HomeMy WebLinkAbout05480 - O & M INDIAN CANYON LLC REIMBURSEMENT AGR PREP OF FOCUSED ENTITLEMENT/ENVIRONMENTAL PLANNING SVCS r % Page \of 1
Kathie Hart
From: Loretta Moffett
Sent: January 30, 2008 10 11 AM oo
To: Kathie Hart
Cc: Craig Ewing; Edwaarrd obertson �° Q
Subject: Palm Ridge LLC Contract- Project 5.1145 -Stantec consurting Contract is ok to close —their consulting
is complete and is paid.
The O & M Indian Canyon for Hard Rock Project is also ok to close. contract with Terra Nova is
completed and paid /r r�,
10
Thanks for the reminders! '1"5 '
fetir
Admimstratwo Assrstant to
Assistant Cicy Mmtagsr-Deveiopmenr..Servlces
7G0-32 $ 6 phone
769-3227.483F0 fax �✓\'
Loretta.Moffett@palmsprings-ca.gov
Pis note new email address •
d 1,
02/04/08
PS bo
REIMBURSEMENT AGREEMENT
PREPARATION OF FOCUSED ENTITLEMENT
AND ENVIRONMENTAL PLANNING SERVICES
RE: The Hard Rock Hotel Project
THIS REIMBURSEMENT AGREEMENT, hereinafter "Agreement", is
entered into this L�gth day of h.E e y , 2007, by and between the
City of Palm Springs, a California charter city, the "City", and O & M Indian
Canyon LLC, hereinafter, the "Developer", with reference to the following facts
and circumstances:
RECITALS
A. Developer has applied to City for approval of various development
permits for the Hard Rock Hotel Development Proposal, referred to herein as
the "Project." The Project seeks all necessary City permits, approvals, and
environmental review-
B. Due to the magnitude and complexity of the Project, the Director
of the Planning, hereinafter "Director", and Developer have agreed that it is
necessary and desirable that City engage Terra Nova Planning & Research,
Inc. hereinafter, "Contractor", to prepare a Focused Entitlement and related
CEQA analyses as may be required, attend public hearings and meetings on
the Project, and perform related work, including appropriate planning services
as needed to ensure timely project review. Contractor shall perform the Scope
of Work specified in the professional services agreement between City and
Contractor, attached to this Agreement as "Exhibit A." Director shall manage
the Project work performed by Contractor.
C. City and Developer hereby agree that City shall engage
Contractor to provide the services set forth in Exhibit "A" of this Agreement.
D. A fundamental premise of this Agreement is that nothing herein
is to be construed as a representation, promise, or commitment on the part of
City to give special treatment to, or exercise its discretion favorably for the
Project, in exchange for Developer's obligation to reimburse City for the cost of
retaining Contractor.
E. City and Developer make this Agreement with full knowledge of
the requirements of state and local law, including, but not limited to the
California Environmental Quality Act of 1970 (Public Resources Code section
21000 et seq., "CEQA") and the State Guidelines (14 California Code of
Regulations section 15000 et seq., the "Guidelines") and the Palm Springs
Municipal Code.
Hard Rock Hotel—0&M Indian Canyon LLC Reimbursement Agreement Page 1 of 8
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL
PROMISES CONTAINED IN THIS AGREEMENT, DEVELOPER AND CITY
AGREE AS FOLLOWS:
1. Engagement of Contractor. City shall engage Contractor in
accordance with the professional services agreement identified as Exhibit 1 to
this Agreement. Contractor shall be responsible only to City, and nothing in this
Agreement imposes any obligation on City or Contractor to Developer other
than to devote the time and attention to preparing a legally adequate
environmental impact report for the Project and related work. City shall provide
direction and guidance to Contractor. Contractor's contact(s) with Developer
shall only be through Director or the Director's designees. Developer, its
agents, employees, consultants, representatives, or partners shall not contact
Contractor directly in any manner unless at a public hearing, meeting, or
workshop or as expressly authorized by the Director.
2. Reimbursement.
a. Contractor's Invoices
Developer shall reimburse City the full cost ($77,370.00) of
employing Contractor as provided in Exhibit "C" of this Agreement.
b. Surcharges for Administrative Costs and Contingencies
A maximum City administrative surcharge of twelve and one-half
percent (12.5%) ($9,671.25) shall apply to this Agreement.
The parties recognize that changes in scope of the work may be
necessitated during the process of preparing the requisite
documents and related studies. The Developer shall bear the
costs of such changes.
c. Reimbursement Procedures
The amount of this Agreement ($87,041.25) is payable as follows:
Payment in full of the $87.041.25 at time of signing this
Agreement is preferred; however, City will accept payments
of:
(1) $30,000.00 at the time of signing this Agreement, or
before April 13, 2007, whichever occurs first;
(2) $30,000.00 on or before June 15, 2007; and
(3) The balance of $27,04125 by August 15, 2007.
Hard Rock Hotel—0&M Indian Canyon LLC Reiml7ursement Agreement Page 2 of 8
(4) Additional costs as incurred and agreed to by all
parties.
Developer shall honor all requests for payment submitted by City
for services of Contractor performed before the date of termination
of Agreement. Failure to reimburse the City for costs as provided
in this Agreement shall be deemed a material breach of this
Agreement.
3. Relationship to Other Charges. Developer and City agree that the
expenditures associated with this Agreement are in addition to the standard
development application fees, as well as the hourly charge being reimbursed by
Developer for City planners working on the Project and for legal services.
4. No Promise or Representation. Developer and City agree that
nothing in this Agreement is to be construed as a representation, promise, or
commitment on the part of City to give special treatment to, or exercise its
discretion favorably for the Project, it being understood that Developer's
reimbursement obligation under Agreement is undertaken without regard to
City's actions regarding the Project.
5. Term. Agreement shall become effective upon signed and
continue through November 30, 2007, unless terminated pursuant to Paragraph
6 of Agreement.
6, Termination. Agreement shall terminate on November 30, 2007,
but may be terminated earlier by Developer or City, by giving thirty (30) days'
written notice to the other. Upon such termination, Developer shall immediately
pay any outstanding invoices, as well as pay for any work performed by
Contractor through effective date of termination. The City administrative
surcharge of 12.5% shall apply on outstanding invoices.
7. Entire Agreement. This Agreement and its attachments constitute
the entire agreement between the Developer and City respecting the matters
set forth herein. City and Developer each represent that neither has relied on
any promise, inducement, representation, or other statement made in
connection with Agreement that is not expressly contained herein.
& Negotiated Agreement. It is agreed and understood by Developer
and City that Agreement has been arrived at through negotiations and that
neither is deemed the party which prepared Agreement within the meaning of
Civil Code Section 1654,
9. Assignment. Neither City nor Developer shall have the right to
assign its respective rights and obligations hereunder without the written
consent of the other party. This Agreement shall be binding upon and inure to
Hard Rock Hotel—0&M Indian Canyon LLC Reimbursement Agreement Page 3 of 8
the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and assigns.
10. Amendment. This Agreement may be amended, modified, or
supplemented only in writing by both City and Developer.
11. Contracting Officer. The contracting officer of City, and the only
entity authorized by law to make or amend Agreement on behalf of City, is the
City Council of the City.
12. Waiver. The failure of a party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its right at
a later time to enforce the same. No waiver by a party of any condition or of
any breach of any term contained in this Agreement shall be effective unless in
writing, and no waiver in any one or more instances shall be deemed to be a
further or continuing waiver of any such condition or breach in any other
instance or a waiver of any other condition or breach of any other term.
13. Governing Law. This Agreement shall be construed, interpreted,
and applied in accordance with the laws of the State of California applicable to
commercial contracts entered into and to be performed wholly in California.
14. Construction. The language in all parts of this Agreement shall be
construed, in all cases, according to its fair meaning. The parties acknowledge
that each party has reviewed this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
15. Conflict with Professional Services Agreement between
Contractor and City. In the event of a conflict between the provisions of this
Agreement and the Professional Services Agreement between City and
Contractor, the provisions of this Agreement shall govern.
16, Relationship of Parties. The parties agree that this Agreement
establishes only a reimbursement arrangement between the parties, and that
the parties are not joint venturers or partners.
17, Indemnification. Developer agrees to defend, indemnify and hold
City harmless in any action brought by any third party in which the authority of
the City to enter into this Agreement or the validity of this Agreement is
challenged.
18. Notices. Notice to the parties in connection with this Agreement
shall be given personally or by regular mail addressed as follows:
City: Mr. Craig A. Ewing, AICP
Director of Planning Services
City of Palm Springs
PO Box 2743
Palm Springs, CA 92263-2743
Hard Rock Hotel—0&M Indian Canyon -LC Reimbursement Agreement Page 4 of 8
Developer: Mr. Rich Meaney
0 & M Indian Canyon LLC
1 Mac Arthur Place, Suite 300
Santa Ana, CA 92707
Notice shall be deemed effective at the time of personal delivery or
seventy-two (72) hours after mailing by certified mail, return receipt requested.
IN WITNESS WHEREOF, Developer and City have executed Agreement
to be effective on the date first above written.
CITY OF PALM SPRINGS
APPROVED BY CITY @WVAGER
1�5�l/rQ2tX'p t
��7Mf3• �E�G'$ 1 +�7 - By- /�
+gD David Ready
C� City Manager
O & M INDIAN CANYON, LLC
By:
atthew B. Kaufman
aretary
Ri eaney
Mem er
ATTEST:
City Clerk
:Approved as to form:
By;
TitlE
Hard Rock Hotel—0&M Indian Canyon LLC Reimbursement Agreement Page 5 of 8
EXHIBIT "A"
SCOPE OF SERVICES AND SCHEDULE OF PERFORMANCE
Consultant agrees to perform the following Scope of Services for a proposed
development of up to 250 hotel rooms and 250 residential condominiums on a 12
acre parcel at the southeast corner of Andreas Road and Calle El Segundo in the
City of Palm Springs.
The following outlines our scope of work and budget for the focused entitlement
process for the Hard Rock Hotel project. The budget assumes, as we discussed at the
meeting, the preparation of a Mitigated Negative Declaration, rather than a document
which tiers off the Section 14 Master Plan EIR. The steps in the process will include'
❑ Terra Nova shall coordinate with City and project designers and engineers to
secure application materials and project descriptions.
❑ Terra Nova shall review application materials for completeness, and make
presentation to City staff meetings regarding proposed project (three meetings).
Terra Nova shall issue completeness letter, incorporating comments from all City
departments as needed.
❑ Terra Nova shall prepare for and coordinate intra- and inter-agency distribution of
application materials for comment by same.
❑ Terra Nova shall complete an air quality analysis to include moving emissions and
fugitive dust generation for the construction and operation of the site. The applicant
will provide data on demolition and construction equipment and grading operations
as needed to complete the analysis.
❑ Terra Nova will contract for and manage a traffic study for the site, based on the
Section 14 Master Plan EIR traffic analysis. The study will include analysis of 6
intersections, assess current conditions, and prepare mid-day peak, PM peak and
daily trip generation expected as a result of project build-out. The impacts of
project traffic will be assessed in context, and recommendations for mitigation, if
required, will be made. The results of the analysis will be integrated into the
Environmental Assessment (EA), and the report included as an Appendix.
❑ Terra Nova will contract for and manage a noise study for the site. The survey will
analyze construction and operational noise generation associated with build-out of
the project. The analysis will include a comparison of future noise levels with and
without the project, and the impacts of ambient noise on sensitive receptors.
Recommendations for mitigation, if required, will be made. The results of the
survey will be integrated into the EA, and the report included as an Appendix.
❑ Terra Nova will contract for and manage a visual simulation (2 views) of the
proposed project, for discussion and inclusion into the EA document. Views are
likely to be in the southeast and southwest directions.
Hard Rock Hotel—0&M Indian Canyon LLC Reimbursement Agreement Page 6 of 8
❑ Terra Nova shall complete the EA and associated discussions in a format
acceptable to City staff, and submit screen check for their review. The EA shall
include all required sections of the checklist and associated exhibits.
❑ City staff shall review the screen check/administrative copy of Draft EA prior to its
being finalized, and Terra Nova shall amend the screen check draft accordingly.
❑ Terra Nova shall print and distribute the EA to the City's responsible agencies list.
❑ Terra Nova shall prepare response to comments as necessary for inclusion in
Planning Commission and City Council packets. A total of Len (1) hours is included
for this task. Any additional time needed to complete the response to comments
will be billed on a time and materials basis.
❑ Terra Nova shall coordinate the publication and posting of the Notice of Intent,
Notice of Determination and other CEQA postings as required with the City. The
City will be responsible for publishing and posting all such notices.
❑ Terra Nova will analyze project submittals, coordinate with City departments,
outside agencies, etc., and prepare staff reports, resolutions and conditions of
approval as needed or AAC, Planning Commission and City Council.
❑ Terra Nova will attend public meetings and hearings for project as needed. A total
of six (6) public meetings have been assumed. Additional meetings will be billed on
a time and materials basis.
a Terra Nova may coordinate directly with the project proponent and engineer, City
staff, and others as appropriate.
Hard Rook Hotel—0&M Indian Canyon LLC Reimbursement Agreement Page 7 of 8
EXHIBIT "C"
SCHEDULE OF 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
Hard Rock Hotel Project
Contract Items Amount
Consultation/Meetings/Coordination
(City, Applicant, internal) (40 hrs.) $ 4,400.00
Data Collection, Application Review, Coordination
&Analysis (48 hrs.) $ 6,000.00
CEQA EA Documentation and Drafting (80 hrs.) $ 8,800.00
Response to Comments (10 hrs.) $ 1,250,00
AAC, PC & CC Staff Reports, Resos., Conditions (36 hrs.) $ 4,500.00
Preparation for and attendance at 6 public
meetings/hearings (40 hours) $ 5,000.00
Preparation &Transmittal of Initial Study NOI, NOD,
Public Notices, etc. (16 hours) $ 1,520.00
Administrative Support $ 1,600.00
Subtotal $ 33,070.00
Special Tasks
'Includes Terra Nova staff hours and subcontract management, analysis, and
documentation.
Traffic Impact Analysis $ 18,200.00
Noise Impact Analysis $ 7,500.00
Visual Simulation (2 views) $ 9,200.00
Air Quality Impact Analysis $ 3,800.00
Subtotal $ 38,700,00
Reimbursables:
(Supporting documents will be attached to subject invoice when presented)
CAD Drafting and Misc. Exhibit Preparation $ 1,100.00
Miscellaneous and Document Printing $ 2,500.00
Misc. Office: Postage, telephone, FAX, photocopies, etc. $ 2,000.00
Subtotal $ 5,600.00
Total Terra Nova Contract $ 77,370.00
Planning Services Administrative Fees 12.5% $ 9.671.25
TOTAL REIMBURSEMENT AGREEMENT $ 87,041.25
Hard Rock Hotel—0&M Indian Canyon LLC Reimbursement Agreement Page 8 of 8