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HomeMy WebLinkAbout2006-03-15 STAFF REPORTS 2L 04 PAIM sr V N y y 4c `Yy City Council Staff Report C''�CI FORN\� DATE: March 15, 2006 CONSENT AGENDA SUBJECT: APPROVING AN AGREEMENT WITH TERRA NOVA PLANNING & RESEARCH, INC. FOR "FOCUSED ENTITLEMENT AND EIR" PLANNING SERVICES FOR THE HARD ROCK HOTEL — NEXUS DEVELOPMENT PROJECT OF UP TO 250 HOTEL ROOMS AND 250 RESIDENTIAL CONDOMINIUMS ON APPROXIMATELY 12 ACRES AT THE SOUTHEAST CORNER OF ANDREAS ROAD AND CALLE EL SEGUNDO IN THE CITY OF PALM SPRINGS. FROM: David H. Ready, City Manager BY: Thomas J. Wilson, Assistant City Manager— Development Services SUMMARY ' Staff is requesting that the Council approve an agreement with Terra Nova Planning & Research, Inc. to provide to the City's Planning Department "Focused Entitlement and EIR" Planning services for the Hard Rock Hotel — Nexus Development Project, a proposed development of up to 250 hotel rooms and 250 residential condominiums on approximately 12 acres at the southeast corner of Andreas Road and Calle El Segundo in the City of Palm Springs will not exceed $77,370.00 which will be paid to the City by Nexus Development Corporation. RECOMMENDATION: 1) Adopt Minute Order No. approving an agreement with Terra Nova Planning & Research, Inc, for "Focused Entitlement and EIR" Planning services for the "Hard Rock Hotel" Project, which project will not exceed $77,370.00. 2) Authorize the City Manager to execute all necessary documents in a form acceptable to the City Attorney. Item No. n . L. STAFF ANALYSIS: Nexus Development has filed an application with the City for "Hard Rock Hotel", a proposed development of up to 250 hotel rooms and 250 residential condominiums on approximately 12 acres at the southeast corner of Andreas Road and Calle El Segundo in the City of Palm Springs and has agreed to pay the Cityfor the full costs of those services. 'The City has received a proposal from Terrace Nova Planning & Research, Inc. (copy attached)to provide these services forthe"Hard Rock Hotel—Nexus Development", not to exceed $77,370.00 Staff is recommending that Terra Nova Planning& Research, Inc. retained to provide forthe City's Planning Department the "Focused Entitlement and EIR" Planning services for this project. FISCAL IMPACT: Finance Director Review: 'There is no fiscal impact to the City as the applicant has agreed to reimburse the City for all costs involved in this project. Thomas J. Wils i Assistant City anager—Development Services David H. Ready City Manager Attachments: 1. Minute Order 2. Terra Nova Planning & Research, Inc. Contract Proposal Page 2 of 2 MINUTE ORDER NO. ' APPROVING AN AGREEMENT WITH TERRA NOVA PLANNING & RESEARCH, INC. FOR "FOCUSED ENTITLEMENT AND EIR" PLANNING SERVICES FOR THE HARD ROCK HOTEL — NEXUS DEVELOPMENT PROJECT OF UP TO 250 HOTEL ROOMS AND 250 RESIDENTIAL • CONDOMINIUMS ON APPROXIMATELY 12 ACRES AT THE SOUTHEAST CORNER OF ANDREAS ROAD AND CALLE EL SEGUNDO IN THE CITY OF PALM SPRINGS. I HEREBY CERTIFY that this Minute Order, approving an agreement with Terra Nova Planning & Research, Inc. "Focused Entitlement and EIR" Planning Services for the "Hard Rock Hotel — Nexus Development Project, not to exceed $77,370.00, was adopted by the City Council of the City of Palm Springs, California, in a meeting which was held on the day of March, 2006. JAMES THOMPSON City Clerk CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR: Focused Entitlement AND EIR Planning Services i for the Hard Rock Hotel — Nexus Development Project THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this , by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and Terra Nova Planning & Research, ' Inc., (Herein "Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,the Contractor shall provide those services specified in the"Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services"or"work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 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 hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor(a) has thoroughly investigated and considered the scope of services to be i Hard Rock Hotel—Nexus Development -Terra Nova Contract 1 of 17 performed, (b) has carefully considered how the services should be performed, and (c)fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Contractor shall 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 Officerto 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 conflict between the provisions of Exhibit"B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 1.10 Responsible to City. Contractor acknowledges and agrees that the work and services the Contractor will produce for the City, including any initial study, screen check draft environmental impact report, draft environmental impact report, and final environmental impact report, will be prepared in strict and full compliance with the California Environmental Quality Act and the Environmental Quality Act Guidelines Hard Rock Hotel—Nexus Development -Terra Nova Contract 2 of 17 (collectively, the"Law"). Contractor further acknowledges and agrees that, consistent with the requirements of the Law, all documents that Contractor prepares must reflect the independent judgment of the City. All work performed and all work product produced shall be subject to review, revision, and approval of the Contract Officer and the final environmental impact report, including the draft environmental impact report, comments thereto, and all related responses to comments, will be subject to approval by the City Council. In addition, Contractor shall not meet with or discuss the work, services, or the contents of any work product with the applicant or a representative of the applicant without the express approval of the Contract Officer nor shall the Contractortake 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 SEVENTY—SEVEN THOUSAND, THREE HUNDRED SEVENTY AND NO/100 DOLLARS ($77,370.00) 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. 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. 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. Hard Rock Hotel—Nexus Development -Terra Nova Contract 3 of 17 ' 3.0 PERFORMANCE SCHEDULE ' 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit"A", 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 one year six months (18 months). 3.3 Force Maieure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God I 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 "A"). 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Nicole Sauviat Criste, Project Manager/ Principal Terra Nova Planning & Research, Inc. 760-320-9040 Phone — 760-322-2760 Fax It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Hard Rock Hotel—Nexus Development -Terra Nova Contract 4 of 17 4.2 Contract Officer. The Contract Officer shall be such personas maybe 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 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 Hard Rock Hotel—Nexus Development -Terra Nova Contract 5 of 17 I i become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of a least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name the City of Palm Springs as an additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185) or equivalent language. The Commercial General Liability Insurance shall name the City, its officers, employees and agents as additional insured. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of$1,000,000 bodily injury and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars. (d)Additional Insurance. Additional limits and coverages, which may include professional liability insurance, will be specified in Exhibit "B". All of the above policies of insurance shall be primary insurance. (Reference Section 5.4 regarding sufficiency.) The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, endorsements or appropriate insurance 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 Hard Rock Hotel—Nexus Development -Terra Nova Contract 6 of 17 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) Contractorwill promptly pay anyjudgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "B" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City ("City Manager") due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Contractor shall have the right to appeal a 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. Hard Rock Hotel—Nexus Development -Terra Nova Contract 7 of 17 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. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have : access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services underthis Agreement shall not be released publiclywithout the priorwritten 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 Hard Rock Hotel—Nexus Development -Terra Nova Contract 8 of 17 in relation to this Agreement shall be instituted in the Superior Court of the County of ' Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10)days of service of such notice and completes the cure of such default within forty-five(45)days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all • amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appearto be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct 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. Hard Rock Hotel—Nexus Development -Terra Nova Contract 9 of 17 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of (waived — see Exhibit "B") as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit "A"). The City may withhold from any monies payable on account of services performed bythe Contractorany accrued liquidated damages. 7.8 Termination Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty(30)days'written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60)days'written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of 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 forthe purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. 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 commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. Hard Rock Hotel—Nexus Development -Terra Nova Contract 10 of 17 8 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under 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, Hard Rock Hotel—Nexus Development -Terra Nova Contract 11 of 17 clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either partyof the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii)they are • duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS ATTEST: a municipal corporation By: By: City Clerk David H. Ready City Manager APPROVED AS TO FORM By: City Attorney Hard Rock Hotel—Nexus Development -Terra Nova Contract 12 of 17 I CONTRACTOR: Terra Nova Planning & Research, Inc. Check One: 400 South Farrell, Suit B-205 _Individual_Partnership_Corporation Palm Springs, CA 92262 Corporations require two notarized signatures, one from A and one from B: A. Chairman of Board, President, or any Vice President: and B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer). By: By: Signature (notarized) Signature (notarized) Name: Name: Title: Title: Address: Address: State of } State of } County of }ss County of }ss On before me, On before me personally personally appeared appeared personally known to me (or proved to me on personally known to me (or proved to me on the basis of satisfactory evidence) to be the the basis of satisfactory evidence) to be the person(s)whose name(s)is/are subscribed to person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me the within instrument and acknowledged to me tthat he/she/they executed the same in that he/she/they executed the same in his/her/their authorized capacity(ies), and that his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of the person(s), or the entity upon behalf of which the person(s) acted, executed the which the person(s) acted, executed the instrument. instrument. WITNESS my hand and official seal. WITNESS my hand and official seal. Notary Notary ;signature: Signature: Notary Seal: Notary Seal: Hard Rock Hotel—Nexus Development -Terra Nova Contract 13 of 17 I EXHIBIT "A" SCOPE OF SERVICES AND SCHEDULE OF PERFORMANCE Consultant agrees to perform the following Scope of Services for a proposed development of • up to 250 hotel rooms and 250 residential condominiums on a 12 acre parcel at the southeast ' corner of Andreas Road and Calle El Segundo in the City of Palm Springs. The following outlines our scope of work and budget for the focused entitlement process for the • Hard Rock Hotel project. The budget assumes,as we discussed at the meeting,the preparation of a Mitigated Negative Declaration, rather than a document which tiers off the Section 14 Master Plan EIR. The steps in the process will include: ❑ Terra Nova shall coordinate with City and project designers and engineers to secure application materials and project descriptions. ❑ Terra Nova shall review application materials for completeness, and make presentation to City staff meetings regarding proposed project (three meetings). Terra Nova shall issue completeness letter, incorporating comments from all City departments as needed. ❑ Terra Nova shall prepare for and coordinate intra-and inter-agency distribution of application materials for comment by same. ❑ Terra Nova shall complete an air quality analysis to include moving emissions and fugitive dust generation for the construction and operation of the site. The applicant will provide data on demolition and construction equipment and grading operations as needed to complete the analysis. ❑ Terra Nova will contract for and manage a traffic study for the site, based on the Section 14 Master Plan EIR traffic analysis. The study will include analysis of 6 intersections, assess current conditions, and prepare mid-day peak, PM peak and daily trip generation expected as a result of project build-out.The impacts of project traffic will be assessed in context,and recommendations for mitigation, if required,will be made. The results of the analysis will be integrated into the Environmental Assessment(EA), and the report included as an Appendix. ❑ Terra Nova will contract for and manage a noise study for the site. The survey will analyze construction and operational noise generation associated with build-out of the project. The analysis will include a comparison of future noise levels with and without the project, and the impacts of ambient noise on sensitive receptors. Recommendations for mitigation, if required, will be made. The results of the survey will be integrated into the EA, and the report included as an Appendix. ❑ Terra Nova will contract for and manage a visual simulation (2 views) of the proposed project, for discussion and inclusion into the EA document. Views are likely to be in the southeast and southwest directions. ❑ Terra Nova shall complete the EA and associated discussions in a format acceptable to City staff, and submit screen check for their review. The EA shall include all required sections of the checklist and associated exhibits. Hard Rock Hotel—Nexus Development -Terra Nova Contract 14 of 17 ❑ City staff shall review the screen check/administrative copy of Draft EA prior to its being finalized, and Terra Nova shall amend the screen check draft accordingly. ❑ Terra Nova shall print and distribute the EA to the City's responsible agencies list. ❑ Terra Nova shall prepare response to comments as necessary for inclusion in Planning Commission and City Council packets. A total of 10 hours is included for this task. Any additional time needed to complete the response to comments will be billed on a time and materials basis. ❑ Terra Nova shall coordinate the publication and posting of the Notice of Intent, Notice of Determination and other CEQA postings as required with the City. The City will be responsible for publishing and posting all such notices. ❑ Terra Nova will analyze project submittals, coordinate with City departments, outside agencies, etc., and prepare staff reports, resolutions and conditions of approval as needed or AAC, Planning Commission and City Council. ❑ Terra Nova will attend public meetings and hearings for project as needed.A total of 6 public meetings have been assumed. Additional meetings will be billed on a time and materials basis. ❑ Terra Nova may coordinate directly with the project proponent and engineer, City staff, and others as appropriate. (Exhibit B follows on page 16) Hard Rock Hotel—Nexus Development -Terra Nova Contract 15 of 17 EXHIBIT "B" SPECIAL REQUIREMENTS City hereby waives Section 5.3 as a requirement of this Agreement. City hereby waives Section 7.7 as a requirement of this Agreement. (Exhibit "C" follows on page 17) Hard Rock Hotel—Nexus Development -Terra Nova Contract 16 of 17 EXHIBIT "C" SCHEDULE OF COMPENSATION Client agrees to compensate Contractor for such services as shown below. Contractor shall complete the work outlined above in accordance with the fee schedule identified below and shall invoice Client on a monthly basis on the percentage of completion and include all supporting documents for reimbursable expenses. Preliminary Focused Entitlement Budget Hard Rock Hotel Project Contract Items Amount Cons ultation/Meetings/Coord i nation (City, Applicant, internal) (40 hrs.) $ 4,400.00 Data Collection, Application Review, Coordination &Analysis (48 hrs.) $ 6,000.00 CEQA EA Documentation and Drafting (80 hrs.) $ 8,800.00 Response to Comments (10 hrs.) $ 1,250.00 AAC, PC & CC Staff Reports, Resos., Conditions (36 hrs.) $ 4,500.00 Preparation for and attendance at 6 public meetings/hearings (40 hours) $ 5,000.00 Preparation & Transmittal of Initial Study NOI, NOD, Public Notices, etc. (16 hours) $ 1,520.00 Administrative Support $ 1,600.00 Subtotal $ 33,070.00 Special Tasks 'Includes Terra Nova staff hours and subcontract management, analysis, and documentation. Traffic Impact Analysis $ 18,200.00 Noise Impact Analysis $ 7,500.00 Visual Simulation (2 views) $ 9,200.00 Air Quality Impact Analysis $ 3,800.00 Subtotal $ 38,700.00 Reimbursables: CAD Drafting and Misc. Exhibit Preparation $ 1,100.00 Miscellaneous and Document Printing $ 2,500.00 Misc. Office: Postage, telephone, FAX, photocopies, etc. $ 2,000.00 Subtotal $ 5,600.00 Total $ 77,370.00 Hard Rock Hotel—Nexus Development -Terra Nova Contract 17 of 17