HomeMy WebLinkAboutA5333 - PALM SPRINGS COUNTRY CLUB NORTH & SOUTH VILLAGES FOCUSED ENTITLEMENT SVCS i
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT
FOR: "Focused Entitlement Services" for
PALM SPRINGS COUNTRY CLUB— NORTH & SOUTH VILLAGES
Project No. 5.1119-PD-330
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made
and entered into this �Wr&Ql Y a 2006, by and between the CITY
OF PALM SPRINGS, a municipal corporation, (herein referred to as"City")and MSA
CONSULTING, 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 o�rvices. 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 bythis 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 [his 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 Contractors 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 foranyfees,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.
®R6uNAL 60
AND/OR AGRZE MMENT,
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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 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 maybe 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..
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.
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1.10 Res onsible to Ci . 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 withoutthe express approval of
the Contract Officer nor shall the Contractor take direction from the applicant or the
applicant's representative.
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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 Compensation" attached hereto as Exhibit "C" and incorporated herein by this
reference, but not exceeding the maximum contract amount of SIXTY-SEVEN
THOUSAND AND NO/100 DOLLARS($67 000.00)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 Compensation, but not exceeding
the Contract Sum or(iv)such other methods as may be specified in the Schedule of
Compensation. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, telephone expense, transportation expense
approved by the Contract Officer in advance, and no other expenses and only if
specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Contractor at all project meetings reasonably deemed necessary by
the City; Contractor shall not be entitled to any additional compensation forattending
said meetings. Contractor hereby acknowledges that it accepts the risk that the
services to be provided pursuant to the Scope of Services maybe 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 AGREEMENT ARE COMPLETED, CONTRACTOR WILL NEVERTHELESS
COMPLETE THE SERVICES WITHOUT LIABILITY ON THE CITY'S PART FOR
FURTHER PAYMENT BEYOND THE MAXIMUM AMOUNT.
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2.2 Method of Payment_ Unless some other method of payment is
specified in the Schedule of Compensation, in any month in which Contractor wishes
to receive payment, no laterthan 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 reimbursable$
prior to 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 Performance" attached hereto as Exhibit "D", if any, and
incorporated herein by this reference. When requested bythe 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 April 1, 2007.
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 neg➢igence 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,
except as otherwise provided in the Entitlement Processing - Schedule of
Performance (Exhibit"D").
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
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Contractor authorized to act in its behalf with respect to the work specified herein and
make all decisions in connection therewith:
(Mrs.) Frances Chung, Project Manager
MSA Consulting, Inc-,
Phone: 760-320-9811
Fax: 760-323-7893
FChung@MSAConsultingine.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,
whetherfor the benefit of creditors or otherwise,without the prior written approval of
City. Transfers restricted hereunder shall include the transferto any person orgroup
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
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subcontract with a person or entity that is not a Local Subcontractor, the Contractor
P rtY
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.A Independent_Contractor. Neither the City nor any of its Ti
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. Contractorshall
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 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,
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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 Citywith
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 an p g y 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:
(a)Contractorwill defend any action oractions 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 any judgment rendered against
the City, its officers, agents or employees for any such claims or liabilities arising out
of or in connection with the negligent performance of or failure to perform such work,
operations or activities of Contractor hereunder; and Contractor agrees to save and
' hold the City, its officers, agents, and employees harmless therefrom;
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(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 j
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 re uirement waived —see EXHIBIT `B"
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 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 notify the 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.
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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
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.
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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 parry's right Lo take legal action in the event that the
dispute is not cured, provided that nothing herein shall limit City's orthe Contractor's
right to terminate this Agreement without cause pursuant to Section 7.8.
T3 Retention of Funds. Contractor hereby authorizes C'Ityto 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 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 rightto deduct orto
withhold shall not, however, affect the obligations of the Contractor to insure,
indemnify, and protect City as elsewhere provided herein. j
7A 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 parry's consent to or approval of any act by the other
party requiring the parry's consent or approval shall not be deemed to waive or render
unnecessary the other parry's consent to or approval of any subsequent act. Any i
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.
T5 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 maytake 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 ❑amages. 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"13")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"b"). The City may withhold from any monies payable on account of services
performed by the Contractor any accrued liquidated damages.
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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 anytime,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 priorto the effective date of the notice of termination and for
any services authorized by the Contract Officer thereafter in accordance with the j
Schedule of 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 forthe 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 forthe 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. Attorneys fees shall include attorney's fees on any
appeal, and in addition a party entitled to attorney's fees shall be entitled to all other
reasonable costs for investigating such action,taking depositions and discovery and
all other necessary costs the court allows which are incurred in such litigation. All
such fees shall be deemed to have accrued on commencement of such action and
shall be enforceable whether or not such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees_ No officer or
employee of the City shall be personally liable to the Contractor, or any successor in
5.1119 PSCC—MSA Consulting,Inc.Contract Page 11 of 20
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interest, in the event of any default or breach by the City or for any amoun
t which
may become due to the Contractor orto 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,director 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 j
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 parry 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 oranyother 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 Agreement. This Agreement may be amended at any time by the
mutual consent of the parties by an instrument in writing.
9.4 Severabilitv. 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
5.1119 PSCC--MSA Consulting,Inc.Contract Page 12 of 20
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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 j
party, (iii) by so executing this Agreement, such party is formally bound to the j
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.
I
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 '
ty Clerk David H. Ready
City Manager
APPROVED�, 70 APPROVED BY CfrY COUNCIL
S� FORM
By: // //�iv�✓
City A Forney
5.1119 PSCC—MSA Consulting, Inc.Contract Page Iaof 20
CONTRACTOR: MSA CONSULTING, INC. Check One:
34200 Bob Hope Drive _Individual_Partnership X Corporation
Rancho Mirage, CA 92270
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).
/ r
By: ( By:
Signatu a (notarized) Signature(notarized)
I
;
Rohert S. Smith Michael oehlhaum
Name: Name: �
• Title- president Title: Chief Financial officer
I
Address: 34-200 Sob 24ope Drive Address: 34-200 Soh Hope Drive
Rancho Mirage, CA 92270 Rancho Mirage, CA 92270
• State of California } State of California }
County of Riverside)ss County of Riverside}ss
On u.5 A1w4 2.3, 200& before me, On_4 q_ f a_3 . -7 o u L before me
sands s- Fox personally sonar personally
appeared Robert s. smith appeared Michael Cchlbaum
personally known to me (or proved to me on the personally known to me
basis of satisfactory evidence)to be the person(s) _e_.c ==M:"aete ::Jell_ to be the person(
whose name(s) is/are subscribed to the within whose names} Ware-subscribed to the within
instrument and acknowledged to me that instrument and acknowledged to me that
helshe/they executed the same in his/her/their he/44eA4ey executed the same in his/heN4'e_*
authorized capacity(ies), and that by his/her/their authorized capacity", and that by hisiher/their
Signature(s)on the instrument the person(s),or the signature(&�on the instrument the person*,or the
entity upon behalf of which the person(s) acted, entity upon behalf of which the person(s�acted,
executed the instrument. executed the instrument.
WITNESS my hand and official seal. WITNESS my hand and official seal.
Notary f Notary ,A J.
��
Signatur WL�-- . �,I( Signature- LC/2.d.. �Q
Notary Seal: Notary Seal:
WADRA i.FOX SANDRA S.FOX
c4mm idon•1674563 _ CommNdon N 167A363
No"Pubic-CdA0040RMfNM CW W • ��Y►ubic-CoNromla
Rhtemid►County -
MVCo11Mt1.Upkiftjut 12.201 MVComm.Upirnuun 12.201
5.1119 PSCC—MSA Consulting, Inc. Contract Page 14 of 20
EXHIBIT "A"
SCOPE OF SERVICES
PRELIMINARY SERVICES:
I
Contractor agrees to perform the following Scope of Services forthe City of Palm Springs,
(hereinafter referred to as the "City") for the development Palm Springs Country Club i
(hereinafter referred to as "Client") - a single-family development and golf community,
known as North and South Village. North Village is located on 35+acres lying easterly of
North Sunrise Way and northerly of Joyce Drive and South Village is located on 120+
acres lying northeasterly of North Farrell Drive and northerly of Verona Road in the City of
Palm Springs, California, hereinafter referred to as "Project":
Environmental Processing
i
1. Initial Stud �
a) Prepare an Initial Study(IS)in accordance with the California Environmental Quality j
Act(CEQA)_
b) Assist the City in the preparation of noticing and circulation of the IS_
c) Assist the City in the development of the project description, location map and list of
potential environmental impacts associated with the project.
2. Public Review and Comments Responses
F
i
a) Coordinate with other City Departments and sub-Contractors to prepare written 1
responses to comments received during the public review period I
b) Submit written response to City for review and comment_
3. Mitigation Monitorina and Reporting Program (MMRP)
a) Prepare a Mitigation Monitoring and Reporting Program to ensure the
implementation of mitigation measures identified to mitigate any potential adverse
environmental effects of the project.
b) Prepare a digital file of the MMRP for the City's website posting_
c) Provide documentation copies for distribution and public information requirements.
d) Upon adoption of a Negative Declaration, prepare and file a Notice of Determination
(NOD).
4. Public Meetings and Public Hearings
a) Meet with City staff to determine scope of special studies required_
b) Attend up to 2 neighborhood meetings.
c) Attend public meetings with the Planning Commission (up to 2)as required for the
presentation and adoption of the Negative Declaration and the Project.
5,1119 PSCC-MSA Consulting,Inc. Contract Page 15 of 20
d) Attend public meetings with the City Council (up to 2) as required for the
presentation and adoption of the Negative Declaration and Project adoption.
Staff Report Preparation and Assistance:
1. Staff Reports
i
a) Assist City with preparation of a draft staff report, findings and resolution for the
project for the Planning Commission.
b) Review draft staff report with Planning staff and other City Departments and
incorporate changes as necessary.
c) Assist City with preparation of a draft staff report, findings and resolutions for the i
project for the City Council incorporating any modifications made by the Planning j
Commission action.
d) Attend public meetings with the Planning Commission (up to 2) as required forthe
presentation and adoption of the Negative Declaration and the Project.
e) Attend public meetings with the City Council (up to 2) as required for the
presentalion and adoption of the Negative Declaration and Project adoption.
Exclusions
Consulting services relating to any of the following tasks may be completed by Contractor if
negotiated under a separate contract for an additional fee: are presently specifically
excluded from the Agreement:
1. Filing and posting fees
2. Meeting room rentals and set up costs.
3. Publication and noticing fees
Client Responsibilities
1. Client shall provide access to the site.
2. Client shall provide Preliminary Title Report and support documents as required.
3, Clientwill require anyconstructioncontractorsto indemnify Contractorfromanyand
all losses, damages, claims, expenses, including attorneys fees, and costs arising
out of the contractor's work, except only losses, damages, claims, expenses
including attorneys fees, and costs which are caused by the sole negligence or
willful misconduct of Contractor in performing its services under this Agreement.
Client will require that the construction contractors add Contractor as an additional
insured in the comprehensive general liability, auto liability,worker's compensation
and builder risk insurance coverages required by Client.
5,1119 PSCC—MSA Consulting,Inc.Contracl - Page 16 of 20
EXHIBIT "1311
SPECIAL REQUIREMENTS
I
City hereby waives Section 5.3 as a requirement of this Agreement.
City hereby waives Section 7.7 as a requirement of this Agreement.
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5.1119 PSCC—MSA Consulting, Inc.Contract Page 17 of20
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EXHIBIT "C"
SCHEDULE OF COMPENSATION
City agrees to compensate Contractor for such services as shown below. j
Contractor shall complete the work outlined above in accordance with the fees schedule
identified below and shall provide and progress report and invoice City on a monthly basis
on the percentage of completion. j
i
TASKS DESCRIPTION F E E S
Environmental Processing
1 -4 Initial Study/NOD/Meetings...........................................................$17,500
Staff Report Preparation and Assistance
i
1 Staff Report, Resolutions/Meetings ..............................................$48,500
Reimbursables
Reproduction costs, title company charges, special mailing charges,
application, and filing or permit fees, etc. *............................................... $3,000
total—All Tasks................................................................................... $67,000
The proposed fee would include all labor, materials and incidental expenses such as
vehicle mileage, postage, toll calls, CADD computer time, and survey materials. * Not
included are reproduction costs, title company charges, special mailing charges,
application, and filing or permit fees. Non-contract services, if requested, would be
charged hourly and Include meetings, special data transfers or construction support
services. Supporting documents for all reimbursables shall be submitted with each invoice
that contains charges for such expenses-
Scheduling for the work will commence upon receipt of a signed copy of this Contract
Agreement and a deposit in the amount of $10,000, which will serve to acknowledge
approval of the terms contained herein. Progress billings will be forwarded to the City on a
monthly basis. These billings will include the fees earned for the billing period plus all
direct costs advanced by Contractor.
5.1119 PSCC—MSA Consulting, Inc.Contract Page 18 of 20
EXHIBIT "D" roags,)
ENTITLEMENT PROCESS - SCHEDULE OF PERFORMANCE
CITYOF PALM SPRINGS
Pafm Springs Country CIu6
ENTITLEMENT PROCESSING-PRELIMINARY SCHEDULE
August 21,2006
td ia.k Rama 1 4.Ydim fvt 1 15n'aM1 Iv xe rbe az fy
f g� yr2 11f S Y2 !Yd &IN Y33 Y2 NI C'1 EYB ERS
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2 --Submit 661[ a to QW10rRevleW and Ado" 1dW-I - Tua OM: Tue a771f1A
35 deys Wed26 Ta 4111Y6
a Sv6mR FtrAwd Schedule to City jday he a27M6 Tua62N
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s Clty CoupviTAppro',al umha cmnuut ---- 1 day Wed W'arN. Wed SMAB
6 -' AuthomeLron from C". Premed -
7 t tlay Shu 471116 ThU 4RME
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e Entlllemenl Pronecinp 190 days Wed 7fl2'Oa Thu 3,'Y07 j
a Surm AAt{al'ratlon fn ProteseF3 t
dry Wed 7112106 Wed lftua 07
rn Send Letter o1 Com}Ye[enessl 46
lnosmplelenass _ 1[ay 7Le W72Y16. Tw Ar12'dv'
tt - SOM"re'h:sed Na[enals from At pllnent(.1 nmereiy) _ 30 days Thu 10.ri2'm Fn 1i75C175_
12 _ City Irrlazea 50 1B Flelnex Process 91 days Tue Ni P. :Mnn 1211 FIYI6
19 Attend Ocya op-nsat Pau=w Cumn tlex 1 day TO W10i'OB' Tuc Blf2NS
14 _ Inform Applicant u! cslel8[WWs Needs _ 1 dxy _ W&d W11 8: Wed RN a'a6
1s QL3In 8Pedal Studies Proposefa and Ex&DW.eCmkacts(ppra!�q _ 2days Wed 41&S Thu 421106
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25 Q-ty RaAaW of Negatt:a CedareCan,MMAP and Stall blepart 7 daysr TFra2)lM7 Wad2r7=
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5.1119—PS CC—NSA Corralling,1 nc.Cnntfad Pag a 19 of 20
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EXHIBIT Fiat' (PE992�
ENTITLEMENT PROCESS — SCHEDULE OF PERFORMANCE
CITY OF PALM SPRINGS
Palm Springs Country Club
ENTITLEMENT PROCESSING-PREL114INARY SCHEDULE
August2l,2Q06
J Au V3 5 M S'M E S 1 FaS µv'.TI 1
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5.1119—PSCC—PASA ConsuAlmg,Inc.Contract Page 20 of 20
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