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HomeMy WebLinkAbout10/4/2006 - STAFF REPORTS - 2.I.ppLMg DATE: SUBJECT FROM: BY: CITY COUNCIL STAFF REPORT October 4, 2006 I: Q016"9a011IF:THq•197_l AWARD CONTRACT FOR AIR SERVICE DEVELOPMENT CONSULTING SERVICES David H. Ready, City Manager Aviation Department SUMMARY The requested action will provide Contract Services Agreement for air service development consulting services at the Palm Springs International Airport for an amount not -to -exceed $125,000 annually and a term not -to -exceed five years. 1:4alaft]►LTiIN111►197_3Ile] ►1 1. Adopt Minute Order No. , authorizing award of contract to SH&E, Inc. to provide Air Service Development Consulting Services at the Airport that includes consultant costs for air service development projects in an amount not -to -exceed $125,000 annually and a term not -to -exceed five years. 2. Authorize City Manager to execute all necessary documents. STAFF ANALYSIS: The City of Palm Springs issued a request for Statement of Qualifications (SOO 14-06) for air service development consulting services at Palm Springs International Airport an June 14, 2006. The SOQ was advertised both locally and nationally, and additionally sent to seven firms. Proposals were received by the following firms on July 14, 2006: 1. Campbell -- Hill Aviation Group, Inc. —Alexandria, VA 2. Eclat Consulting, Inc. — Reston, VA 3. InterVISTAS-ga2 Consulting, Inc. — Washington, DC 4. Sabre Airline Solutions, Inc. — Southlake, TX 5. SH&E, Inc. — Cambridge, MA 6. Sixel Consulting Group — Eugene, OR The SOQ Evaluation Committee made up of Bob Elsner —Airport Commission Chairman, Larry Spicer — Airport Commission Vice Chairman, Bruce Johnson — Procurement Manager, and Steve Zehr — Department of Aviation evaluated all ITEM NO. '�- ` * City Council Staff Report (October 4, 2006) -- Page 2 Air Service Consulting Services Contract Award proposals. The Evaluation Committee evaluated each firm based on a combination of factors including company and staff experience in developing passenger air service, knowledge and understanding of the Palm Springs market, high level contacts in the airline industry, staff qualifications, lack of potential conflicts with other regional airports and cost. Based on these factors SH&E, Inc. scored the highest. As is required when a professional firm has been qualified, staff negotiated consulting fees to cover the air service development projects over the term of the contract. These negotiations resulted in a professional fee in an amount not -to -exceed $125,000 annually and a term not -to -exceed five years. The projects include developing nonstop New York City and Washington DC service, adding additional air carriers and destinations, increasing frequencies to existing destinations, and investigating the potential for future service to and from Mexico. The Airport Commission, at their regularly scheduled meeting on October 4"', 2006 recommended that the City Council approve contract award to SH&E, Inc. FISCAL IMPACT: Finance Director Review: The first year Contract amount of $125,000 has been included in the current budget, and the remaining contract year amounts will be budgeted during the associated budgeting cycles. David H. Ready, City war Attachments Minute Order Contract MINUTE ORDER NO. AUTHORIZING AWARD OF CONTRACT TO SH&E, Inc. TO PROVIDE AIR SERVICE DEVELOPMENT CONSULTING SERVICES AT THE AIRPORT THAT INCLUDES CONSULTANT COSTS FOR AIR SERVICE DEVELOPMENT PROJECTS IN AN AMOUNT NOT -TO -EXCEED $125,000 ANNUALLY AND A TERM NOT -TO -EXCEED FIVE YEARS. I HEREBY CERTIFY that this Minute Order, authorizing award of contract to SH&E, Inc. to provide Air Service Development Consulting Services at the Airport that includes consultant costs for air service development projects in an amount of not -to - exceed $125,000 annually and a term not -to -exceed five years, 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 Air Service Development 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 Simat, Helliesen and Elchner, 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 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 Resoonsibilities 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 carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 General Consulting Services. See Exhibit "A". 1.9 Special Reauirements. 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 $625,000 (herein "Contract Sum"), except as provided in Section 1.8 and Exhibit "C". 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 reproduction costs, 2 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 "D", 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- 3 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 Aaainst Subcontractina or Assionment. 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 4 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 Indeoendent 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 Comoensation 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. 5 (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 property 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. Workers 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. 5.2 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, Dosses, 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: 6 (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 Reports. 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. VA 62 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 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. 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 8 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 Hability 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 Riahts 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 Leaal 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 9 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 Section, the terminating 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-liabilitv 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. 10 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 Aoainst 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 Reauired 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 as 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. 11 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. 12 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 dnclude 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 13 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 Requirements. 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. Ether 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. 14 9.2 Interpretation. 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 Intearation: 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 Severability. 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. 15 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: ey- � v City Attorney CITY OF PALM SPRINGS a municipal corporation By: City Manager 16 27-SEP-2005 10:48AM PROM- T-425 P.002/002 r-440 CONSULTANT: Simat, Holliesen and Etchner, Inc. Checkone:—Individual _Partnership ✓Corporation One Main Street Cambridge, MA 02142 Corporation wire TWo notarized signatures, one from A and one to : A Chairman Board, President, or any Vice President2fand S. Secretary, Assistant Secretary, Treasurer, Assl ant Treasurer, or Chi Financial Officer). B r1 BY' Sign re (notarized) r Signature (notarl2ZS� Name: 1. ] l� a1'� �h �Lc� Name: -a M 'P—U-(R 1T-D Title: Pi(eaI GC p Address: i YAW-t"I''A }\� County of ss �j Dry( -'I 20DP b qf j4 Title: r FQ Address: 90 -'ePA4 c "I^ k 001b I State of '"� Countyo s me, On /�4,Y W, �vb( before me, ������ ye - ors pally appeared personally appearec personally known ,'M M QlCAP1T% personally knoWr to me (or proved to me on t e basis of satisfactory to me (or proved to me on the basis of satlsfactorl evidence) to be the person(s) whose name(s) is/are evidence) to be the person(s) whose name(s) is/are subscribed to the within Instrument and acknowledged subscribed to the within Instrument and ocknowledgec to me that helshehhey executed the same in to me that helshe/they executed the same Ir halher/thelr authorized capacity(es), and that by hislhor/their authorized capacity(ies), and that bI his/hadtheir signature(s) an the instrument the his/her/their slgnaturo(s) on the Instrument the person(s), or the entity upon behalf of which the parson(s), or the entity upon behalf of which the person(s) acted, executed the instrume person(s) acted, executed the instrument. WITNESS my hand and cral so' WITNESS my ha icial seal. Notary Signatures _li4i5 Nc ry Si COmmmwaweeln, of RONAI3t`TNID Notary Public ro ot'Ne Yark Notary Seal: Notary Seal: No 0 1 4 Q726 ' .., i COrnmlasJar� Ex fires r�.+ rf p Qualified inW �anggsterCourtty 1 2r 00 Certificate Filed Ih-N4w Nprk Geu Term 4Yplres Norgnj rz3, a •'4 t't��y •. � 17 ~�v r►:etr.1ruveI SCOPE OF SERVICES 2006/2011 • GENERAL.: Consultant shall provide air service development 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 under this Agreement may include, • Assist in developing and maintaining a comprehensive domestic and international air service improvement program for passenger services at Palm Springs International Airport. o International -- Charter Service (Europe) and Scheduled Service • Develop Top 10 List with focus on Top 5 Develop letters of support with intent to use facility when built (2010) • Route analysis as needed • Market to airlines and present forecasts • Follow-up support as needed o Domestic — Top 30 List with focus on establishing or expanding service in Top 20 markets. • Revalidate/reprioritize Top 30 List as needed • Produce airline forecasts as needed • Route analysis • Market to airlines and present forecasts • Follow-up support as needed • Evaluate the market to determine which additional air service opportunities should be pursued and develop a detailed marketing analysis for presentation to airlines. • Utilize existing contacts at the highest levels within domestic and international air carriers to facilitate meetings concerning new and/or improved air service in Palm Springs. o Route Performance Assessment o Route Enhancement Recommendations • Represent the airport at various meetings, hearings and other proceedings concerning air transportation matters at the direction of the Director of Aviation. • Represent the airport system at air service development conferences and/or meetings with airlines at the direction of the Director of Aviation (i.e. Routes, Jump Start, Network). • Analyze industry trends and help the Director or his designee to develop air service marketing strategies. Other aviation related consulting services as required. is For additional projects or services assigned to Consultant that are not included in the Scope of Services listed in Exhibit "A" or exceed $125,000 per year as stated in Exhibit "C", 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 FOR FY 2006/2007 (Project assignments in subsequent years will be defined and agreed upon no later than 1120 days prior to the beginning of the new year.) 1: Alaska Airlines Palm Springs Expansion ;i Presentation at Alaska's Seattle Headquarters Ei Detailed Air Service Presentation B Cost $11,000 2: Southwest Airlines Presentation * Presentation at Southwest's Dallas Headquarters ® Introduction to Palm Springs LT Cost: $15,000 3: Networks 2007 Presentations © AirporUAirline Conference to be held in Tampa, March 2007 1i List of Carriers to Target — Continental — Spirit jetBlue — Northwest — US Airways — AirTran 9 Cost: $23,000 A: Jumpstart 2007 Presentations lu E Airport/Airline Conference to be held in Tucson, June 2007 Z List of Carriers to Target - Air Canada - Continential - Aeromexico - Mexicana - United © Cost: $23,000 5: Palm Springs - Mexico Feasibility Analysis m Determine Expansion Markets and Target Carriers 0 Cost: $15,000 6: Update Palm Springs Leakage Study = Use MIDT data to develop outbound leakage E3 Cost: $20,000 7: Adhoc Assignments 0 Respond to rapidly changing events in the airline industry that could affect Palm Springs 0 Cost: $18,000 Total Cost: 125,000 20 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. 21 EXHIBIT "C SCHEDULE OF COMPENSATION A. Air Service Development Consultant fees for the Scope of Services listed in Exhibit "A" will not exceed $625,000 throughout the term of the contract or shall not exceed $125,000 per contract year. B. Any 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. 22 EXHIBIT "D" SCHEDULE OF PERFORMANCE Proiects listed under Initial Proiect Assignment for FY2006/2007 in Exhibit "A" shall be completed prior to the end of June 30. 2007. 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. 23