aviation financial consulting services at Palm Springs International Airport on May
18, 2006. The SOQ was advertised both locally and nationally, and additionally sent to
three firms. Proposals were received by the following firms on June 23, 2006.
1. Frasca & Associates, LLC — New York, NY
2. John F. Brown Company, Inc. — Cincinnati, OH
3. Parsons Brinckerhoff Quade & Douglas, Inc. — San Bernardino, CA
4. Roger H. Bales, Airport Consultant — Palm Desert, CA
The SOQ Evaluation Committee made up of Bob Elsner — Airport Commission
Chairman, Bruce Johnson — Procurement Manager, Craig Graves — Director of Finance
and Steve Zehr -- Department of Aviation evaluated all proposals. The Evaluation
Committee evaluated each firm based on a combination of factors including company
and staff experience, work plan and proposed methodologies to complete required
tasks and responsiveness to client requirements. Based on these factors John F.
ITEM NO. eZ'�4'
City Council Staff Report
(October 4, 2006) -- Page 2
Aviation Financial Consulting Services Contract Award
Brown Company, Inc. scored the highest.
As is required when a professional Firm has been qualified, staff negotiated initial
consulting fees to cover the FY 2006/2007 projects. These negotiations resulted in a
professional fee of $47,210. The projects include review and recommendations
regarding the Airline Use and Lease Agreement Rates and Charges and the
Comprehensive Fee Schedule regarding Aviation related fees, and the development of
Letters of Intent (LOI's) with FAA and TSA for airport terminal development.
The Airport Commission, at their regularly scheduled meeting on October 4"', 2006
recommended that the City Council approve contract award to John F. Brown
Company.
FISCAL IMPACT: Finance Director Review:
The Contract amount of $47,210 has been included in the current budget.
Richard S. Walsh. A.A.E. — birector of Aviation
David H. Ready, Cit ager
Attachments
Minute Order
Contract
MINUTE ORDER NO.
AUTHORIZING AWARD OF CONTRACT TO JOHN F. BROWN COMPANY, INC.
TO PROVIDE AVIATION FINANCIAL CONSULTING SERVICES AT THE AIRPORT
FOR A FIVE YEAR PERIOD, THAT INCLUDES CONSULTING COSTS FOR FY
2006/2007 FINANCIAL CONSULTING PROJECTS IN THE AMOUNT OF $47,210.
I HEREBY CERTIFY that this Minute Order, authorizing award of contract to John F.
Brown Company, Inc. to provide Aviation Financial Consulting Services at the Airport
for a Five Year Period, that includes consulting costs for FY 2006/2007 financial
consulting projects in the amount of $47,210 was approved by the City Council of the
City of Palm Springs, California, in a meeting thereof held on the 4th day of October,
2006.
JAMES THOMPSON
City Clerk
CITY OF PALM SPRINGS
CONSULTANT SERVICES AGREEMENT FOR
Aviation Financial Services
THIS CONSULTANT SERVICES AGREEMENT (herein "Agreement"), is made
and entered into this day of , 2006, by and between the CITY OF
PALM SPRINGS, a municipal corporation, (herein "City") and John F. Brown Company„
Inc., (herein "Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of
this Agreement, the Consultant shall provide those services specified in the "Scope of
Services" attached hereto as Exhibit "A" and incorporated herein by this reference,
which services may be referred to herein as the "services" or "work" hereunder. 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 services and Consultant is
experienced in performing the work and services contemplated herein 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 hereunder and that
all materials will be of good quality, fit for the purpose intended. For purposes of this
Agreement, the phrase "highest professional standards" shall mean those standards of
practice recognized by one or more first-class firms performing similar work under
similar circumstances.
1.2 Consultant's Proposal. The Scope of Service shall include the
Consultant's Statement of Qualifications which shall be incorporated herein by this
reference as though fully set forth herein. In the event of any inconsistency between the
terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law. All services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules, and regulations
of the City and any Federal, State or local governmental agency having jurisdiction in
effect at the time service is rendered.
1.4 Licenses, Permits. Fees and Assessments. 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_ 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 services required by this Agreement, and shall
indemnify, defend and hold harmless City against any such fees, assessments, taxes
penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Work. By executing this Contract, 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
services hereunder. Should the Consultant discover any latent or unknown conditions,
which will materially affect the performance of the services hereunder, 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 Contract Officer.
1.6 Care of Work. The Consultant shall adopt reasonable methods
during the life of the Agreement to furnish continuous protection to the work, and the
equipment, materials, papers, documents, plans, studies and/or other components
thereof to prevent losses or damages, and shall be responsible for all such damages, to
persons or property, until acceptance of the work by City, except such losses or
damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use
reasonable care and diligence to perform their respective obligations under this
Agreement. Both parties agree to act in good faith to execute all instruments, prepare
all documents and take all actions as may be reasonably necessary to cant' out the
purposes of this Agreement. Unless hereafter specified, neither party shall be
responsible for the service of the other.
1.8 Additional Services. See Exhibit "A"
1.9 Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof are set forth in the "Special
Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference.
In the event of a conflict between the provisions of Exhibit "B" and any other provisions
of this Agreement, the provisions of Exhibit "B" shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this
Agreement, the Consultant shall be compensated in accordance with the "Schedule of
Compensation" attached hereto as Exhibit "C" and incorporated herein by this
reference, but not exceeding the maximum contract amount of
Dollars, $47,210 (herein "Contract Sum"), except as agreed in Amendment or as
provided in Section 1.8. The method of compensation may include: (i) a lump sum
payment upon completion, (ii) payment in accordance with the percentage of completion
of the services, (iii) payment for time and materials based upon the Consultant's rates
as specified in the Schedule of Compensation, but not exceeding the Contract Sum or
(iv) such other methods as may be specified in the Schedule of Compensation.
Compensation may include reimbursement for actual and necessary expenditures for
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reproduction costs, telephone expense, transportation expense approved by the
Contract Officer in advance, and no other expenses and only if specified in the
Schedule of Compensation. The Contract Sum shall include the attendance of
Consultant at all project meetings reasonably deemed necessary by the City;
Consultant shall not be entitled to any additional compensation for attending said
meetings. Consultant hereby acknowledges that it accepts the risk that the services to
be provided pursuant to the Scope of Services may be more costly or time consuming
than Consultant anticipates, that Consultant shall not be entitled to additional
compensation therefore, and the provisions of Section 1.8 shall not be applicable for
such services.
2.2 Method of Pavment. Unless some other method of payment is
specified in the Schedule of Compensation, in any month in which Consultant wishes to
receive payment, no later than the first (1st) working day of such month, Consultant
shall submit to the City in the form approved by the City"s Director of Finance, an invoice
for services rendered prior to the date of the invoice. Except as provided in Section 7.3,
City shall pay Consultant for all expenses stated thereon which are approved by City
pursuant to this Agreement no later than the last working day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
,Agreement.
3.2 Schedule of Performance. Consultant shall commence the
services pursuant to this Agreement upon receipt of a written notice to proceed and
shall perform all services within the time period(s) established in the "Schedule
Anticipated Airport Projects" attached hereto as Exhibit "ID", if any, and incorporated
herein by this reference. When requested by the Consultant, extensions to the time
period(s) specified in the Schedule of Performance may be approved in writing by the
Contract Officer, but not exceeding one hundred eighty (180) days cumulatively_
3.3 Force Maieure. The time period(s) specified in the Schedule of
Performance for performance of the services rendered pursuant to 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, including, but not restricted to,
acts of God or of the public enemy, unusually severe weather, fires, earthquakes,
floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars,
litigation, and/or acts of any governmental agency, including the City, if the Consultant
shall within ten (10) days of the commencement of such delay notify the Contract Officer
in writing of the causes of the delay. The Contract Officer 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 Contract Officer such delay is
justified. The Contract Officer'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 pursuant to this Section.
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3.4 Term. Unless earlier terminated in accordance with Section 7.8 of
this Agreement, this Agreement shall continue in full force and effect until completion of
the services but not exceeding five (5) years from the date hereof, except as otherwise
provided in the Schedule of Performance (Exhibit "D").
4.0 COORDINATION OF WORK
4.1 Representative of Consultant_ The following principals of
Consultant are hereby designated as being the principals and representatives of
Consultant authorized to act in its behalf with respect to the work specified herein and
make all decisions in connection therewith;
It is expressly understood that the experience, knowledge, capability and
reputation of the foregoing principals were a substantial inducement for City to enter into
this Agreement. Therefore, the foregoing principals shall be responsible during the term
of this Agreement for directing all activities of Consultant and devoting sufficient time to
personally supervise the services hereunder. For purposes of this Agreement, the
foregoing principals may not be replaced nor may their responsibilities be substantially
reduced by Consultant without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be such person as may
be designated by the City Manager of City. It shall be the Consultant's responsibility to
assure that the Contract Officer is kept informed of the progress of the performance of
the services and the Consultant shall refer any decisions which must be made by City to
the Contract Officer. Unless otherwise specified herein, any approval of City required
hereunder shall mean the approval of the Contract Officer. The Contract Officer shall
have authority to sign all documents on behalf of the City required hereunder to carry
out the terms of this Agreement.
4.3 Prohibition Against Subcontractina or Assianment. The experience,
knowledge, capability and reputation of Consultant, its principals and employees were a
substantial inducement for the City to enter into this Agreement. Therefore, Consultant
shall not contract with any other entity other than those identified in the Consultant's
Statement of Qualifications in Exhibit "D" to perform in whole or in part the services
required hereunder without the express written approval of the City. In addition, neither
this Agreement nor any interest herein 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 approval of City. Transfers restricted
hereunder 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 the Consultant or any surety of Consultant
of any liability hereunder without the express consent of City.
The City's policy is to encourage the awarding of subcontracts to persons or
entities with offices located within the jurisdictional boundaries of the City of Palm
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Springs and, if none are available, to persons or entities with offices located in the
Coachella Valley ("Local SubConsultants"). Consultant hereby agrees to use good faith
efforts to award subcontracts to Local SubConsultants, if Local SubConsultants are
qualified to perform the work required. In requesting for the City to consent to a
subcontract with a person or entity that is not a Local SubConsultant, the Consultant
shall submit evidence to the City that such good faith efforts have been made or that no
Local SubConsultants are qualified to perform the work. Said good faith efforts may be
evidenced by placing advertisements inviting proposals or by sending requests for
proposals to selected Local SubConsultants. The City may consider Consultant's
efforts in determining whether it will consent to a particular subConsultant. Consultant
shall keep evidence of such good faith efforts and copies of all contracts and
subcontracts hereunder for the period specified in Section 6.2,
4.4 Independent Consultant. Neither the 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 herein, except as otherwise set forth
herein. 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 perform all services required herein
as an independent Consultant 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.
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. City shall not in any way or for any
purpose become or be deemed to be a partner of Consultant in its business or
otherwise or a joint venturer or a member of any joint enterprise with Consultant.
5.0 INSURANCE AND INDEMNIFICATION
5.1 Insurance. The Consultant shall procure and maintain, at its sole
cost and expense, in a form and content satisfactory to City, during the entire term of
this Agreement including any extension thereof, the following policies of insurance:
(a) Commercial General Liabilitv Insurance. A policy of
commercial general liability insurance written on a per occurrence basis with a
combined single limit of a least $1,000,000 per occurrence and $2,000,000
aggregate bodily injury and property damage including coverages for contractual
liability, personal injury, independent Consultants, broad form property damage,
products and completed operations. The Commercial General Liability Policy
shall name the City of Palm Springs as an additional insured in accordance with
standard ISO additional insured endorsement or equivalent language. The
Commercial General Liability Insurance shall name the City, its officers,
employees and agents as additional insured.
(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in an amount which fully complies with the statutory
requirements of the State of California and which includes $1,000,000 employer's
liability.
(c) Business Automobile Insurance. A policy of business
automobile liability insurance written on a per occurrence basis with a single limit
liability in the amount of $1,000,000 bodily injury and properly damage, Said
policy shall include coverage for owned, non -owned, leased and hired cars.
(d) Additional Insurance. Additional limits and coverages, which
may include professional liability insurance, will be specified in
Exhibit " B"
The above insurance shall be primary and no other insurance maintained by City
will be called upon to contribute to a'loss. (Reference Section 5.3 regarding sufficiency.)
The above insurance will contain a 30 day notice of cancellation. All polices except
Workers Compensation shall have the City named as an additional insured. Worker's
Compensation insurance shall contain a waiver -of -subrogation clause in favor of City,
its officers, directors, officials, agents, employees, volunteers, and representatives. In
the event any of said policies of insurance are canceled, the Consultant shall, prior to
the cancellation date, submit new evidence of insurance in conformance with this
Section 5.1 to the Contract Officer. No work or services under this Agreement shall
commence until the Consultant has provided the City with Certificates of Insurance,
endorsements or appropriate insurance binders evidencing the above insurance
coverages and said Certificates of Insurance, endorsements, or binders are approved
by the City.
The Consultant agrees that the provisions of this Section 5.1 shall not be
construed as limiting in any way the extent to which the Consultant may be held
responsible for the payment of damages to any persons or property resulting from the
Consultant's activities or the activities of any person or person for which the Consultant
is otherwise responsible.
In the event the Consultant subcontracts any portion of the work in compliance
with Section 4.3 of this Agreement the contract between the Consultant and such
subConsultant shall require the subConsultant to maintain the same polices of
insurance that the Consultant is required to maintain pursuant to this Section.
52 Indemnification. Consultant agrees to indemnify the City, its
officers, agents and employees against, and will hold and save them and each of them
harmless from, any and all actions, suits, claims, damages to persons or property,
losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or
liabilities") that may be asserted or claimed by any person, firm or entity arising out of or
in connection with the negligent performance of the work, operations or activities of
Consultant, its agents, employees, subConsultants, or invitees, provided for herein, or
arising from the negligent acts or omissions of Consultant hereunder, or arising from
Consultant's negligent performance of or failure to perform any term, provision,
covenant or condition of this Agreement, but excluding such claims or liabilities arising
from the sole negligence or willful misconduct of the City, its officers, agents or
employees, who are directly responsible to the City, and in connection therewith:
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(a) Consultant will defend any action or actions filed in
connection with any of said claims or liabilities and will pay all costs and expenses,
including legal costs and attorneys' fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against
the City, its officers, agents or employees for any such claims or liabilities arising out of
or in connection with the negligent performance of or failure to perform such work,
operations or activities of Consultant hereunder; and Consultant agrees to save and
hold the City, its officers, agents, and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is
made a party to any action or proceeding filed or prosecuted against Consultant for
such damages or other claims arising out of or in connection with the negligent
performance of or failure to perform the work, operation or activities of Consultant
hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any
and all costs and expenses incurred by the City, its officers, agents or employees in
such action or proceeding, including but not limited to, legal costs and attorneys' fees.
5.3 Sufficiencv of Insurer or Suretv. Insurance required by this
Agreement shall be satisfactory only if issued by companies qualified to do business in
California, rated "A" or better in the most recent edition of Best Rating Guide, The Key
Rating Guide or in the Federal Register, unless such requirements are waived by the
City Manager or designee of the City ("City Manager") due to unique circumstances. 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 required by this
Section 5 may be changed accordingly upon receipt of written notice from the City
Manager or designee; provided that the Consultant shall have the right to appeal a
determination of increased coverage by the City Manager to the City Council of City
within ten (10) days of receipt of notice from the City Manager.
6.0 REPORTS AND RECORDS
6.1 R_eports. Consultant shall periodically prepare and submit to the
Contract Officer such reports concerning the performance of the services required by
this Agreement as the Contract Officer shall require. Consultant hereby acknowledges
that the City is greatly concerned about the cost of work and services to be performed
pursuant to this Agreement. For this reason, Consultant agrees that if Consultant
becomes aware of any facts, circumstances, techniques, or events that may or will
materially increase or decrease the cost of the work or services contemplated herein or,
if Consultant is providing design services, the cost of the project being designed,
Consultant shall promptly notify the Contract Officer of said fact, circumstance,
technique or event and the estimated increased or decreased cost related thereto and,
if Consultant is providing design services, the estimated increased or decreased cost
estimate for the project being designed.
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6.2 Records. Consultant shall keep, and require subConsultants to
keep, such books and records as shall be necessary to 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 times during normal business hours of City, including the right to inspect,
copy, audit and make records and transcripts from such records. Such records shall be
maintained for a period of three (3) years following completion of the services
hereunder, and the City shall have access to such records in the event any audit is
required.
6.3 Ownership of Documents. All drawings, specifications, reports,
records, documents and other materials prepared by Consultant, its employees,
subConsultants and agents in the performance of this Agreement shall be the property
of City and shall be delivered to City upon request of the Contract Officer or upon the
termination of this Agreement, and 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 hereunder. Any use of such
completed documents for other projects and/or use of uncompleted 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 damages
resulting therefrom. Consultant may retain copies of such documents for its own use.
Consultant shall have an unrestricted right to use the concepts embodied therein. All
subConsultants shall provide for assignment to City of any documents or materials
prepared by them, and in the event Consultant fails to secure such assignment,
Consultant shall indemnify City for all damages resulting therefrom.
6.4 Release of Documents. The 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.
7.0 ENFORCEMENT OF AGREEMENT
7.1 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
c,r 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.
7.2 Disputes. In the event of any dispute arising under this Agreement,
the injured party shall notify the injuring party in writing of its contentions by submitting a
claim therefor. The injured party shall continue performing its obligations hereunder so
long as the injuring party commences to cure such default within ten (10) days of
service of such notice and completes the cure of such default within forty-five (45) days
after service of the notice, or such longer period as may be permitted by the injured
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party; provided that if the default is an immediate danger to the health, safety and
general welfare, such immediate action may be necessary. Compliance with the
provisions of this Section shall be a condition precedent to termination of this
Agreement for cause and to any legal action, and such compliance shall not be a waiver
of any party's right to take legal action in the event that the dispute is not cured,
provided that nothing herein shall limit City's or the Consultant's right to terminate this
Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. Consultant hereby authorizes City to deduct
from any amount payable to Consultant (whether or not arising out of this Agreement) (i)
any amounts the payment of which may be in dispute hereunder or which are necessary
to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii)
all amounts for which City may be liable to third parties, by reason of Consultant's acts
or omissions in performing or failing to perform Consultant's obligation under this
Agreement. In the event that any claim is made by a third party, the amount or validity
of which is disputed by Consultant, or any indebtedness shall exist which shall appear
to be the basis for a claim of lien, City may withhold from any payment due, without
liability for interest because of such withholding, an amount sufficient to cover such
claim- The failure of City to exercise such right to deduct or to withhold shall not,
however, affect the obligations of the Consultant to insure, indemnify, and protect City
as elsewhere provided herein.
7.4 Waiver. No delay or omission in the exercise of any right or
remedy by a nondefaulting party on any default shall impair such right or remedy or be
construed as a waiver_ A party's consent to or approval of any act by the other party
requiring the party's consent or approval shall not be deemed to waive or render
unnecessary the other party's consent to or approval of any subsequent act. Any
waiver by either party of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other provision of this Agreement.
7.5 Riohts 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 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-
7.6 Legal Action. In addition to any other rights or remedies, either
party may take legal action, in law or in equity, to cure, correct or remedy any default, to
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.
7.7 Termination Prior to Expiration Of Term. This Section shall govern
any termination of this Agreement except as specifically provided in the following
Section for termination for cause. The City reserves the right to terminate this
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Agreement at any time, with or without cause, upon thirty (30) days' written notice to
Consultant, except that where termination is due to the fault of the Consultant, the
period of notice may be such shorter time as may be determined by the Contract
Officer. In addition, the Consultant reserves the right to terminate this Agreement at any
time upon, with or without cause, upon sixty (60) days' written notice to City, except that
where termination is due to the fault of the City, the period of notice may be such
shorter time as the Consultant may determine. Upon receipt of any notice of
termination, Consultant shall immediately cease all services hereunder except such as
may be specifically approved by the Contract Officer. Except where the Consultant has
initiated termination, the Consultant shall be entitled to compensation for all services
rendered prior to the effective date of the notice of termination and for any services
authorized by the Contract Officer thereafter in accordance with the Schedule of
Compensation or such as may be approved by the Contract Officer, except as provided
in Section 7.3. In the event the Consultant has initiated termination, the Consultant
shall be entitled to compensation only for the reasonable value of the work product
actually produced hereunder. In the event of termination without cause pursuant to this
-_,er iorr the termtnatin-g—party need not provide the non -terminating party with the
opportunity to cure pursuant to Section 7.2.
7.8 Termination for Default of Consultant. If termination is due to the
failure of the Consultant to fulfill its obligations under this Agreement, City may, after
compliance with the provisions of Section 7.2, take over the work and prosecute the
same to completion by contract or otherwise, and the Consultant shall be liable to the
extent that the total cost for completion of the services required hereunder exceeds the
compensation herein stipulated (provided that the City shall use reasonable efforts to
mitigate such damages), and 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.
7.9 Attornevs' Fees. If either party to this Agreement is required to
initiate or defend or made a party to any action or proceeding in any way connected with
this Agreement, the prevailing party in such action or proceeding, in addition to any
other relief which may be granted, whether legal or equitable, shall be entitled to
reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal,
and in addition a party entitled to attorney's fees shall be entitled to all other reasonable
costs for investigating such action, taking depositions and discovery and all other
necessary costs the court allows which are incurred in such litigation. All such fees
shall be deemed to have accrued on commencement of such action and shall be
enforceable whether or not such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non -liability of Citv Officers and Emolovees. 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.
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8.2 Conflict of Interest. No officer or employee of the City shall have
any financial interest, direct or indirect, in this Agreement nor shall any such officer or
employee participate in any decision relating to the Agreement which effects his
financial interest or the financial interest of any corporation, partnership or association in
which he is, directly or indirectly, interested, in violation of any State statute or
regulation. The Consultant warrants that it has not paid or given and will not pay or give
any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Aaainst Discrimination. Consultant covenants that, by
and for itself, its heirs, executors, assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex, marital status, national
origin, or ancestry in the performance of this Agreement. Consultant shall take
affirmative action to insure that applicants are employed and that employees are treated
during employment without regard to their race, color, creed, religion, sex, marital
status, national origin, or ancestry.
8.4 Non -Discrimination and FAA Reouired Clauses
8.4.1 Consultant for himself, his heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree, as a covenant running with the land, that in the event facilities are
constructed, maintained, or otherwise operated on the said property described in this
lease for a purpose for which a DOT program of activity is extended or for another
purpose involving the provision of similar services or benefits, Consultant shall maintain
and operate such facilities and services in compliance with all other requirements
impose pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the
Secretary, Part 21, Nondiscrimination in Federally -Assisted Programs of the
Department of Transportation -Effectuation of Title VI of the Civil Rights Act of 19645
and a$ said Regulations may be amended.
8.4.2 Consultant for himself, his heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree, as a covenant running with the land, that: (1) no person on the
grounds of race, color, or national origin shall be excluded from participation in, denied
the benefits of, or be otherwise subjected to discrimination in the use of said facilities,
(2) that in the construction of any improvements on, over, or under such land and the
furnishing of services thereon, no person on the grounds of race, color, or national
origin shall be excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination, (3) that Consultant shall use the premises in compliance
with all other requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally -Assisted Programs of the department of Transportation -
Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be
amended.
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8.4.3 That in the event of breach of any of above nondiscrimination
covenants, City shall have the right to terminate this Agreement and to reenter and
repossess said land and the facilities thereon, and hold the same as if this Agreement
had never been made or issued. This provision does not become effective until the
procedures of 49 CFR Part 21 are followed and completed including expiration of
appeal rights.
8.4.4 Consultant shall furnish its accommodation and/or services on a fair,
equal and not unjustly discriminatory basis to all users thereof and it shall charge fair,
reasonable and not unjustly discriminatory prices for each unit or service; PROVIDED,
THAT the Consultant may be allowed to make reasonable and nondiscriminatory
discounts, rebates or other similar type of price reductions to volume purchasers.
8.4.5 Non-compliance with paragraph above shall constitute a material
breach thereof and in the event of such non-compliance, the City shall have the right to
terminate this Agreement and the estate hereby created without liability therefore or at
the electing of the City or the United States either or both said Governments shall have
the right to judicially enforce provisions.
8.4.6 Consultant agrees that it shall insert the above five provisions in any
lease agreement by which Consultant grants a right or privilege to any person, firm or
corporation to render accommodations and/or services to the public on the premises
herein leased.
8.4.7 Consultant assures that it will undertake an affirmative action
program as required by 14 CFR Part 152, Subpart E, to insure that no person shall, on
the grounds of race, creed, color, national origin, or sex, be excluded from participating
in any employment activity covered by this subpart. Consultant assured that it will
require that its covered sub -organizations provide assurances to the Consultant that
they similarly will undertake affirmative action programs and that they will require
assurance from their sub -organizations, as required by 14 CFR 152, Subpart E, to the
same effort.
8.4.8. City reserves the right to further develop or improve the landing area
of the Airport as it sees fit, regardless of the desire or view of Consultant and without
interference or hindrance.
8.4.9 City reserve the right, but shall not be obligated to Consultant to
maintain and keep in repair the landing area of the Airport and all publicly -owned
facilities of the Airport, together with the right to direct and control all activities of the
Consultant in this regard.
8.4.10 This Agreement shall be subordinate to the provisions and
requirement of any existing or future agreement between the City and the United States,
relative to the development, operation or maintenance of the airport.
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8.4.11 There is hereby reserved to the City, its successors and assigns, for
the use and benefit of the public, a right of flight for the passage of aircraft in the
airspace above the surface of the premises herein leased. This public right of flight shall
include the right to cause in said airspace any noise inherent in the operation of any
aircraft used for navigation or flight through the said airspace or landing at, taking off
from or operation on the Airport.
8.4.12. Consultant agrees to comply with the notification and review
requirements covered in Part 77 of the Federal Aviation Regulations in the event future
construction of a building is planned for the leased premises, or in the event of nay
planned modification or alteration of any present or future building or structure situated
on the leased premises.
8.4.13. Consultant, by accepting this Agreement, expressly agrees for
itself, its successors and assigns that it will not erect nor permit the erection of any
structure or object, nor permit the growth of any tree on the land leased hereunder
above the mean sea level elevation of 500 feet. In the event the aforesaid covenants
are breached, City reserves the right to enter upon the Designated Premises hereunder
and to remove the offending structure or object and cut the offending tree, all of which
shall be at the expense of Consultant.
8.4,14. Consultant, by accepting this Agreement expressly agrees for
itself, its successors and assigns that it will not make use of the premises in any manner
which might interfere with the landing and taking off of aircraft from the Airport or
otherwise constitute a hazard. In the event the aforesaid covenant is breached, City
reserves the right to enter upon the premises and cause the abatement of such
interference at the expense of Consultant.
8.4.15_ It is understood and agreed that nothing herein contained shall be
construed to grant or authorize the granting of an exclusive right within the meaning of
SECTION in 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349z).
8.4.16. This Agreement and all the provisions hereof shall be subject to
whatever right the United States Government now has or in the future may have or
acquire affecting the control, operation, regulation and taking over of said airport or the
exclusive or non-exclusive use of the Airport by the United States during the time of war
or national emergency.
8.4.17. This Agreement is subject to the requirements of the U.S.
Department of Transportation's regulations, 49 CFR Part 23, Subpart F and 49 CFR
Part 26.
a. DBE Goals - The City of Palm Springs has not established a
contract goal for the utilization of firms owned and controlled by socially
and economically disadvantaged persons for this project-
b. DBE Obligation -The consultant, sub recipient or subconsultant
shall not discriminate on the basis of race, color, national origin, or sex in
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the performance of this contract. The consultant shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of
DOT -assisted contracts. Failure by the contractor to carry out these
requirements is a material breach of this contract, which may result in the
termination of this contract or such other remedy as the recipient deems
appropriate.
C. Compliance - All contractors or subcontractors for this DOT
assisted contract are hereby notified that failure to carry out the DBE
obligation, as set forth above, shall constitute a breach of contract which,
after notification to the U.S. Department of Transportation, may result in
termination of the contract, or such other remedy as deemed appropriate
by the City.
d. Inclusion of DBE Requirements - The provisions of Sections a, b
and c must be included in every subcontract, so that such provisions shall
be binding upon each subcontractor, regular dealer, manufacturer,
consultant, or service agency.
e. Reporting Requirements - The Consultant shall provide all
information and reports required by the City and shall permit access to its
books, records, accounts, other sources of information and its facilities as
may be determined by the City to be pertinent to ascertain compliance
with the regulations or directives. Quarterly reports of DBE contract
awards, work performed by DBE firms, and payments to DBE firms shall
be submitted to the City within 10 days of the end of each quarter for the
term of the contract. Said reports shall be furnished to the City in a format
which is acceptable to the City.
8.5 Additional FAA Reouirements. This Agreement shall be subject to
additional requirements under 49 CFR part 20, 49 CFR, 18.36 and CFR part 29.
9,0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, document, consent,
approval, or communication 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 prepaid,
first-class mail, in the case of the City, to the City Manager and to the attention of the
Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California
92263, and in the case of the Consultant, to the person at the address designated on
the execution page of this Agreement. Either party may change its address by notifying
the other party of the change of address in writing. Notice shall be deemed
communicated at the time personally delivered or in seventy-two (72) hours from the
time of mailing if mailed as provided in this Section.
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92 Interoretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of this Agreement or any other rule of
construction which might otherwise apply.
9.3 Inteciration: Amendment. It is understood that there are no oral
agreements between the parties hereto affecting this Agreement and this Agreement
supersedes and cancels any and all previous negotiations, arrangements, agreements
and understandings, if any, between the parties, and none shall be used to interpret this
.Agreement. This Agreement may be amended at any time by the mutual consent of the
parties by an instrument in writing.
9.4 5everability. 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 a 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 are
hereby declared as severable and shall be interpreted to carry out the intent of the
parties hereunder 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.
9.5 Coroorate Authoritv. The persons executing this Agreement on
behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii)
they are duly authorized to execute and deliver this Agreement on behalf of said party,
(iii) by so executing this Agreement, such party 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 said party is bound_
9.6 Subordination to Federal Aareements. This Agreement shall be
subject and subordinate to all the terms and conditions of any instrument and
documents under which City acquired the land or improvements thereon and shall be
given only such effect as will not conflict with nor be inconsistent with such terms and
conditions. Concessionaire understands and agrees that this Agreement shall be
subordinate to the provisions of any existing or future agreement between City and the
United States of America, or any of its agencies, relative to the operation or
maintenance of the Airport, the execution of which has been or may be required as a
condition precedent to the expenditure of federal funds for the development of the
Airport.
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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement
as of the date first written above.
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
City Attorney
JU ti
CITY OF PALM SPRINGS
a municipal corporation
By:
City Manager
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CONSULTANT: John F. Brown Company, Inc. Check one: _Individual _Partnership _Corporation
659 Van Meter St-, Suite 500
Cincinnati, OH 45202
Corporations require two notarized signatures, one from A and one from B: A- Chairman of Board, President, or any
Vice President and B- Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer).
By: By:
Signature(notadzed) Signature (notarized)
Name: Name:
Title: Title:
Address: Address:
State of 1 State of l
County of Sas County of Is$
On before me, On before
me.
personally appeared
personally known
to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal -
Notary Signature:
personally appeared
personally known
to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) islore
subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal -
Notary Signature:
Notary Seal: Notary Seal-
17
EXHIBIT "A"
SCOPE OF SERVICES
GENERAL: Consultant shall provide aviation financial consulting services on
non-exclusive, as -needed basis for the Palm Springs International Airport for a
period not to exceed five years. The scope of services contemplated under this
Agreement may include bond financing, federal funding, rates and charges
analysis, comprehensive fee schedule analysis, utility/energy consumption
analysis, and revenue stream development.
For each project assigned to Consultant under this Agreement, a detailed Scope
of Services, Schedule of Performance, and Schedule of Compensation shall be
agreed to by the parties prior to the commencement of any work. For projects
assigned to Consultant concurrent with the execution of this Agreement, the
scope of services, schedule of performance, and schedule of compensation are
included below and identified as "initial Project Assignment." For projects
assigned to Consultant pursuant to this Agreement, the Consultant shall execute
a project -specific amendment inclusive of a detailed scope of services, schedule
of performance, and schedule of compensation prior to commencing any
services. In the event the total cost of services for any project specific
amendment is estimated to exceed $25,000,00, or the cost of such services
exceeds $25,000.00, City Council approval shall be obtained prior to approval
and commencement of the work and in no event shall any work or services
related to such project -specific amendment in excess of $25,000.00 be
commenced until City Council approves such expenditure. In the event the City
Council approves an amendment to the City's Municipal Code regarding the
letting of professional services agreements, the City Manager, in the City
Manager's discretion, may allow this Agreement to be administratively
implemented pursuant to any applicable municipal code amendments in lieu of
compliance with the provisions of this paragraph of the Scope of Services.
INITIAL PROJECT ASSIGNMENT: Projects identified in the FY200612007
Project Proposal Aviation Financial Services attached to this Exhibit A" as Exhibit
"A-1 "
401114-1HKAWN
INITIAL PROJECT ASSIGNMENT PROPOSED SCOPE OF SERVICES FOR
FY2006/2007
Scope of Work
The scope of this engagement is to: 1) develop a financial model of the
airport enterprise suitable for short-term forecasting, capital improvement
program sources, uses, and phasing analysis, and alternate operating revenue
scenario simulation; 2) prepare capital program funding scenarios and assist with
identification of a preferred funding scenario; and 3) provide strategic and tactical
advisory services related to all tenants but particularly related to airline tenants
under the Airport Use and Lease Agreement, including establishment of new
rates and charges in 2007 and capital project approvals, all within the timeframes
set forth by the City.
Term
The term of for delivery of these services will be concluded by June 30,
f►41I11I
Description of Work
A description of tasks and deliverables associated with each of the scope
elements is presented below.
Scope Element 1) Development of financial model
JFB will collect relevant financial information, including CIP, historical
revenues and expenses, debt service, rates and charges calculations,
confer with staff to identify inputs, outputs, and processing, and
recommend preliminary model design. The draft model framework will be
delivered to City for review and discussion. The model will be developed in
Microsoft Excel. The comprehensive financial plan shall include:
o Capital and Debt Finandrig — Current capital and debt financial plan
(sources and uses of funds) will be identified.
o Passenger Facility Charge (PFC) — Analysis that presents
collections and commitments.
o Annual Rate Covenant — Annual debt service coverage shall be
identified in accordance with bond obligations.
c Costs and Cash Flows — Cash flow analysis identifying phased
capital expenditures, operational costs, and expenditures by
category and sources of funds, including grants, PFCs, debt, and
traditional and innovative sources of revenue.
M
o Airline Rates and Charges — Rates and charges set forth in the
Airline Use and Lease Agreement will be presented.
o Cost per Enplanement — Airline cost information at a projected rate
level will be assessed using the Airport's existing rates and charges
methodology.
Financial plan assumptions used in the analysis will be identified.
• JFB will undertake additional data gathering and model refinements based
on City comments obtained during discussion of preliminary model design.
• JFB will deliver model and summary documentation during one on -site
training meeting. City may take possession of the model, but City shall be
prohibited from releasing the model except as may be required by law.
JFB shall, at City's request and subject to available contractual authority of
City to pay JFB's fees and charges at normal and customary billing rates,
provide model maintenance and additional training.
• Deliverable: Financial model and summary documentation.
Scope Element 2) Capital funding assistance
• JFB will review capital improvement plans and City's preliminary funding
concepts with City staff.
• Using the model developed in Scope Element 1, JFB will prepare up to
three funding scenarios for up to three phasing options (maximum of 9
scenarios) and discuss results with City staff. A preferred option will be
prepared along with a presentation (PowerPoint format) summarizing the
preferred option for use with tenants and key stakeholders.
o JFB will assist City with developing and implementing federal assistance
funding plans if requested by City.
• Deliverable: Preferred capital funding option and presentation.
Scope Element 3) Strategic and tactical tenant advisory services
• JFB will evaluate the airline use and lease agreement for the following
purposes: a) To determine rates subject to modification during 2007 and
allowable adjustment methodologies; b) To ascertain limitations on new
revenues to be enacted outside the use and lease agreement; and c) To
identify approaches to funding the capital spending program.
• JFB will discuss with City staff objectives for 2007 airline rate
modifications, prepare cost -based or calculated rate options and
recommendations based on those objectives, assist with appraisal based
rate development if required, and participate in airline consultations
regarding rate modifications.
• JFB will assist City with evaluation of feasibility of establishing new
discretionary revenues if requested by City. JFB will determine if
Customer Facility Charge implementation will necessitate a prior
acknowledgement by signatory airlines that CFC revenue is not subject to
deposit in the single cash box revenue center in the use and lease
agreement and if such acknowledgement is necessary will prepare
appropriate documentation and consult with airlines it requested by City.
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• JFB will, with City, identify staff objectives that may necessitate tenant
negotiations to be successfully completed prior to achieving such
objectives. JFB will assist City with development of negotiation plans and
with negotiations if requested by City.
Deliverable: Schedule of airline rate options in accordance with airline use
and lease agreement and a technical memorandum describing rate
calculation methodology.
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EXHIBIT "B°
SPECIAL REQUIREMENTS
Referencing Section 5.1(d), the following insurance policy must be provided by
Consultant:
Professional Errors and Omissions: A policy of Professional Errors and
Omissions Insurance in an amount not less than $ 1 million per claim and 2
million in the aggregate with respect to loss arising from the actions or omissions
of the Consultant performing professional services hereunder on behalf of the
City.
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EXHIBIT "C
SCHEDULE OF COMPENSATION
A. Aviation Financial Consultant fees for those projects listed under Initial
Project Assignment in Exhibit "A" will not exceed $47,210.
B. All additional fees for additional services that may be assigned to the
Consultant will be negotiated on a project by project basis and agreed to in
Amendment form between the City and the Consultant.
C. The costs for the Initial Project Assignment (Exhibit "A-1") shall not exceed
the amount specified in EXHIBIT "C-1" to this Exhibit.
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EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Projects listed in Exhibit "A-1" will be completed prior to the end of June 30.
2007.
1. Development of financial model
2. Capital funding assistance
3. Strategic and tactical tenant advisory services
Schedules of performance for the remaining years in the contract will be agreed
by both parties in writing no later than 120 days prior to the beginning of the new
year
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