HomeMy WebLinkAbout10/18/2006 - STAFF REPORTS - 2.H. D4 VALM SA4
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City Council Staff Report
DATE: October 18, 2006 CONSENTAGENDA
SUBJECT: APPROVING A CONTRACT AGREEMENT WITH TERRA NOVA PLANNING
& RESEARCH, INC. FOR FOCUSED ENTITLEMENT AND PLANNING
SERVICES FOR THE ONE PALM SPRINGS PROJECT PA 06-013 WHICH
PROPOSES THE CONSTRUCTION OF 226+ MULTIPLE-STORY CONDO-
MINIUM UNITS ON A LEASED-LAND PARCEL AT THE SOUTHEAST
CORNER OF EAST AMADO ROAD AND NORTH AVENIDA CABALLEROS IN
THE CITY OF PALM SPRINGS, CALIFORNIA
FROM: David H. Ready, City Manager
BY: Thomas J. Wilson, Assistant City Manager-- Development Services
SUMMARY
Staff is requesting that the Council approve a contract agreement with Terra Nova Planning
& Research, Inc. to provide to the One Palm Springs Project PA 06-013 for the proposed
construction of 226 + multiple-story condominium units on a leased-land parcel at the
southeast corner of East Amado Road and North Avenida Caballeros in the City of Palm
Springs, California. The services of Terra Nova Planning & Research, Inc. will not exceed
$34,450.00, and will be paid to the City by PS Venture Caballeros Amado, LLC, and
California Development Enterprises, Inc., Owner/Developer under a separate
Reimbursement Agreement.
RECOMMENDATION:
1) Adopt Minute Order No. approving an agreement with Terra
Nova Planning and Research, Inc. Inc. for Focused Entitlement and
Planning Services for One Palm Springs, Project PA 06-013 not to exceed
$34,450.00.
2) Authorize the City Manager to execute all necessary documents in a
form acceptable to the City Attorney.
Item No. n . H .
STAFF ANALYSIS:
PS Venture Caballeros Amado, LLC, and The California Development Enterprise
Companies, Inc. have filed an application with the Cityforthe proposed for construction'
of 226± multiple-story condominium units on a leased-land parcel at the southeast
corner of East Amado Road and North Avenida Caballeros, Project No. PA 06-013,
situated within the City of Palm Springs, California. The services of Terra Nova
Planning &Research, Inc.will not exceed $34,450.00, and will be paid to the City by PS
Venture Caballeros Amado, LLC, and California Development Enterprises, Inc.
Owner/Developer, under a separate Reimbursement Agreement.
The City has received a proposal from Terra Nova Planning & Research, Inc. (copy
attached) to provide these services for the One Palm Springs project.
Staff is recommending that Terra Nova Planning & Research, Inc. be retained to provide
the City's Planning Department with the Focused Entitlement and Planning Services for
this project.
FISCAL IMPACT: Finance Director Review:
There is no fiscal impactto the City as the applicant has agreed to reimburse the City for
all costs involved in this project.
Thomas J. Wilspfi, Assistant City Manager—
Development Services
David H. Ready, City M r
Attachments:
1. Terra Nova Planning & Research, Inc. Contract Proposal
Page 2 of 2 0 12
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT
FOR: "One Palm Springs"
Pre-App No. PA 06-013
PS Venture Caballeros Amado, LLC,
California Development Enterprises, Inc., Developer,
and Del Grano II, LLC
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made
and entered into this 12006, by and between the CITY
OF PALM SPRINGS, a municipal corporation, (herein referred to as "City") and
TERRA NOVA PLANNING & RESEARCH, INC. (herein referred to as "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.
1.2 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 anyfees, 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 Familiarity with Work. By executing this Contract, Contractor
warrants that Contractor(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, 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 adopt reasonable methods
during the life of the Agreement to furnish continuous protection to the work, and the
equipment, materials, papers, documents, plans, studies and/or other components
thereof to prevent losses or damages, and shall be responsible for all such damages,
to persons or property, until acceptance of the work by City, except such losses or
damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use
reasonable care and diligence to perform their respective obligations under this
Agreement. Both parties agree to act in good faith to execute all instruments, prepare
all documents and take all actions as may be reasonably necessary to carry out the
purposes of this Agreement. Unless hereafter specified, neither party shall be
responsible for the 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 Section 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..
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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(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-FOUR
THOUSAND FOUR HUNDRED FIFTY AND NO/100 DOLLARS ($34.450.00) 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 fortime 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.
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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 AGREEMENT ARE 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 Iaterthan 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 with all supporting documents for any
reimbursables priorto the date of the invoice. Except as provided in Section 7.3, City
shall pay Contractor 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. 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 "Entitlement
Processing -Schedule of Tasks and Compensation" 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 Tasks and
Compensation may be approved in writing by the Contract Officer, but not exceeding
Not applicable).
3.3 Force Maleure. 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 Officer's 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, Contractor's 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,
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except as otherwise provided in the Entitlement Processing - Schedule of Tasks and
Compensation (Exhibit "C").
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:
Ms. Nicole Criste, Project Manager
TERRA NOVA PLANNING & RESEARCH, INC.,
Phone: 760-320-9040
Fax: 760-322-2760
ncriste@terranovaplanning.com
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 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 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 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
7
PA 06-013-"One Palm Springs"-Terra Nova Planning &Research, Inc. — Contract Page 5 of 18
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 orthat
no Local Subcontractors are qualified to perform the work_ Said goad 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 twill 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 over the 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 employees
are agents or employees of City. City shall not in anyway 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 fallowing 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 farm 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.
PA 06-013-"One Palm Springs"-Terra Nova Planning& Research, Inc. — Contract Page 6 of 18
(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 16
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 binders 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 forthe 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.
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-
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(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) Contractorwill 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 orfailure 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. Performance Bond requirement waived — see EXHIBIT "B"
5.4 Sufficiency of Insurer or Suret . 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 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
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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 notify the Contract Officer of said
fact, circumstance, technique or event and the estimated increased ordecreased 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.
7.0 ENFORCEMENT OF AGREEMENT
7A 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.
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7.2 Dilutes. 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 therefore- 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 or failing to perform Contractor'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 Contractor, or any indebtedness shall
exist which shall appearto 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 orto
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 non-defaulting 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.
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
PA 06-013-"One Palm Springs"-Terra Nova Planning& Research, Inc. — Contract Page 10 of 18
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 Tasks and
Compensation (Exhibit "C"). The City may withhold from any monies payable on
account of services performed by the 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 orwithout 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 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
.3
PA 06-013-"One Palm Springs"-Terra Nova Planning&Research, Inc. — Contract Page 11 of 18
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.
82 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 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. 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 Director of Planning Services, 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
PA 06-013-"One Palm Springs"-Terra Nova Planning &Research, Inc. — contract Page 12 of 18
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 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 06.013-"One Palm Springs"-Terra Nova Planning& Research, Inc. — Contract Page 13 of 18
CONTRACTOR: TERRA NOVA PLANNING & RESEARCH, INC.
400 South Farrell, Suite B-205
Palm Springs, CA 92262
Check One:—Individual_Partnership /Corporation
Corporations require two notarized signatures, one from A and one from B: A. Chairman of Board,
President, or any Vice President:and B.Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,
or Chief Financial Officer).
i Signat ru e�notanz d) Signdtur,-/(notarized)
� J
Name: Nicole Sauviat Criste Name: John D. Criste
Title: Vice President Title' President
Address: 400 South Farrell Drive, Suite B205 Address: 400 South Farrell Drive, Suite 6205
Palm Springs, CA 92262 Palm Springs, CA 92262
State of California } State of California}
County of Riverside} ss County of Riverside} ss
On October 10, 2006, before me, Cynthia 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
hee/sh'elthey 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: L. 1 - Signature: }'
Notary Seal: Notary Seal:
CWOH7A A DERAR01 CYNTHI=BERApol
CammlisionM 7645✓!99CommissiNOlory PubIIC-Califomla -�'.� Nafary Puar xRiverside CountyMyCamm.E+plresFe416,2010 Riversi -
M1'camm.Ex7 p
PA 06-013-"One Palm Springs"-Terra Nova Planning& Research, Inc. - Contract Page 14 of 18
EXHIBIT "A"
SCOPE OF SERVICES
PRELIMINARY SERVICES:
Contractor agrees to perform the following Scope of Services for the City of Palm
Springs, (hereinafter referred to as the "City") for the development of One Palm
Springs hereinafter referred to as "Client").
This project is located within the City of Palm Springs, California and is hereinafter
referred to as "Project," and described below:
One Palm Springs: _
One Palm Springs proposes the construction of 226+ multiple-story condominium
units on leased land at southeast corner of East Amado Road and North Avenida
Caballeros (Pre-App No. PA 06-013).
❑ 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 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.
❑ 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.
Coordinate with other City departments in this analysis.
u Attend up to two Community Meetings.
❑ Attend one Development Review Committee (City staff review)meeting for the
proposed project.
❑ Present item to two meetings 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 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 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-
Li Terra Nova may coordinate directly with the project applicant, architect,
engineer, City staff, and others as appropriate.
CONCLUSION
The scopes of work and budgets above are based on anticipated non-controversial
processing. Should the community meetings for One Palm Springs result in
significant additional review associated with project changes, Contractor will advise
the City immediately in writing. (See Section 1.10 Responsible to City on page 3.)
PA 06-013-"One Palm Springs"-Terra Nova Planning &Research, Inc. — Contract Page 16 of 18
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 06-013-"One Palm Springs'-Terra Nova Planning& Research. Inc. — Contract Page 17 of 18
EXHIBIT "C"
SCHEDULE OF TASKS AND COMPENSATION
City agrees to compensate Contractor for such services as shown below.
Contractor shall complete the work outlined above in accordance with the fees
schedule identified below and shall provide a monthly progress report and invoice to
the City based on the percentage of work completed.
TASKS DESCRIPTION F E E S
ONE PALM SPRINGS:
Pre-Application Processing and Meetings, letter writing (20 hours) $ 2,500-00
Applicant/City Meetings, including DRC (30 hours) $ 3,750.00
Coordination with applicant, project engineer& architect (24 hours) $ 3,000-00
Project Analysis, transmittals, coordination, completeness review
& correspondence (32 hours) $ 4,000.00
CEQA review and analysis, preparation of Initial Study (60 hours) $ 7,500-00
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
Attendance at two community meetings and two AAC meetings (24 hours)$ 2,000.00
PC & CC Hearings Preparation & Attendance (2 Hearings) $ 2,250,00
Administrative Support (40 hours) $ 1,600-00
Subtotal $ 32,950.00
Reimbursables'
Misc. Printing $ 1,000.00
Misc. Office. Postage, telephone, FAX, photocopies, etc. $ 500,00
Subtotal $ 1,500.00
ONE PALM SPRINGS - CONTRACT $ 34,450.00
1. Reimbursables are estimates and will be billed on a cost basis with
supporting documents attached to subject invoices.
PA 06-013-"One Palm Springs"-Terra Nova Planning &Research, Inc. -- Contract Page 18 of 18
r �
L --d TERRA NOVA PLANNING & RESEARCH, INC.
August 10, 2006 �Y O ` C" f"_) yQ �
Mr. Tom 7. Wilson T O (1
Assistant City Manager, Development Services �� O YIC 1 oQ#n Sf zw;r
City of Palm Springs ((]]
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
RE: Focused Entitlement, Delgrano 1 & II (2 sites, north and south of Amado, on Avenida
Caballeros)
Dear Tom.-
Understanding of the Project
The Delgrano projects consist of two sites, one at the southeast corner of Amado Road and
Avenida Calalleros (Delgrano I), and one on the northeast comer of Amado Road and Avenida
Caballeroos.
o"6 R&CVn �
Delgrane--I proposes the construction of approximately 235 condominium units on multiple
floors on a leased-land parcel. A formal application has not been received, but a Pre-Application
request has been submitted. A Planned Development Permit and Tract Map are the likely
entitlements for this project.
belgtaRo-ZI proposes the construction of 81 condominiums on approximately 7 acres. Major
Architectural Review and Tentative Tract Map applications have been received.
Although the projects are different, similar tasks are anticipated. Each of the projects' scope of
nrork and budget is enumerated separately below. �y!
_Drlgxauo ><. � ^J2 P 1st a,�, xA 474-011.3
❑ 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 comtents and conditions of approval.
L Y
Mr.Tom Wilson
August 10,2006
Page 2 of S
❑ 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 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 up to two Community Meetings.
❑ Attend one Development Review Committee (City staff review) meeting for the proposed
project.
❑ Present item to two meetings 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 from the Section 14 Master Plan and
1 IR.
❑ 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 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.
�`ar
Mr.Tom Wilson
August 10,2006
Page 3 of
Budget
Staff Time Amount
Pre-Application Processing and Meetings, letter writing (20 hours) $ 2,500.00
Applicant/City Meetings, including DRC (30 hours) $ 3,7.50.00
Coordination with applicant, project engineer& architect (24 hours) $ 3,000.00
Project Analysis,transmittals, coordination, completeness review
&correspondence (32 hours) $ 4,000.00
CEQA review and analysis, preparation of Initial Study(60 hours) $ 7,500,00
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
Attendance at two community meetings and two AAC meetings (24 hours)$ 2,000.00
PC & CC Hearings Preparation & Attendance (2 Hearings) $ 2,250.00
Administrative Support (40 hours) $ 1,600,00
Subtotal $ 32,950.00
Reimburseablest
Misc. Printing $ 1,000,00
Misc. Office: Postage, telephone, FAX, photocopies, etc_ $ 500.00
Subtotal $ 1,500.00
Total Budget $ 34,450.00
1. Rcunbursables are estimates and will be billed on a cost basis.
MINUTE ORDER NO.
APPROVING A CONTRACT AGREEMENT WITH
TERRA NOVA PLANNING & RESEARCH, INC. FOR
FOCUSED ENTITLEMENT AND PLANNING
SERVICES FOR THE ONE PALM SPRINGS
PROJECT PA 06-013 FOR THE PROPOSED
CONSTRUCTION OF 226+ MULTIPLE-STORY
CONDOMINIUM UNITS ON A LEASED-LAND
PARCEL AT THE SOUTHEAST CORNER OF EAST
AMADO ROAD AND NORTH AVENIDA
CABALLEROS, IN THE CITY OF PALM SPRINGS,
CALIFORNIA
I HEREBY CERTIFY that this Minute Order, approving a contract
agreement with Terra Nova Planning & Research, Inc. for Focused
Entitlement and Planning Services for One Palm Springs, Project No.
PA 06-013 not to exceed $34,450.00, was adopted by the City Council
of the City of Palm Springs, California, in a meeting which was held on
the day of October, 2006.
JAMES THOMPSON
City Clerk