HomeMy WebLinkAbout10/18/2006 - STAFF REPORTS - 2.G. �QF pALM SA�y
� C
ci v'
C�'tIFOitN`F City Council Staff Report
DATE: October 18, 2006 CONSENT AGENDA
SUBJECT: APPROVING AN AGREEMENT WITH TERRA NOVA PLANNING &
RESEARCH, INC. FOR FOCUSED ENTITLEMENT AND RELATED
PLANNING SERVICES FOR THE. OAS[ GROUP'S HOTEL PROJECT
PA 06-012 WHICH PROPOSES THE CONSTRUCTION OF A HOTEL
AND CONDOMINIUM PROJECT CONSISTING OF NO LESS THAN
200 HOTEL ROOMS AND APPROXIMATELY 180 RESIDENTIAL
CONDOMINIUM VILLAS/ LOFTS ON APPROXIMATELY TEN (10)
ACRES AT THE CORNER OF NORTH AVENIDA CABALLEROS AND
EAST AMADO ROAD IN THE CITY OF PALM SPRINGS.
FROM: David H. Ready, City Manager
BY: Thomas J. Wilson, Assistant City Manager-- Development Services
SUMMARY
Staff is requesting that the Council approve an agreement with Terra Nova Planning &
Research, Inc. to provide to the City's Planning Department focused entitlement and
related planning services for the Oasi Group's Hotel Project PA 06-012 which proposes
the construction of a hotel and condominium project consisting of no less than 200 hotel
rooms and approximately 180 residential condominium villas/lofts on approximately ten
(10) acres at the corner of North Avenida Caballeros and East Amado Road in the City
of Palm Springs.
RECOMMENDATION:
1) Adopt Minute Order No. approving an agreement with Terra Nova
Planning & Research, Inc. for the focused entitlement and related planning
services for the Oasi Group's Hotel Project PA 06-012 not to exceed
$33,700.00.
2) Authorize the City Manager to execute all necessary documents in a form
acceptable to the City Attorney. /
Item No. L . G .
STAFF ANALYSIS:
The Oasi Group has filed a Pre-application with the City for a hotel and condominium
project as described above and has requested that the City utilize its professional
planning services for focused entitlement and related planning services to be
performed by Terra Nova Planning & Research, and has agreed to pay the City for the
full casts of those services.
The City has received a proposal from Terra Nova Planning & Research, Inc. (copy
attached)to provide these services for The Oasi Group's Hotel Project Pre-App PA 06-
012 not to exceed $33,700.00.
Staff is recommending that Terra Nova Planning & Research, Inc. be retained to
provide for the City's Planning Department the EIR Addendum forfocused entitlement
and related planning services.
FISCAL IMPACT: Finance Director Review:
There is no fiscal impact to the City as the applicant has agreed to reimburse the City
for all costs involved in this project.
Thomas J. Wil n
Assistant City Manager—Development Services
. l
David H. Ready
City Manager
Attachments:
1. Terra Nova Planning & Research, Inc. Contract Proposal
Page 2 of 2
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT
FOR: Focused Entitlement AND EIR Planning Services
The Oasi Group's Hotel
Project No. PA 06-012
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and
entered into this 2006, by and between the CITY OF PALM
SPRINGS, a municipal corporation, (herein "City") and TERRA NOVA PLANNING &
RESEARCH, INC., (herein "Contractor"). (The term Contractor includes professionals
performing in a consulting capacity.) The parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Contractor 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, Contractor represents and warrants that Contractor
is a provider of first class work and services and Contractor is experienced in performing
the work and services contemplated herein and, in light of such status and experience,
Contractor 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.
12 Contractor's Proposal. The Scope of Service shall include the
Contractor's proposal or bid 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. Contractor 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. Contractor 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 Contractor'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 FamiliaritV with Work. By executing this Contract, Contractor warrants
that Contractor(a) has thoroughly investigated and considered the scope of services to be
r!(7 ,2?
PA 06-012-Oasi Group Hotel Project—Terra Nava Contract 1 of 17
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, Contractor warrants that
Contractor 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
Contractor discover any latent or unknown conditions, which will materially affect the
performance of the services hereunder, Contractor shall immediately inform the City of
such fact and shall not proceed except at Contractor's risk until written instructions are
received from the Contract Officer,
1.6 Care of Work. The Contractor shall adapt 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 underthis 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 forthe service of
the other.
1.8 Additional Services. City shall have the right at any time during the
performance of the services, without invalidating this Agreement, to order extra work
beyond that specified in the Scope of Services or make changes by altering, adding to or
deducting from said work. No such extra work may be undertaken unless a written order is
first given by the Contract Officer to the Contractor, incorporating therein any adjustment in
(i)the Contract Sum, and/or(ii)the time to perform this Agreement,which said adjustments
are subject to the written approval of the Contractor. Any increase in compensation of up to
ten percent(10%)of the Contract Sum may be approved by the Contract Officer as may be
needed to perform any extra work. Any greater increases, taken either separately or
cumulatively must be approved by the City Council. It is expressly understood by
Contractor that the provisions of this Sectoon shall not apply to services specifically set forth
in the Scope of Services or reasonably contemplated therein, regardless of whether the
time or materials required to complete any work or service identified in the Scope of Work
exceeds any time or material amounts or estimates provided therein.
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.
1.10 Responsible to City. Contractor acknowledges and agrees that the
work and services the Contractor will produce for the City, including any initial study, screen
check draft environmental impact report, draft environmental impact report, and final
environmental impact report, will be prepared in strict and full compliance with the California
Environmental Quality Act and the Environmental Quality Act Guidelines.
G Y l �t
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 2 of 17
(collectively, the"Law")_ Contractor further acknowledges and agrees that, consistent with
the requirements of the Law, all documents that Contractor prepares must reflect the
independent judgment of the City. All work performed and all work product produced shall
be subject to review, revision, and approval of the Contract Officer and the final
environmental impact report, including the draft environmental impact report, comments
thereto, and all related responses to comments, will be subject to approval by the City
Council. In addition, Contractor shall not meet with or discuss the work, services, or the
contents of any work product with the applicant or a representative of the applicant without
the express approval of the Contract Officer nor shall the Contractor take direction from the
applicant or the applicant's representative.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement,
the Contractor shall be compensated in accordance with the "Schedule of Tasks and
Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference,
but not exceeding the maximum contract amount of THIRTY-THREE THOUSAND SEVEN
HUNDRED AND N01100 DOLLARS ($33,700.00) herein "Contract Sum"), except 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 Contractor's rates as
specified in the Schedule of Tasks and Compensation, but not exceeding the Contract Sum
or (iv) such other methods as may be specified in the Schedule of Tasks and
Compensation. Compensation may include reimbursement for actual and necessary
expenditures for 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 Tasks and Compensation. The Contract Sum shall include the attendance of
Contractor at all project meetings reasonably deemed necessary by the City; Contractor
shall not be entitled to any additional compensation for attending said meetings. Contractor
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 Contractor anticipates,
that Contractor shall not be entitled to additional compensation therefore, and the
provisions of Section 1.8 shall not be applicable for such services.
THE MAXIMUM AMOUNT OF CITY'S OBLIGATION UNDER THIS SECTION
2.1 IS THE AMOUNT SPECIFIED HEREIN. IF THE CITY'S MAXIMUM OBLIGATION IS
REACHED BEFORE THE CONTRACTOR'S SERVICES UNDER THIS AGREEMENTARE
COMPLETED, CONTRACTOR WILL NEVERTHELESS COMPLETE THE SERVICES
WITHOUT LIABILITY ON THE CITY'S PART FOR FURTHER PAYMENT BEYOND THE
MAXIMUM AMOUNT.
2.2 Method of Payment. Unless some other method of payment is
specified in the SCHEDULE OF TASKS AND COMPENSATION, in any month in which
Contractor wishes to receive payment, no later than the first (1st) working day of such
month, Contractor 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 Contractorfor all expenses stated thereon which are
approved by City pursuant to this Agreement no later than the last working day of the
month.
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 3 of 17
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. Contractor 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 of Tasks and Performance"
attached hereto as Exhibit "C, if any, and incorporated herein by this reference. When
requested by the Contractor, extensions to the time period(s) specified in the Schedule of
Performance may be approved in writing by the Contract Officer, but not exceeding (Not
applicable)
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 Contractor, 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 Contractor 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 Officers determination
shall be final and conclusive upon the parties to this Agreement. In no event shall
Contractor be entitled to recover damages against the City for any delay in the performance
of this Agreement, however caused, Contractors sole remedy being extension of the
Agreement pursuant to this Section.
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 one (1) year from the date hereof, except as otherwise agreed
to by the parties involved.
4.0 COORDINATION OF WORK
4.1 Representative of Contractor. The following principals of Contractor
are hereby designated as being the principals and representatives of Contractor authorized
to act in its behalf with respect to the work specified herein and make all decisions in
connection therewith:
Nicole Sauviat Criste, Project Manager/ Principal
Terra Nova Planning & Research, Inc.
760-320-9040 Phone -- 760-322-2760 Fax
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 Contractor and devoting sufficient time to personally
supervise the services hereunder. For purposes of this Agreement,the foregoing principals
PA 06-012 -0asi Group Hotel Project—Terra Nova Contract 4 of 17
principals may not be replaced nor may their responsibilities be substantially reduced by
Contractor 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 Contractor's responsibility to assure
that the Contract Officer is kept informed of the progress of the performance of the services
and the Contractor 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_Subcontracting or Assignment. The experience,
knowledge, capability and reputation of Contractor, its principals and employees were a
substantial inducement for the City to enter into this Agreement. Therefore, Contractor
shall not contract with any other entity 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 transferto any person or group of persons acting in concert of more than twenty
five percent(25%)of the present ownership and/or control of Contractor,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 Contractor or any surety of Contractor 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 Springs and, if
none are available,to persons or entities with offices located in the Coachella Valley("Local
Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts
to Local Subcontractors, if Local Subcontractors 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 Subcontractor, the Contractor shall submit evidence to the City that such good faith
efforts have been made or that no Local Subcontractors 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 Subcontractors. The City may consider
Contractor's efforts in determining whether it will consent to a particular subcontractor.
Contractor 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 Contractor. Neither the City nor any of its employees
shall have any control overthe manner, mode or means by which Contractor, its agents or
employees, perform the services required herein, except as provided in Section 1.10 or
otherwise set forth in this Agreement. City shall have no voice in the selection, discharge,
supervision or control of Contractor's employees, servants, representatives or agents, or in
fixing their number, compensation or hours of service. Contractor shall perform all services
required herein as an independent contractor of City and shall remain at all times as to City
a wholly independent contractor with only such obligations as are consistent with that role.
Contractor shall not at any time or in any manner represent that it or any of its agents or
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 5 of 17
i
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 Contractor in its business or otherwise or a joint
venturer or a member of any joint enterprise with Contractor_
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Contractor 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 Liability 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 bodily injury and property damage including coverages for
contractual liability, personal injury, independent contractors, 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 form CG2010(1185)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 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".
All of the above policies of insurance shall be primary insurance. (Reference Section
5.4 regarding sufficiency.) The insurer shall waive all rights of subrogation and contribution
it may have against the City, its officers, employees and agents, and their respective
insurers. In the event any of said policies of insurance are canceled, the Contractor 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 Contractor has provided the City with Certificates of Insurance,
endorsements or appropriate insurance benders evidencing the above insurance coverages
and said Certificates of Insurance, endorsements, or binders are approved by the City_
The contractor agrees that the provisions of this Section 5.1 shall not be construed
as limiting in any way the extent to which the Contractor may be held responsible for the
payment of damages to any persons or property resulting from the Contractor's activities or
the activities of any person or person for which the Contractor is otherwise responsible.
In the event the Contractor subcontracts any portion of the work in compliance with
Section 4.3 of this Agreement the contract between the Contractor and such subcontractor
shall require the subcontractor to maintain the same polices of insurance that the
Contractor is required to maintain pursuant to this Section.
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 6 of 17
i
5.2 Indemnification. Contractor 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 Contractor, its agents,
employees, subcontractors, or invitees, provided for herein, or arising from the negligent
acts or omissions of Contractor hereunder, or arising from Contractor'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:
(a) Contractor 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) Contractor will promptly pay anyjudgment 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 Contractor hereunder; and Contractor 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 Contractor 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 Contractor hereunder, Contractor 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 Performance Bond. Concurrently with execution of this Agreement,
Contractor shall deliver to City a performance bond in the sum of the amount of this
Agreement, in the form provided by the City Clerk, which secures the faithful performance
of this Agreement, unless such requirement is waived by the Contract Officer. The bond
shall contain the original notarized signature of an authorized officer of the surety and
affixed thereto shall be a certified and current copy of his power of attorney. The bond shall
be unconditional and remain in force during the entire term of the Agreement and shall be
null and void only if the Contractor promptly and faithfully performs all terms and conditions
of this Agreement_
5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this
Agreement shall be satisfactory only if issued by companies qualified to do business in
California, rated "B" 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 Contractor
agrees that the minimum limits of the insurance policies and the performance bond
required by this Section 5 may be changed accordingly upon receipt of written notice from
the City Manager or designee; provided that the Contractor shall have the right to appeal a
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 7 of 17
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. Contractor 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. Contractor 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, Contractor agrees that if Contractor 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 Contractor is providing
design services, the cost of the project being designed, Contractor shall promptly notifythe
Contract Officer of said fact, circumstance, technique or event and the estimated increased
or decreased cost related thereto and, if Contractor is providing design services, the
estimated increased or decreased cost estimate for the project being designed.
6.2 Records. Contractor shall keep, and require subcontractors 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 Contractor, its employees,
subcontractors 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 Contractor 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 Contractor will be at the City's sole risk and without liability to Contractor, and the
City shall indemnify the Contractor for all damages resulting therefrom. Contractor may
retain copies of such documents for its own use. Contractor shall have an unrestricted right
to use the concepts embodied therein. All subcontractors shall provide for assignment to
City of any documents or materials prepared by them, and in the event Contractor fails to
secure such assignment, Contractor shall indemnify City for all damages resulting
therefrom.
6.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Contractor in the performance of services
under this Agreement shall not be released publicly without the prior written approval of the
Contract Officer.
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 8 of 17
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 Contractor
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 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
Contractor's right to terminate this Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. Contractor hereby authorizes City to deduct from
any amount payable to Contractor (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 Contractor's acts or
omissions in performing orfailing to perform Contractors obligation underthis Agreement.
In the event that any claim is made by a third party, the amount or validity of which is
disputed by Contractor, 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 Contractor 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 Rights and Remedies are Cumulative. Except with respect to rights
and remedies expressly declared to be exclusive in this Agreement, the rights and
remedies of the 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.
11� 11
l f..w
PA 06-012-Oasi Group Motel Project—Terra Nova Contract 9 of 17
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 Liquidated Damages. Since the determination of actual damages for
any delay in performance of this Agreement would be extremely difficult or impractical to
determine in the event of a breach of this Agreement, the Contractor and its sureties shall
be liable for and shall pay to the City the sum of (waived — see Exhibit "B") as liquidated
damages for each working day of delay in the performance of any service required
hereunder, as specified in the Schedule of Performance (Exhibit "A"). The City may
withhold from any monies payable on account of services performed bythe Contractor any
accrued liquidated damages.
7.8 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 Agreement at any time,
with or without cause, upon thirty(30)days'written notice to Contractor, except that where
termination is due to the fault of the Contractor, the period of notice may be such shorter
time as may be determined by the Contract Officer. In addition,the Contractor 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 Contractor may determine. Upon receipt
of any notice of termination, Contractor shall immediately cease all services hereunder
except such as may be specifically approved by the Contract Officer. Except where the
Contractor has initiated termination, the Contractor 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 TASKS AND COMPENSATION or such as may be approved by the Contract Officer,
except as provided in Section 7.3. In the event the Contractor has initiated termination,the
Contractor 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.
7.9 Termination for Default of Contractor. If termination is due to the
failure of the Contractor 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 Contractor 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 Contractor for the purpose of set-off
or partial payment of the amounts owed the City as previously stated.
7.10 Attorneys' 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
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 10 of 17
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 City Officers and Employees. No officer or employee of
the City shall be personally liable to the Contractor, 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
Contractor or to its successor, or for breach of any obligation of the terms of this
Agreement.
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 Contractor 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 Against Discrimination. Contractor covenants that, by and
for itself, its heirs, executors, assigns, and all persons claiming under orthrough 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. Contractor 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.
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 Planning Services
Director, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in
the case of the Contractor, 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.
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 Integration- 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
PA 06-012-Oesi Group Motel Project—Terra Nova contract 11 of 17
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 Corporate Authority. 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.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
CITY OF PALM SPRINGS
ATTEST: a municipal corporation
By: By.City Clerk David H. Ready
City Manager
APPROVED AS TO FORM
By:
City Attorney
PA 06-012-0asi Group Hotel Project—Terra Nova Contract 12 of 17
CONTRACTOR: Terra Nova Planning & Research, Inc. Check One:
400 South Farrell, Suit B-205 _Individual_Partnership M/Corporation
Palm Springs, CA 92262
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 Chieff�Finaflcial Officer3: J
By./ G 1, q /Y&Z', r� �''� � By-
-
Sighatur6(notarz,�d� Sig na&t ,'(notarized)
Name: Nicole Sauviat Criste Name: John D. Criste
Title: Vice President Title: President
Address. 400 South Farrell Drive, Suite 6205 Address: 400 South Farrell Drive, Suite B205
Palm Springs, CA 92262 Palm Springs, CA 92262
State of California } Slate of California)
County of Riverside} ss County of Riverside} ss
On October 10 2006, before me, Cvnthia A. On October 10, 2006 before me Cynthia A.
Berardi, Notary Public. personally appeared Berardi, Notary Public, personally appeared
Nicole Sauviat Criste and proved to me on the John D. Criste and proved to me on the basis
basis of satisfactory evidence to be the person of satisfactory evidence to be the person
whose name is subscribed to the within whose name is subscribed to the within
instrument and acknowledged to me that instrument and acknowledged to me that he
1=iie/q'tiedhey executed the same in her executed the same in his authorized capacity,
authorized capacity, and that by her signature and that by his signature on the instrument the
on the instrument the person, or the entity person, or the entity upon behalf of which the
upon behalf of which the person acted, person acted, executed the instrument.
executed the instrument.
WITNESS my hand and official seal. WITNESS my hand and official seal.
Notary Notary
Signature: % —" Signature:—
Notary Seal: Notary Seal.
CYNTHIA A. MARDI CYNTHIA A. BERARDI
_01my
Commission aM 1645C99 Commission* 1645Nalary Public- 1645California Y - Notary Public-Calitomlo
Riverslde County Rlveralde County
Comm-Expires Feb 18,2010 My Comm.Expires Feb 16,2010
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 13 of 17
EXHIBIT "A"
SCOPE OF SERVICES
Consultant agrees to perform the following Scope of Services for a proposed development of the
construction of a hotel and condominium project consisting of no less than 200 hotel rooms and
approximately 180 residential condominium villas/lofts on approximately ten(10)acres at the corner
of North Avenida Caballeros and East Amado Road. A Pre-Application package has been
submitted, but no formal application has been received. It is anticipated that the project will require a
Planned Development Permit and a subdivision map. Based on the project package we have
reviewed, we anticipate the following tasks to complete the process.
❑ Coordinate with staff Pre-Application meetings: one Architectural Advisory Committee, and
one staff DRC.
❑ Prepare written comments from both groups and deliver to applicant.
❑ Meet with City Planning staff and establish processes and schedules for project review.
a Meet with applicant as required to coordinate project submittals, revisions, and additional
information,
❑ Coordinate with City staff for inter-and intra-agency transmittal of submittal documentation,
and preparation of staff comments and conditions of approval.
❑ Complete project application review and provide applicant with either"application complete"
or "application incomplete" letter, in conformance with the requirements of the Permit
Streamlining Act.
u Review re-submitted materials as required.
❑ Prepare project analysis in preparation for staff reports and internal and public presentations.
This analysis to include conformance with General Plan, Zoning Ordinance, design
guidelines, engineering requirements, etc. Coordinated with other City departments in this
analysis.
❑ Attend one Development Review Committee (City staff review) meeting for the proposed
project.
❑ Present item to one meeting of the Architectural Review Committee.
a Complete an Initial Study in a format acceptable to the City, and submit screen check copy to
the City for their review. The Initial Study shall incorporate all special studies determined
necessary by the City, and provided by the applicant. The Initial Study will also incorporate
appropriate references and data from the Section 14 Master Plan and EIR.
❑ City staff shall review the screen check/administrative copy prior to its being finalized, and
Terra Nova shall amend the screen check draft accordingly.
❑ Coordinate the publication and posting of the Notice of Intent, Notice of Determination, Public
P'1 ^ �,
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 14 of 17
Public Hearings Notices and other postings as required with the City. The City will be
responsible for publishing and posting all such notices. Terra Nova shall transmit the notices
to the County Clerk, to responsible and trust agencies, and others as required.
❑ Prepare responses to comments received on transmitted Initial Study.
❑ Prepare staff reports, conditions of approval, resolutions, etc. to the Planning Commission
and City Council prior to consideration of the project at public hearing.
❑ Attend two public hearings (one Planning Commission and one City Council) represent the
project at same.
❑ Terra Nova may coordinate directly with the project applicant, architect, engineer, City staff,
and others as appropriate.
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 15 of 17
EXHIBIT "B„
SPECIAL REQUIREMENTS
City hereby waives Section 5.3 as a requirement of this Agreement.
City hereby waives Section 7.7 as a requirement of this Agreement.
PA 06-012-pasi Group Hotel Project-Terra Nova Contract 16 of 17
EXHIBIT "C"
SCHEDULE OF TASKS AND COMPENSATION
Client agrees to compensate Contractor for such services as shown below.
Contractor shall complete the work outlined above in accordance with the fee schedule identified
below and shall invoice Client on a monthly basis on the percentage of completion and include all
supporting documents for reimbursable expenses.
Preliminary Focused Entitlement Budget
Contract Items Amount
Pre-Application Processing and Meetings, letter writing (20 hours) $ 2,500,00
Applicant/City Meetings, including DRC (40 hours) $ 5,000.00
Coordination with applicant, project engineer& architect (36 hours) $ 4,500.00
Project Analysis, transmittals, coordination, completeness review
& correspondence (32 hours) $ 4,000-00
CEQA review and analysis, preparation of Initial Study(40 hours) $ 5,000.00
Preparation of response to comments (10 hours) $ 1,250.00
Preparation of advertising, CEQA notices and postings, and transmittal
of same. $ 1,600.00
Preparation of staff reports for Planning Commission and City Council. $ 3,500.00
AAC Meeting, PC & CC Hearings Preparation & Attendance $ 3,250.00
Administrative Support (40 hours) $ 1,600-00
Subtotal $ 32,200.00
Reimbursables'
Mist. Printing $ 1,000.00
Misc. Office: Postage, telephone, FAX, photocopies, etc. $ 500.00
Subtotal $ 1,500.00
TOTAL CONTRACT $ 33,700.00
1. Reimbursables are estimates and will be billed on a cost basis with supporting documents
attached to subject invoices.
Conclusion
The scope of work and budget above is based on the materials received to date, and
telephone consultation with the applicant and architect for the project. Terra Nova believes
that the budget is sufficient to bring the project to a conclusion in a timely manner,
assuming no significant re-design through the process.
PA 06-012-Oasi Group Hotel Project—Terra Nova Contract 17 of 17
r- 1
L -A TERRA NOVA PLANNING & RESEARCH, INC.
August 10, 2006
Mr. Tom J. Wilson
Assistant City Manager, Development Services
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
RE: Focused Entitlement, W Aloft
Dear Tom:
Understanding of the Project
Starwood Hotels proposes the construction of a hotel/condominium project consisting of 178
hotel rooms, and 188 residential villas/lofts on approximately 10 acres at the corner of Avenida
Caballeros and Amado Road. A Pre-Application package has been submitted, but no formal
application has been received. It is anticipated that the project will require a Planned
Development Permit and a subdivision map. Based on the project package we have reviewed, we
anticipate the following tasks to complete the process-
* Coordinate with staff Pre-Application meetings: one Architectural Advisory Committee,
and one staff DRC.
❑ Prepare written comments from both groups and deliver to applicant.
❑ Meet with City Planning staff and establish processes and schedules for project review.
❑ Meet with applicant as required to coordinate project submittals, revisions and additional
information.
❑ Coordinate with City staff for inter- and infra- agency transmittal of submittal
documentation, and preparation of staff comments and conditions of approval.
❑ Complete project application review and provide applicant with either "application
complete" or "application incomplete" letter, in conformance with the requirements of
the Permit Streamlining Act.
• Review rc-submitted materials as required.
❑ Prepare project analysis in preparation for staff reports and internal and public
presentations_ This analysis to include conformance with General Plan, Zoning
Ordinance, design guidelines, engineering requirements, etc. Coordinated with other City
departments in this analysis.
Mr.Tom Wilson
August 10,2006
Page 2 of 3
❑ Attend one Development Review Committee (City staff review)meeting for the proposed
project.
❑ Present itern to one meeting of the Architectural Review Committee.
❑ Complete an Initial Study in a format acceptable to the City, and submit screen check
copy to the City for their review. The Initial Study shall incorporate all special studies
determined necessary by the City, and provided by the applicant. The Initial Study will
also incorporate appropriate references and data LTom the Section 14 Master Plan and
EIR.
❑ City staff shall review the screen clieck/administrative copy prior to its being finalized,
and Terra Nova shall amend the screen check draft accordingly_
❑ Coordinate the publication and posting of the Notice of Intent, Notice of Determination,
Public Hearings Notices and other postings as required with the City. The City will be
responsible for publishing and posting all such notices. Terra Nova shall transmit the
notices to the County Clerk, to responsible and trust agencies, and others as required.
❑ Prepare responses to comments received on transmitted Initial Study_
❑ Prepare staff reports, conditions of approval, resolutions, etc. to the Planning
Commission and City Council prior to consideration of the project at public hearing.
❑ Attend two public hearings (one Planning Commission and one City Council) represent
the project at same.
❑ Terra Nova may coordinate directly with the project applicant, architect, engineer, City
staff, and others as appropriate.
Budget
Staff Time Amount
Pre-Application Processing and Meetings, letter writing (20 hours) S 2,500.00
Applicant/City Meetings, including DRC (40 hours) $ 5,000.00
Coordination with applicant, project engineer& architect (36 hours) $ 4,500,00
Project Analysis, transmittals, coordination, completeness review
& correspondence(32 hours) S 4,000.00
CEQA review and analysis, preparation of Initial Study(40 hours) S 5,000.00
Preparation of response to comments (10 hours) S 1,250.00
Preparation of advertising, CEQA notices and postings, and transmittal
of same. S 1,600.00
Preparation of staff reports for Planning Commission and City Council. $ 3,500.00
L),r,,
Mr.Tom Wilson
August 10,2006
Page 3 of 3
AAC Meeting, PC & CC Hearings Preparation &Attendance $ 3,250.00
Administrative Support (40 hours) $ 1,600.00
Subtotal $ 32,200.00
ReimburseablesI
Misc. Printing $ 1,000.00
Misc. Office: Postage, telephone, FAX, photocopies, etc. $ 500.00
Subtotal S 1,500.00
Total Budget S 33,700.00
1. Reimbursables are estimates and will be billed on a cost basis.
Conclusion
The scope of work and budget above is based on the materials received to date, and telephone
consultation with the applicant and architect for the project. We believe that the budget is
sufficient to bring the project to a conclusion in a timely manner, assuming no significant re-
design through the process.
Sincerely,
Nicole Sauviat Criste
Principal
MINUTE ORDER NO.
APPROVING A CONTRACT AGREEMENT WITH TERRA
NOVA PLANNING & RESEARCH, INC. FOR FOCUSED
ENTITLEMENT AND PLANNING SERVICES FOR THE
OASI GROUP'S HOTEL. PROJECT PA 06-012 WHICH
PROPOSES THE CONSTRUCTION OF A HOTEL AND
CONDOMINIUM PROJECT CONSISTING OF NO LESS
THAN 200 HOTEL ROOMS AND APPROXIMATELY 180
RESIDENTIAL CONDOMINIUM VILLAS/LOFTS ON
APPROXIMATELY TEN (10) ACRES AT THE CORNER
OF NORTH AVENIDA CABALLEROS AND EAST AMADO
ROAD IN THE CITY OF PALM SPRINGS.
I HEREBY CERTIFY that this Minute Order, approving a contract
agreement with Terra Nova Planning & Research, Inc. for Focused
Entitlement and Planning Services for The Oasi Group's Hotel Project
PA 06-012 not to exceed $33,700.00, was adapted by the City Council
of the City of Palm Springs, Calofornia, in a meeting which was held on
the day of October, 2006.
JAMES THOMPSON
City Clerk