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Home My WebLink About05301 - MSA CONSULTING SERVICES FOCUS ENTITLEMENT SERVICES FOR PALM SPRINGS ART COLONY i CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT—AMENDMENT No. 1 For Additional Planning and Entitlement in the Completion of the Focused Entitlement Services Contract A 5301 for Palm Springs Art Colony Project 5.1113-PD-329/ 3.2903 THIS AMENDMENT #1 TO THE ORIGINAL CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this vE &.iAY 2008, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and MSA CONSULTING, INC.(herein "Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of the original Agreement#A5301 dated June 19,2006 and this Amendment#1, the Contractor declares that all services have been provided as specified in the original Agreement and those outlined in the attached "Authorization for Additional Services" for the Palm Springs Art Colony Project dated April 2, 2007 (attached hereto as Exhibit "A" ) . 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 Amendment #1, the terms of the original Agreement shall govern. 1.3 Compliance with Law_ All services rendered hereunder have been or are being 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 and all services of this Agreement/Contract are in the process of completion in accordance with all terms and conditions outlined in the original Agreement. 1.4 Additional Services. Contactors warrants that all additional services of this Amendment No. 1 have been fulfilled and completed as specified in the Additional Services for the Palm Springs Art Colony (Exhibit "A"). 2.0 COMPENSATION 5.111$P.S.Art Colony—MSACon5vitng Contract Amendrmntg1 Page 9 of 5 2.1 Contract Sum. For the services rendered pursuant to this Amendment No. 1 the Contractor shall be compensated in accordance with the "Schedule of Compensation"attached hereto as Exhibit"B"and incorporated herein by this reference, but not exceeding the maximum contract amount of THIRTEEN THOUSAND EIGHT HUNDRED NINETY AND 09/ DOLLARS ($13,890.09) herein "Contract Sum")- All funds have been paid to the City of Palm Springs by Del Mar Properties and Burnett Development and are being held on deposit pending approval of[his Amendment. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above- CITY OF PALM SPRINGS a municipal corporation B� ti r g win irectorof Planning ATTEST: J gY• By: :2 - / �� ity Clerk p5'I+�Iy4O8 David H. Ready, Manager APPROVED, TO FORM a of CITY COUNCIL —A 0 By:*torn/ey/ I I $.1113 P.S.Art Colony—1 Consulting ContmCf Amendment#1 Page 2 of 5 p I i CONTRACTOR: MSA Consulting, Inc. Check One: 34200 Bob Hope Drive _individual_Partnership?Corporation - Rancho Mirage, CA 92270 Corporations require two notarized signatures, one From A and one from B: A. Chairman of Board, President, or any Vice President: and B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer). Signature (notarized) Signature (notarized) Name: "bare S. Smith Name: Michael Oehlbaum Y TItie: Presidcne Title: Chief Financial. O££icer Address: 3n2oo Bob Hope Drive Address: 34200 Bob Hope Drive Rancho Mirage, CA �2270 Rancho Mirage, CA 92270 State of California ) County of Riverside ) ss State of California ) County of Riverside )ss On #725-La Of before me, 2-5- _ y o y before me, SandraS.Fnx personally On �/" appeared known to me(or proved to me on the 5andraS.Fox personally basis of satisfactory evidence)to be the person appeared known to me(or proved to me on the whose name is subscribed to the within basis of salisfactory evidence)to be the person instrument and acknowledged to me that he whose name is subscribed to the within executed the same in his authorized capacity, instrument and acknowledged to me that he and that by his signature on the instrument the executed the same in his authorized capacity, person, or the entity upon behalf of which the and that by his signature on the instrument the person acted, executed the instrument. person, or the entity upon behalf of which the person acted, executed the instrument. 1A11Tt tFCC my i,anri anri nfni ial coal WITNESS my hand and official seat- Notary Signatu 9L n �� Notary Signature —f1•i Q Notary Seal: Notary Seal: SANdRA S.FOX SANM S.FOX CarruNulon#F 167456$ _ CgmYWp1 16745" Notary pubft-CuRbM Nalay pu4Nc•Cdltalnta WvMlcw C RIvNMIb Casty MVComm.W*ftJunl2.201 MyCORM 00"J n 12,201 5.1113 P.S.Art Colony-MSA Consulting Contract Amendment 41 Page 3 of 5 0 EXHIBIT"A" —AMENDMENT#1 SCOPE OF SERVICES AND SCHEDULE OF PERFORMANCE Consultant has completed the services outlined in the original Agreement/Contract A5301 and the Additional Services outlined in the attached Authorization for Additional Services Performed for the Palm Springs Art Colony Project 5.1113-PD-329/3.2903 on the 15 + acre development at the south side of Racquet Club Road and North Palm Canyon Drive & North Indian Canyon Drive, Attached Marked Exhibit A—Amendment#1 I 5.1113 P.S.Art Colony—MSA Consulting Cenlr.3ut Amendment#1 Page 4 of 5 PLANNING 0 CIVIL ENGINEERFNG ■ LAND SURVEYING AUTHORIZATIONFOR ADWHONAL SERVICE CLIENT: City of Palm Springs JOB NUMBER: 1821.30 (RFP No. 1716) ADDRESS: 3200 East Tahquitz Canyon Way DATE REC'D: April2, 2007 Palm Springs, California 92262 ORDERED BY: Craig A.Ewing,AICP FIRM: City of Palm Springs TELEPIIONE: 760-323-8245 ATTN: Craig Ewing c/o Loretta Moffett FAX: 760-322-8360 M LL TO: Same As Above PO NUMBER: ESTIMATE AMOUNT: CONTRACT AMOUNT: $13,890.09 Amendment to Contract: No. 5.1113 PD-329/3.2903 TIME & MATERIALS: Dated: 06?6?006 PROJECT LOCATION: The Palm Spriu;s Art Colon -/Southside of Racquet Club Dr between N. Palm Canyon Dr &Indian Canyon Dr, Palms Springs (15+/- acres) SCOPE OF SERVICES TO BE PROVIDED: Additional Planning & Entitlement Services: 1, Provide additional work related to project complexity and project revisions. 2. Attend Staff/Client meetings (up to 3) as required for the presentation and adoption of the project. 3. Assist City of Palm Springs with the preparation of modifications to the staff report, findings and resolutions for the City Council. 4. Attend public meetings with the City Council (up to 2) as required for adoption of the project. REMARKS: This authorization request is intended to increase the existing contract aniouat of$25,000 to $38,890.09. We anderstatttl that the trill be receivitzg a clzauge order for biding ptztposeS. MSA CONSULTING, INC. AUTHORIZED BY: PROJECT MANAGER: Margo M. Thibeault,AICP TITLE.: PREPARED BY: MMT:dv FJRIUI. DATE: April 10,2008 DATE: Gr 2�3 6�; PLEASE NOTE: Payinent for Professional Services rendered shall he due UPON PRESENTATION OF INVOICE. Except as otherwiseprovided by written agreement, a charge of one and one halfpercent(1.5%)per month will be added after 30 days fr-on+date of(noise. Should legal action beconee necessary to enforce the rerms of this agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs. The proposed Agreement. both Scope and Fee, contained herein, Shall be valid until Mat,15. 2008.ALL TERMS AND CONDITIONS OF 0 KIR EZUTING AGREEMENT SAILL APPLY. i ` I R,CgepnynuNYhNmlwmltL�CEwlnpJl1011lonal FE EWA CC.O"_W.Goe 34200 Boo Hops DRIVE PI RANCIIO MIRAGE 9 CALIFORNIA■ 92270 760-320-9811 r 760-323-7993 FAX 9 www,MSACONSULTINGINC.COM EXHIBIT "B" —AMENDMENT#1 SCHEDULE OF COMPENSATION Client agrees to compensate Consultant for such services as shown below, and Consultant has completed all work outlined in the original Agreement/Contract and those listed as Additional Services in accordance with the fee schedule identified below and has invoiced Client accordingly. Additional Services performed, 9. Provided additional work related to project complexity and project revisions. 2. Attended staff/client meetings as required for the presentation and adoption of the project. 3. Assisted the City of Palm springs with preparation of modifications to the staff report, findings, and resolution for the Cily Council. 4. Attended public meeting with the City Council as required for the adoption of the project. TOTAL ADDITIONAL SERVICES $ 13,890.09 I �I 5.1113 P.S.Arl Colony—MSA Consulting ContractAmendmcni 4l Page 5 of 5 MSA consultant for focus entitlement services A5301 Palm Spring Art Colony MO 7871 06-07-06 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR: "Focused Entitlement Services for PALM SPRINGS ART COLONY (PrimeUrban, agent for Del Mar Properties 1, LLC, owner. Project No. 5.1113-PD-329 / 3.2903 THIS CONT ACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into _ _-0J'__ Li70P✓ ,2006, by and between the CITY OF PALM SPRINGS, a municipal corpdration, (herein "City") and MSA CONSULTING, INC. (herein "Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the"Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the"services"or"work"hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase"highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 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 any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and 5.1113 P.S.Art Colony—MSA Consulting Contract Page 1 of 19 G�Fi~�C�/OGo �u�au��i�.CuJ`�h'e9T hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiaritvwith 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. 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 5.1113 P.S.Art Colony—MSA Consulting Contract Page 2 of 19 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 Contractorwill 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 Compensation" attached hereto as Exhibit"C"and incorporated herein by this reference, but not exceeding the maximum contract amount of THIRTY-NINE THOUSAND AND NO 100/DOLLARS ($39,000.00) 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 for attending said meetings. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates, that Contractor shall not be entitled to additional compensation therefore, and the provisions of Section 1.8 shall not be applicable for such services. THE MAXIMUM AMOUNT OF CITY'S OBLIGATION UNDER THIS SECTION 2.1 IS THE AMOUNT SPECIFIED HEREIN. IF THE CITY'S MAXIMUM OBLIGATION IS REACHED BEFORE THE CONTRACTOR'S SERVICES UNDER THIS AGREEMENT ARE COMPLETED, CONTRACTOR WILL NEVERTHELESS COMPLETE THE SERVICES WITHOUT LIABILITY ON THE CITY'S PART FOR FURTHER PAYMENT BEYOND THE MAXIMUM AMOUNT. 5.1113 P.S.Art Colony—MSA Consulting Contract Page 3 of 19 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 later than the first (1 st) working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice with all supporting documents for reimbursable expenses. 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 "Schedule of Performance" attached hereto as Exhibit"D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, but not exceeding 180 days. 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, except as otherwise provided in the 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 Contractor authorized 5.1113 P.S.Art Colony—MSA Consulting Contract Page 4 of 19 to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Margo Thibeault, AICP Director of Planning Services and Project Manager MSA Consulting, Inc. 760-320- 9811 ph — 760..323-7893 fax mthibeault@msaconsultinginc.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 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 5.1113 P.S.Art Colony—MSA Consulting Contract Page 5 of 19 Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control 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 any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of a least$1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name the City of Palm Springs as an additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185) or equivalent language. The Commercial General Liability Insurance shall name the City, its officers, employees and agents as additional insured. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of$1,000,000 bodily injury and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars. 5.1113 P.S.Art Colony—MSA Consulting Contract Page 6 of 19 (d) Additional Insurance. Additional limits and coverages, which may include professional liability insurance, will be specified in Exhibit "B". All of the above policies of insurance shall be primary insurance. (Reference Section 5.4 regarding sufficiency.) The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, endorsements or appropriate insurance 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 for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or person for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, Penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities")that may be; asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay 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 there from; (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 5.1113 P.S.Art Colony—MSA Consulting Contract Page 7 of 19 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 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. 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. 5.1113 P.S.Art Colony—MSA Consulting Contract Page 8 of 19 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 oiher 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 there from. 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. 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 5.1113 P.S.Ail Colony—MSA Consulting Contract Page 9 of 19 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 appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of (waived — see Exhibit "B") as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit "D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Priorto 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, 5.1113 P.S.Art Colony—MSA Consulting Contract Page 10 of 19 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 maybe 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 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 such fees shall be deemed to have accrued on cornmencement 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. 5.1113 P.S.Art Colony—MSA Consulting Contract Page 11 of 19 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under 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 Planning Services Director, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this 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 5.1113 P.S.Art Colony—MSA Consulting Contract Page 12 of 19 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 Xity Clerk David H. Read City Manager APPROVED By CITY COUNCIL APPRO�/E � p S TO FORM �0 y > I City Attor ey 5.11'13 P.S.Art Colony—MSA Consulting Contract Page 13 of 19 CONTRACTOR: MSA Consulting, Inc. Check One: 34200 Bob Hope Drive _Individual_Partnership XKorporation 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). a Signature (notarized) Signature (notarized) Name: Robert S. Smith NameMichael Oehlbaum Title: President Title: Chief Financial Officer Address: 34200 Bob Hope Drive Address: 34200 Bob Hope Drive Rancho Mirage, CA 92270 Rancho Mirage, CA 92270 California California State of—Rie State of } County of v / }ss County o ��}ss On - Cal Z/�(p before me, On ��/ ri before me e n urp y personally Chery�Ann FiurP y personally appeared Robert S. Smith appeared Michael Oehlbaum personally known to me (or proved to me on the personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within whose name(s) is/are subscribed to the within instrument and acknowledged to me that instrument and acknowledged to me that he/she/they executed the same in his/her/their he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s),or the signature(s)on the instrument the person(s), 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 i / Notary Signatu e: ( .� � Signature: Notary Seal: Notary Seal: orrEcvu,sr�r! �� s µ \ , Comm - i �2 Notary FUJAC•Ca5€ mi.n 629UEic51DE co➢,rl �, V� 1 iP10 Y• c , My Comm¢<sion Fxp j¢ hlnas} Euc�lw e _IFEP,RUA¢2e 4u„r�OD ii� I?,Ee/CVc�O�P F ,111 ' 6„ ....� .,. mt�rv./Co ¢ ¢sae s:¢ IrLsmpn 5.1113 P S. Art Colony-MSA Consulting Contract Page 14 of 19 EXHIBIT "A" SCOPE OF SERVICES Consultant agrees to perform the following Scope of Services for the City of Palm Springs, hereinafter called the "City"for the development Palm Springs Art Colony, a proposed mixed- use residential and retail development on 15+ acres on the south side of Racquet Club Road between North Palm Canyon Drive and North Indian Canyon Drive, (2400 North Palm Canyon Drive) Project No. 5.1113-PD-329 / 3.2903, hereinafter referred to as "Project". PRELIMINARY SERVICES: Environmental Processing 1. Initial Study a) Prepare an Initial Study(IS) in accordance with the California Environmental Quality 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 a) Coordinate with other City Departments and sub-consultants to prepare written responses to comments received during the public review period b) Submit written response to City for review and comment. 4. Mitigation Monitorinq 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). 5. 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. 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. 5.1113 P.S.Art Colony— VISA Consulting Contract Page 15 of 19 Staff Report Preparation and Assistance: 1, Staff Reports a) Assist City with preparation of a draft staff report, findings and resolution for the DEIR and 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 DEIR and project for the City Council incorporating any modifications made by the Planning Commission action. d) Attend public meetings with the Planning Commission (up to 2) as required for the 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 presentation and adoption of the Negative Declaration and Project adoption. f) Attend public meetings with the Planning Commission (up to 2) as required for the presentation and adoption of the final EIR and the Project. g) Attend public meetings with the City Council (up to 2) as required for the presentation and adoption of the final EIR and Project adoption. Exclusions Consulting services relating to any of the following tasks may be completed by Consultant 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. Client will require any construction contractors to indemnify Consultant from any and 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 Consultant in performing its services under this agreement. Client will require that the construction contractors add Consultant as an additional insured in the comprehensive general liability, auto liability, worker's compensation and builder risk insurance coverages required by Client. 5,11113 P.S.Art Colony— VISA Consulting Contract Page 16 of 19 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. 5.1113 P.S.Art Colony—MSA Consulting Contract Page 17 of 19 EXHIBIT "C" SCHEDULE OF COMPENSATION Client agrees to compensate Consultant for such services as follows: Consultant shall complete the work outlined above in accordance with the fees schedule identified below and shall invoice Client on a monthly basis on the percentage of completion. TASK DESCRIPTION F E E S Environmental Processing 'I — 7 Initial Study/ NOD / Meetings $ 12,500.00 Staff Report Preparation and Assistance 1 Staff Report, Resolutions / Meetings $ 25 000.00 SUB-TOTAL —ALL TASKS $ 37,500.00 ---------- Reimbursables Supporting documents to be provided with subject invoice. Estimated not to exceed $ 1,500.00 GRAND TOTAL —ALL TASKS AND REIMBURSABLES $ 39,000.00 The proposed fees outlined in this Contract 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, estimated not to exceed $1,500.00. Non- contract services, if requested, would be charged hourly and include meetings, special data transfers or construction support services. Scheduling for the Work will commence upon receipt of a signed copy of this Contract Agreement and a deposit in the amount of $5,000.00, which will serve to acknowledge approval of the terms contained herein. Progress billings will be forwarded to the Client on a monthly basis. These billings will include the fees earned for the billing period plus all direct costs advanced by Consultant. 5.1113 P.S.Art Colony—MSA Consulting Contract Page 18 of 19 EXHIBIT "D" SCHEDULE OF PERFORMANCE Palm Springs Art Colony Schedule TASK DAYS FROM TO Submit Contract to City for review and adoption 59 days 03/07/06 05/04/06 City Review of Contract 36 days 03/07/06 04/11/06 Submit revised schedule for City Review 'I day 04/24/06 04/24/06 Applicant submits application to the City for processing 'I day 04/28/06 04/28/06 City Council Approval of Contract 1 day 05/03/06 05/03/06 Authorization from City to Proceed 1 day 05/04/06 05/04/06 Entitlement Processing 168 days 05/05/06 10/19/06 City Initiates SB 18 review Process 90 days 05/05/06 08/02/06 City Development Review Committee 1 day 08/03/06 08/03/06 "Inform applicant of Special Studies Needs (Traffic, Noise, Air Quality)" 1 day 08/04/06 08/06/06 Prepare Special Studies 75 days 08/05/06 10/18/06 Prepare Initial Study & Notice of Intent to adopt a Negative Declaration 77 days 05/16/06 07/31/06 Neighborhood Meeting 1 day 05/18/06 05/18/06 City Review of Initial Study & Notice of Intent 8 days 08/01/06 08/08/06 Revise NOI based on City Comments 7 days 08/09/06 08/15/06 NOI Review Period (21 days) 21 days 08/16/06 09/05/06 Prepare Mitigation Monitoring and Reporting Program (MMRP) 7 days 08/16/06 08/22/06 Prepare Staff Report on Project 5 days 08/22/06 09/05/06 "City review of Negative Declaration, MMRP and staff report" 7 days 09/6/06 09/12/06 Planning Commission Hearing on Project 1 day 09/27/06 09/27/06 City Council Hearing on Project 1 day 10/18/06 10/18/06 Notice of Determination Filed 1 day 10/19/06 10/19/06 5.1113 P.S.Art Colony—MSA Consulting Contract Page 19 of 19 ,-CORD. CERTIFICATE OF LIABILITY INSURANCE DATE 06/08/2006 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION WEINGARTEN & HOUGH ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P. 0. BOX 1866 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PALM SPRINGS CA 92263- INSURERS AFFORDING COVERAGE INSURED INSURERA:SAFECO INSURANCE COMPANY MSA CONSULTING, INC. I INSURER NSURER C' 34200 BOB HOPE DR INSURER RANCHO MIRAGE CA 92270- INSURER COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED,NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR TYPE OF INSURANCE POLICY NUMBER POLICYFFFEC71VE POLICY EXPIRATION LIMITS LTR DATE MMIDDIYY DATE MMIDDIYY A GENERAL LIABILITY 01-CE-777447-71 05/16/2006 05/16/2007 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY FIRE DAMAGE(Anyone fire) S 200,000 CLAIMS MADE OCCUR / / / / MED FXP(Any one person) $ 5,000 CONTRACT LIAB.INC PERSONAL&AOV INJURY $ 1,000,000 X COMPL. CPS., BFPD / / / / GENERAL AGGREGATE $ 2,000,000 GENT AGGREGATE LIMIT APPLIES PER PRODUCTS-COMP/OP AGG S 2,000,000 X1 POUCYF_j JECOT LOG A AUTOMOBILE LIABILITY 01 CH 063689-10 05/16/2006 05/16/2007 COMBINED SINGLE LIMIT X ANY AUTO (Ea accident) $ 1,000,000 ALL OWNEDAUTOS / / / / BODILY INJURY SCHEDULEDAUTOS (Per person) $ X HIRED AUTOS / / / / BODILY INJURY X NON-OWNEDAUTOS (Per accident) $ X COMPREHE'NSIVE $500 DEDUCTIBLES ,/ / / / PROPERTY DAMAGE X COLLISION_ (Peracciden0 $ GARAGE LIABILITY AUTO ONLY-EA ACCIDENT S OTHER THAN EA ACC S AUTO ONLY: AGG $ A EXCESS LIABILITY 01-SU-281255-70 05/16/2006 05/16/2007 EACHOCCURRENCE $ 5,000,000 X OCCUR [CLAIMS MADE AGGREGATE $ 5,000,000 DEDUCTIBLE / / / / $ X RETENTION $10,000 $ WORKERS COMPENSATION AND / LA EMPLOYERS' WC EL EACH ACCIDENT $ LEI.DISEASE-EA EMPLOYEE$ E.L.DISEASE-POLICY LIMIT $ OTHER DESCRIPTION OF OPERA-f10NSILOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS ALL OPERATIONS OF THE NAMED INSURED FOR THE CERTIFICATE HOLDER. THE CITY OF PALM SPRINGS, ITS OFFICERS, EMPLOYERS AND AGENTS, AND THEIR RESPECTIVE INSURERS ARE ADDITIONAL INSURED. COVERAGE IS PRIMARY PER FORM CG 76 80. WAIVER OS SUBROGATION IS ]INCLUDED PER FORM CG 24 04. 10 DAY NOTICE OF CANCELLATION FOR NON-PAYMENT OF PREMIUM. CERTIFICATE HOLDER X I ADDITIONAL INSURED;INSURER LETTER: CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT THE CITY OF PALM SPRINGS FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE ATTN: LORETTA MOFFETT INSURER,ITS AGENTS OR REPRESENTATIVES 3200 E. TAHQUITZ CANYON WAY AUTHORIZED REPRESENTATIVE II PALM SPRINGS CA 92262- -CORD 25-S(7/97) U 1X ©ACORD CORPORATION 1988 ,mm INS025S(0010).01 ELECTRONIC LASER FORMS,INC.-(500)327-0545 Page 1 of 2 RECEIVED JUN 13 900fi. COMMERCIAL GENERAL LIABILITY CG 86 7410 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY CONTRACTORS LIABILITY PLUS ENDORSEMENT This endorsement modifies insurance under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person Or Organization: THE CITY OF PALM SPRINGS,ITS OFFICERS,EMPLOYERS AND AGENTS,AND THEIR RESPECTIVE INSURERS (1) The amount we will pay for damages is DUTY TO DEFEND limited as described in SECTION III- LIMITS OF INSURANCE; and Paragraph a.of SECTION I—COVERAGE A and COVERAGE B is replaced by the following: (2) Our right and duty to defend ends when we have used up the applicable limit of a. We will pay those sums that the insured becomes insurance in the payment of judgments of legally obligated to pay as damages because of settlements under COVERAGES A or B or "bodily injury", "property damage" or "personal medical expenses under COVERAGE C. injury and advertising injury" to which this insurance applies. We will have the right and No other obligation or liability to pay sums or perform duty to defend the insured against any "suit" acts or services is covered unless explicitly provided for seeking those damages. Our duty to defend under SUPPLEMENTARY PAYMENTS — begins once you notify us of a"suit" as described COVERAGES A AND B. in SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, 2.b. EMPLOYERS LLABLITY However, we will have no duty to defend the insured against any "suit" seeking damages for The last paragraph exclusion e. of SECTION I. — "bodily injury", "property damage", or "personal COVERAGE A is replaced by the following: injury or advertising injury" to which this insurance does not apply. We may, at our This exclusion does not apply to liability assumed by discretion, investigate any`occurrence" and settle the insured under an "insured contract" except for that any claim or"suit"that may result.But: part of a contract or agreement that indermrifres any person or organization for their sole liability. DCr CIVLT imi 1 9 Onni, WRONGFUL EVICTION The following exclusion is added to SECTION I — COVERAGE B: (3) The maintenance, operation or use by you of The wrongful eviction from, wrongful entry into, or equipment leased to you by such person or invasion of the right of private occupancy of a room, organization, subject to the following dwelling or premises arising out of any: additional provisions: (1) "property damage"to the room, dwelling (a) This insurance does not apply to any or premises;or "occurrence" which takes place after the equipment lease expires; (2) "bodily injury" sustained through occupancy of a room, dwelling or (b) This issuance does not apply to "bodily premises. injury" or "property damage" arising out of the sole negligence of such person or ADDITIONAL INSURED- BY WRITTEN CON- organization: TRACT, AGREEMENT OR PERMIT, OR SCHEDULE (4) Permits issued by any state or political subdivision with respect to operations The following paragraph is added to SECTION II-WHO performed by you or on your behalf, subject to IS AN INSURED: the following additional provision: 5. Any person or organization shown in the Schedule This insurance does not apply to "bodily or for whom you are required by written contract, injury," "property damage," "personal and agreement or permit to provide insurance is an advertising injury" arising out of operations insured, subject to the following additional performed for the state or municipality; provisions: a. The contract, agreement or permit must be in c. The insurance with respect to any architect, effect during the policy period shown in the engineer, or surveyor added as an insured by Declarations, and must have been executed this endorsement does not apply to "bodily prior to the"bodily injury," "property damage," injury," "property damage," "personal and "personal and advertising injury." advertising injury" arising out of the failure to render any professional services by or for you, b. The person or organization added as an insured including: by this endorsement is an insured only to the extent you are held liable due to: (1) The preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, (1) The ownership, maintenance or use of that surveys, change orders, designs or part of premises you own, rent, lease or specifications; and occupy, subject to the following additional provisions: (2) Supervisory, inspection or engineering services. (a) This insurance does not apply to any "occurrence" which takes place after d. This insurance does not apply to "bodily you cease to be a tenant in any injury" or "property damage" included within premises leased to or rented to you; the"products-completed operations hazard." (b) This insurance does not apply to any e. A person's or organization's status as an structural alterations, new con- insured under this endorsement ends when st uclion or demolition operations your operations for that insured are completed. performed by or on behalf of the person or organization added as an f. No coverage will be provided if, in the insured; absence of this endorsement, no liability would be imposed by law on you. Coverage (2) Your ongoing operations for that insured, shall be limited to the extent of your whether the work is performed by you or negligence or fault according to the applicable for you; principles of comparative fault. pp F vpn in 1 3 700h g. The defense of any claim or "suit" must be tendered as soon as practicable to all other insurers which potentially provide insurance for such claim or"suit". h. The insurance provided will not exceed the lesser of: (1) The coverage and/or limits of this policy, or (2) The coverage and/or limits required by said contract,agreement or permit. RECEIVED JUN 13 70 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY CG 76 80 10 02 ADDITIONAL INSURED PRIMARY COVERAGE, COMMERCIAL GENERAL LIABILITY This insurance modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: THE CITY OF PALM SPRINGS,ITS OFFICERS,EMPLOYERS AND AGENTS,AND THEIR RESPECTIVE INSURERS (If no entry appears above,information required to complete this endorsement will be shown in the The insurance provided will not exceed the lessor Declarations as applicable to this endorsement). of: a. the coverage and/or limits of this policy, or (Section II)WHO IS AN INSURED is amended to b. the coverage and/or limits required by the include as an insured the person or organization shown contract, agreement, or permit in the Schedule subject to the following provisions. With respect to the insurance afforded the 1. The additional interest is an insured but only additional insured,paragraph 4. SECTION IV for liability directly resulting from: COMMERCIAL GENERAL LIABILITY CONDITIONS is deleted and replaced by the a.your ongoing operations for the additional following. insured whether the work is performed by you or for you, or 4. Other Insurance a. This insurance is primary and b The general supervision of your ongoing noncontributory, and our obligations are not operations by the additional insured. affected by any other insurance where the additional insured is the Named Insured, 2. This insurance does not apply to: whether primary, excess, contingent, or on any other basis; however,the defense of any claim a. "Bodily injury" or"property damage" or"suit"must be tendered as soon as arising out of any act or omission of, or for practicable to all other insurers which defects in design furnished by or for,the potentially provide insurance for such claim or additional insured or "suit". b. This additional provision applies only to b. "Bodily injury" or"property damage" the additional insured shown in the Schedule included within the"products-completed and the coverage provided by thisendorsement. operations hazard. A persons or organizations status as an insured under this endorsement ends when your operations for that insured are completed. No coverage will be provided if, in the absence of this endorsement,no liability would be imposed by law on you. Coverage shall be limited to the extent of your negligence or fault according to the applicable principals of comparative fault. nr nrr'n HIM 9 'I Unr. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART COMMERCIAL LIABILITY CATASTROPHE COVERAGE PART SCHEDULE Name of Person or Organization: THE CITY OF PALM SPRINGS, ITS OFFICERS, EMPLOYERS AND AGENTS, AND THEIR RESPECTIVE INSURERS (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) THE TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV — COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or"your work"done under a contract with that person or organization and included in the"products-completed operations hazard".This waiver applies only to the person or organization shown in the Schedule above. CG 24 04 10 93 Copyright, Insurance Services Office, Inc. 1992 RFr..FIVFn In 12 mirig Client#-27594 211119ACI._o ACORD.. CERTIFICATE OF LIABILITY INSURANCE 1,9;16ia5°"Y"' m bucm THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION „ HRH of Coachella Valley ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Insurance Services LIC I4511299 HOLDER,THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 77-564 Country Club Dt.,#401 Palm Desenl,CA 92211 INSURERS AFFORDING COVERAGE NAIC 0 itm"A: Preferred Employers Ins.Co. M$A Consulting,Inc. N9VRER B U200 Bob Hope Drive 'Rancho Migg4,CA 92270.0000 INSl1RER INSURER 11,D: MSURFJI E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICYPERIOO MCATE0,NOTWITHSTANDING ANYREOUIREMENT TERM OR CONORION OF ANY CONTRACT OR OTHER DOCVMITIT WITH RESPECT TO WHICH IRIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE MVRANCE AFFORDED By THE POLIOICS DEACRIBED HERFJN IS SUBJECT TO ALL THE TERMS.EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY RAVE BEEN REDUCED BY PAID CLAIMS. LTR NGR§ T1TE Cf 1lt6UIWICE rONCYNUMOER A Fl[PIRATrOI/ MITS rTENERAt LNe1LRY EACH OCCURRENCE f f}]MMERC4LQENERAI.VMIUTY O EN1F0 f �OAM WE1:1 OCCUR MEO pOP(4ymeoaeml f rExsavLAnfnx+nMY s GENERALAQGREGAIE f QENLAGGREQATE LIAR AFFUW PER: raooucTf-COMrAX..` S POLICY PRO. LOC AUTa'MfNNLLIJABMY COMBINED 81NOLEUPIT f AAVTO (EAAo0NI19 NY ALLOWNEDAUT05 SCHEDULEDAms I��yy 11�j Y i MIRED AUTO6 NCHOWNED AUTOS tpj,DI- S (Pfr i GAIWX I"$." AUTO@LY.EAACCNfNT s ANYAUTO criEJt Tryvf EA S MRV m, AGG i EXC913ANDRELLA LWIILITY EACH OCCURRENCE S O:CVR FJ CW W Mot AGGREGATE I f DIVUOTRU ! IU.7EN710II i f A WORXexs ompENsAmm mo WKNI122934 09/01/05 09/01/05 X1 lmmytwslWCiTA GTH. PMrLormrufoulr AM,pROpRN7oRRARrnFJUEYECIIrNE Ex.eAcnAoaoENT s1.000,000 ' OFFICER aWAEXCI.WED7 elvmAsE-EAewmae" S1,000,000 E'gGSPROXVQ I1L.PI3Eh$E-PQUcTLIM1T $1 000 000 01"m DEstannON of a'ERATM]NLl LOCATIONLIYEHICIFS/ExcLGgoNSAooEO rvPNofNLSEMEHTASPEauL ramALloNs 10 Day Notico for Hon-Payment of Premium Evidence of Insurance FAX-3224360 CERTIFICATE HOLDER CANCELLATION SHOIIIb ANYOF THE AnOVE 063CMBm"uoti aE CANCEufo enew THE EIA-MATtom Cloy of PAlm Springs DATERAMWOF,TM=VINQRISURE WLLENDEAVOILTOMAIL A_ DAYSWRTUN P.O.Box 2743 NOTICE YO'RCCFRTIfiCAYE NOtbEA NAMED YOY„p fEFY,eVY YAwRETo 1p SO S,IALL Palm Springs,CA =63 a1POSE NO MUGATION OR LMBRITY OFANY RIND UPON THE INSURER Iff AGENTS OR RdPF.rENTATIYEE. A RWRE6ENTATWE ACORD 25(2001108)1 of 1 NS200742IM198900 2AISS o ACORD CORPORATION 1906 LICENSE#0511289 ** TOTAL PRGE.01 * Best's Rating Center - Search Results Page 1 Page 1 of 2 w ti I try, d, r - w View Ratings:Financial Strength Issuer Credit Securities Advanced Search Other Web Centers:fSelect One Search Results Page 1 of 1 12 Rated and non-Rated companies found, results sorted by Company Name Criteria Used: Company Name: Company names starting with safeco To refine your search, please use our Advanced Search or view our Online Help for more information. Now Search safeco i View results starting with: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z P= Company Information Financial Strength Ratings Issuer Credit Ratings r Outlook/ . 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A.M.Best Worldwide Headquarters,Ambest Road,Oldwick, New Jersey,08858, U.S.A. littp://www3.ambest.com/ratings/RatingsSearch.asp 06/16/06 CONTRACT ABSTRACT Contract Company Name: MSA Consulting, Inc. Company Contact: Margo Thibeault, AICP Summary of Services: Focused Entitlement Planning Services Contract Price: $39,000.00 Funding Source: Del Mar Properties - $25,000 deposit received - Copy of Reimbursement Agreement attached for City signatures November 30, 2006 or not to exceed 180 days Contract Term: Contract Administration Lead Department: Planning Services Contract Administrator: Craig Ewing and Edward Robertson Contract Approvals Council/ Community Redevelopment City Council Agency Approval Date: June 7, 2006 Minute Order/ Resolution Number: MO 7871 Agreement No: A 5301 •.Contract Compliance Exhibits: A- Scope of Services; B-Special Requirements; C- Schedule of Compensation; D-Schedule of Performance Signatures: Robert Smith, President, Michael Oehlbaum, CFO Insurance: Safeco Ins. General, Auto ($1-2M) & Excess Liability-($5M); Preferred Employers Ins. Co. for Workers Comp ($1M) Bonds: Bonds Waived - See Exhibit "B" Contract prepared by: Loretta Moffett, for Craig Ewing, Dir. of Planning Services Submitted on: By: Note for File: The Del Mar Properties 1 , LLG (A5304) reimbursement agreement is attached for informational purposes. REIMBURSEMENT AGREEMENT PREPARATION OF FOCUSED ENTITLEMENT AND ENVIRONMENTAL PLANNING SERVICES for "PALM SPRINGS ART COLONY" (Project 5.1113-PD-329 / 3.2903) Del Mar Properties 1, LLC, Owner THIS REIMPURSEMENT AGREEMENT, hereinafter "Agreement", is entered into this 6\ the day of .AynL/ 2006, by and between the City of Palm Springs, a California charter city, the "City", and Del Mar Properties 1, LLC, hereinafter, the "Developer", with reference to the following facts and circumstances: RECITALS A. PrimeUrban, LLC, agent for Del Mar Properties 1 LLC, Owner & Developer, has applied to the City for approval of various development permits for the Palm Springs Art Colony Development Project 5.1113-PD-329 / 3.2903, 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 Planning, hereinafter "Director", and the Agent and Developer have agreed that it is necessary and desirable that the City engage MSA CONSULTING, INC. hereinafter, "Contractor", for focused entitlement and environmental planning services, 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 1." Director shall manage the Project work performed by Contractor. C. City, Agent for Developer, and Developer hereby agree that City shall engage Contractor to provide the services set forth in Exhibit "1" 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., 5.1113 P.S.Art Colony—City of P.S. Reimbursement Agreement Page 1 of 9 � n„ [jy��`"�1�,➢/0 R„aair u' t u=hTa�IIV� "CEQA") and the State Guidelines (14 California Code of Regulations section 15000 et seq., the "Guidelines") and the Palm Springs Municipal Code. 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 the City for the full cost ($39,000.00) of employing Contractor as provided in Exhibit "2" of this Agreement. b. Surcharges for Administrative Costs and Contingencies A maximum City administrative surcharge of twelve and one-half percent (12.5% _ $ 4,875.00) shall apply to this Agreement. The parties recognize that changes in the 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 full amount of this contract ($43,875.00) is due and payable as follows: (1) $25,000.00 at the time of signing this Agreement, or before June 15, 2006 whichever occurs first: (2) $18,875.00 on or before August 1, 2006; and (3) Additional costs as incurred and agreed to by all parties. 5 1113 P.S.Art Colony—city of P.S. Reimbursement Agreement Page 2 of 9 Developer shall honor all requests for payment submitted by the City for services of Contractor as stated above. 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 June 10, 2006 and continue through November 30, 2006, unless terminated pursuant to Paragraph 6 of Agreement. 6. Termination. Agreement shall terminate on November 30, 2006, 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 15% 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. 8. 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 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. 5.1113 P.S.Art Colony—City of P.S. Reimbursement Agreement Page 3 of 9 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 Agent for Mr. Brian H. Lucas Developer: PrimeUrban, LLC 511 East Santa Ana Blvd Santa Ana, CA 92701 5.1113 P.S.Art Colony—City of P S Reimbursement Agreement Page 4 of 9 Developer: Mr. C. Lynn Burnett Del Mar Properties 1, LLC, Owner 1300 Bristol Street North, Suite 200 Newport Beach, CA 92660 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. The City of Palm Springs ATTEST: ---- — '�i f gy did R Davea -'A.S� .. y �' ity Clerk City Manager rte : Developer, DEL MAR PROPERTIES 11, LLLC By: CA?;; Name: Title: Approved as to form: APPROVED BY CITY MANAGER I��pb�04� �Git1l� By: 11'r9l;� — Title: 5.1113 P.S Art Colony—City of P.S. Reimbursement Agreement Page 5 of 9 EXHIBIT "1" SCOPE OF SERVICES Contractor (MSA Consulting, Inc.) will perform the following Scope of Services for the Client (City of Palm Springs), hereinafter called the "City' for the Palm Springs Art Colony development, a proposed mixed-use residential and retail development on 15+ acres on the south side of Racquet Club Road between North Palm Canyon Drive and North Indian Canyon Drive, (2400 North Palm Canyon Drive) Project No. 5.1113-PD-329 / 3.2903, hereinafter referred to as "Project'. PRELIMINARY SERVICES: Environmental Processing 1. Initial Study a) Prepare an Initial Study (IS) in accordance with the California Environmental Quality 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 a) Coordinate with other City Departments and sub-consultants to prepare written responses to comments received during the public review period b) Submit written response to City for review and comment. 4. Mitigation Monitoring 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). 5. 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. 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 a) Assist City with preparation of a draft staff report, findings and resolution for the DEIR and project for the Planning Commission. 5.1113 P.S.Art Colony—City of P S. Reimbursement Agreement Page 6 of 9 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 DEIR and project for the City Council incorporating any modifications made by the Planning Commission action. d) Attend public meetings with the Planning Commission (up to 2) as required for the 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 presentation and adoption of the Negative Declaration and Project adoption. f) Attend public meetings with the Planning Commission (up to 2) as required for the presentation and adoption of the final EIR and the Project. g) Attend public meetings with the City Council (up to 2) as required for the presentation and adoption of the final EIR and Project adoption. Exclusions Contract 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. City Responsibilities 1. City shall provide access to the site. 2. City shall provide Preliminary Title Report and support documents as required. 3. City will require any construction contractors to indemnify Contractor from any and 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. City 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 City. 5.1113 P.S.Art Colony—City of P.S. Reimbursement Agreement Page 7 of 9 EXHIBIT "2" SCHEDULE OF COMPENSATION City agrees to compensate Contractor for such services as follows: Contractor shall complete the work outlined above in accordance with the fees schedule identified below and shall invoice City on a monthly basis on the percentage of completion. TASK DESCRIPTION F E E S Environmental Processing 1 — 7 Initial Study/NOD/Meetings $ 12,500.00 Staff Report Preparation and Assistance 1 Staff Report, Resolutions / Meetings $ 25 000.00 SUB-TOTAL—ALL TASKS $ 37,500.00 The proposed Contractor fees outlined above 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, estimated not to exceed$1,500.00(listed below). Non-contract services, if requested, would be charged hourly and include meetings, special data transfers or construction support services. Reimbursables Supporting documents to be provided with subject invoice. Estimated not to exceed $ 1,500.00 TOTAL— CONTRACTOR TASKS AND REIMBURSABLES $ 39,000.00 City Administrative Fees 12.5% $ 4,875.00 GRAND TOTAL OF ART COLONY/CITY OF PALM SPRINGS /MSA CONSULTING FEES AND COSTS $ 43,875.00 Scheduling for the Work will commence upon receipt of a signed copy of this Reimbursement Agreement and a deposit in the amount of$25,000.00 from Developer of the project, which will serve to acknowledge approval of the terms contained herein. 5.1113 P.S.Art Colony—City of RS Reimbursement Agreement Page 8 of 9 EXHIBIT"3" SCHEDULE OF PERFORMANCE by MSA CONSULTING, INC.for PALM SPRINGS ART COLONY TASK DAYS FROM TO Submit Contract to City for review and adoption 59 days 03/07/06 05/04/06 City Review of Contract 36 days 03/07/06 04/11/06 Submit revised schedule for City Review 1 day 04/24/06 04/24/06 Applicant submits application to the City for processing 1 day 04/28/06 04/28/06 City Council Approval of Contract 1 day 05/03/06 05/03/06 Authorization from City to Proceed 1 day 05/04/06 05/04/06 Entitlement Processing 168 days 05/05/06 10/19/06 City Initiates SB 18 review Process 90 days 05/05/06 08/02/06 City Development Review Committee 1 day 08/03/06 08/03/06 "Inform applicant of Special Studies Needs (Traffic, Noise, Air Quality)" 1 day 08/04/06 08/06/06 Prepare Special Studies 75 days 08/05/06 10/18/06 Prepare Initial Study&Notice of Intent to adopt a Negative Declaration 77 days 05/16/06 07/31/06 Neighborhood Meeting 1 day 05/18/06 05/18/06 City Review of Initial Study& Notice of Intent 8 days 08/01/06 08/08/06 Revise NOI based on City Comments 7 days 08/09/06 08/15/06 NO[ Review Period (21 days) 21 days 08/16/06 09/05/06 Prepare Mitigation Monitoring and Reporting Program (MMRP) 7 days 08/16/06 08/22/06 Prepare Staff Report on Project 5 days 08/22/06 09/05/06 "City review of Negative Declaration, MMRP and staff report" 7 days 09/6/06 09/12/06 Planning Commission Hearing on Project 1 day 09/27/06 09/27/06 City Council Hearing on Project 1 day 10/18/06 10/18/06 Notice of Determination Filed 1 day 10/19/06 10/19/06 5.1113 P.S.Art Colony-City of P.S. Reimbursement Agreement Page 9 of 9