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HomeMy WebLinkAbout05123 - MSA CONSULTING INC EIR STUDY MMRP SPECIAL STUDIES CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT AMENDMENT No. 1 FOR: ENVIRONMENTAL SERVICES for South Palm Canyon Project 5.1042-PD-311 /TTM 33514 THIS CONTRACT SERVICES AGREEMENT AMENDMENT #1 (herein "Agree- ment"), is made and entered into this i m^ _ ? 2007, 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—Amendment#1 1.1 Scope o� f Services. In compliance with all terms and conditions of this Agreement, the Contractor has provided 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 Amendment to the original 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 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 5,1042 So Palm Canyon—MSA Consulting Page 1 of 15 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 five percent (5%) 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 apart hereof are set forth in the"Special Requirements" attached hereto as Exhibit"B"and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 1.10 Responsible to City. Contractor acknowledges and agrees that the work and services the Contractor will produce for the City, including any initial study, screen check draft environmental Impact report, draft environmental impact report, and final environmental impact report,will be prepared in strict and full compliance with the California Environmental Quality Act and the Environmental Quality Act Guidelines (collectively, the "Law"). Contractor further acknowledges and agrees that, consistent with the requirements of the Law, all documents that Contractor prepares must reflect the independent judgment of the City. All work performed and all work product produced shall be subject to review, revision, and approval of the Contract Officer and the final environmental impact report, including the draft environmental impact report, comments thereto, and all related responses to comments, will be subject to approval by the City Council. In addition, 5.1042 So Palm Canyon—MSA Consulting Page 2 of 15 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 SEVEN THOUSAND ELEVEN AND 05/100 DOLLARS ($7,011.05)herein "Contract Sum") inclusive of the provisions outlined 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 AGREEMENTARE 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 (1st) working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor has completed all services pursuant to this Agreement. 5.1042 So Palm Canyon—MSA Consulting Page 3 of 15 3.3 Force Majeure. 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 sale 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 has been completed by the Contractor. 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: Michelle Witherspoon MSA Consulting, Inc. 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. 42 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 5 1042 So Palm Canyon—MSA Consulting Page 4 of 15 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 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. 5.1042 So Palm Canyon—MSA Consulting Page 5 of 15 (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 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 sale 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 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; 5.1042 So Palm Canyon—MSA Consulting Page 6 of 15 (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 aftorneys' 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. 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 5.1042 So Palm Canyon—MSA Consulting Page 7 of 15 of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the 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 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 5.1042 So Palm Canyon—MSA Consulting Page 8 of 15 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 "6") 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 by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with 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 5.1042 So Palm Canyon—MSA Consulting Page 9 of 15 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 Attorn�. 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. 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 Aaainst 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 5.1042 So Palm Canyon—MSA Consulting Page 10 of 15 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-p, 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 provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date-first written above. CITY OF PALM SPRINGS ATTEST: - a municipal corporation By: ity Clerk David H. Ready City Manager APPR A FOR ! By I rney }. APPROVED BY CITY COUNC IL /} 5 1042 So Palm Canyon—MSA Consulting Page 11 of 15 CONTRACTOR: MSA Consulting, Inc. Check One: 34200 Bob Hope Drive _Individual_Partnershipv//�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). By: .� By Signature(notarized) Signature (notarized) Name: Robert S- Smith Name: Michael oehlha= Title: Presiden L- Title: Chief Financial officer Address: 34200 Sob Hope Drive Address: 34200 Bob Hope Drive Rancho Mirage, CA 92270 Rancho Mirage, CA 92270 State of cali4ornia } State of California I County of Riverside }55 County of Riverside Iss On April 9, 2007 before me, On April 9, 2007 before me Sandra S- Pox personally Sandra S. Fox personally appeared Robert S- Smith appeared Michael oehlhawn 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 pers0n(5) acted, executed the instrument. executed the instrument. WITNESS my hand and official seal. WITNESS my hand and official seal. Notary '^ tL Notary �� Signature: G�. � �)[ Signature- (L Notary Seal: Notary Seal: SANDRAS.FOX 61111 1S,FOX Cannmlwlart*1674W CarrnllNon*1674M Fbkay Pupil-can mm Y Pubic•Cal lomm RIwNrM County 111 - Courilly jQ'MyCw=.EII Ju 12,201 1O.CimiftepajunI2.201 5 1042 So Palm Canyon— VISA Consulling Page 12 of 15 ',k���ss"0.v'1:a•ru�ngw'i'_ w,.��'�fsx�t�� ;.��,:a�r.:}.a.-.":.r :i..-. .. .7-e.�.,a�.�.c...,Ai:x.�."ir�7 ,mow.'.':i.,1[ e. 'Ea)^:.Z•it .� ,...�x•'.+i �T 7'ia I;,,n__. "�rG'-':'.y'sH:'+sJ±7ua"�c�'izss".-rxx.:k-+"ca:�•.i,.�.ra �l�rw.'^�;r1ar.�w Ni..�„"v�:. ��. � . ,�.H,:. EXHIBIT "A" SCOPE OF SERVICES AND SCHEDULE OF PERFORMANCE Consultant has completed all professional services agreed to In the Scope of Services for the South Palm Canyon, which services and reimbursables exceeded the original approved Agreement by the amount outlined in this Amendment#1 ($7,011.05)for a total Agreement of $112,011.82. 5.1042 So Palm Canyon—MSA Consulting Page 13 of 15 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. 5.1042 So Palm Canyon—MSA Consulting Page 14 of 15 EXHIBIT "C" SCHEDULE OF ADDITIONAL COMPENSATION Client agrees to compensate Consultant for such services as shown below. Consultant has completed all work outlined above in accordance with the fees schedule identified below and has invoiced Client for all costs and charges against this Agreement. TASKS DESCRIPTION ADDITIONAL FEES Final Costs for Professional Services and Reimbursables $ 7,011.05 which exceeded the original $105,000.00 Agreement A5123 approved by Council June 29, 2005. 5.1042 So Palm Canyon—MSA Consulting Page 15 of 15 MSA Consulting, Inc. Study EIR, MMRP Special Studies AGREEMENT #A5123 MO 7694 6-29-05 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR ENVIRONMENTAL SERVICES (The Palm Canyon Project) THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 1 st day of August, 2005, by and betweer. A6 CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and MSALksse }+ales, Inc., (herein "Contractor"). (The term Contractor includes professionals performing in-Yconsulting 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 tic) 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 bythis 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. ORIGINAL SIP AND/OR AGREEMENT i 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 j 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 five percent (5%) of the Contract Sum or $25,000, whichever is less, or in the time to perform of up to thirty (30) days 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 applyto 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 bythis reference. In the event of a conflict between the provisions of Exhibit"B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 1.10 Responsible to City. Contractor acknowledges and agrees that the work and services the Contractor will produce for the City, including any initial study, screen check draft environmental impact report, draft environmental impact report, and final environmental impact report, will be prepared in strict and full compliance with the California Environmental Quality Act and the Environmental Quality Act Guidelines (collectively, the"Law"). Contractor further acknowledges and agrees that, consistent with the requirements of the Law, all documents that Contractor prepares must reflect the independent judgment of the City. All work performed and all work product produced shall Lie 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 One Hundred Thousand and Five Dollars, ($105,000) (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 riot 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 II 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. 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 one hundred eighty (180) days cumulatively. 3.3 Force Mayeure. 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 to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Michelle Witherspoon 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 orentities 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 1, 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. (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 orwillful 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 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 orfailure 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 "A" or better in the most recent edition of Best Rating Guide, The Key Eating 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. 6A 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 requirefty this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released 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 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 to 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 underthis 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 patty'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 ($ ) 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 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 orwithout cause, upon thirty(30)days'written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter tirne 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 Contractorfor 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 commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 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 orassociation 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. 1 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, cllauses, 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 theinvalid 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. (SIGNATURES ON NEXT PAGES) 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 ity Jerk r pI A City Manager APPROVED AS �{ORM: APPROVED By CITY COUNLIL By: City Attorney Ca need-J."I CONTRACTOR: MSA Asseeietes (nc. Check one:_Individual_Partnership XCorporation 34200 Bob Hope Drive Rancho Mirage, CA 92270 Corporations require two notarized signatures,one from A and one from B: A.Chairman of Board,President,orany Vice President:and B. Secretary, Assistant Secretary,Treasurer,Assistant Treasurer,or ChiefFinancial Officer). By:_ 64401-1 By: Signature(notarized) Signature(notarized) Name:Robert S. Smith Name: Michael D. Oehlbaum Title: President Title: Chief Financial Officer Address: 34200 Bob Hope Dr Address:34200 Bob Hope Dr Rancho Mirage anc o Mirage CA 92270 California stateof California} State o Countyof Riversidelss Countyo iversi iP,ss 8/9/200f5 Sandra S. Fox, Notary 8/9/2005 Sandra S . Fox, Notary On-before me, O before me, personally appeared Robert S. Smith personally appeared Michael D. Oehlbaum personally known to me(or proved to me on the basis of personally known to me(or proved to me on the basis of satisfactory evidence) to be the person(s) whose satisfactory evidence) to be the person(s) whose name(s)is/are subscribed to the within instrument and name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by in his/her/their authorized capacity(ies), and that by his/her/theirsignature(s)on the instrumentthe person(s), his/her/theirsignature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, or the entity upon behalf of which the person(s) acted, executed the instrument. executed the instrument. WITNESS my hand and official seals. WITNESS my hand and official seal. Notary )/ Notary Signatures. a �L ���...JJJ 1� Signatw• L PL(L I4� Notary Seal: Notary Seal: SANDRA S.PDX SANORA S f•OX Cormtlssbn;M 1 _ _ - _ CorrxrYrelon 13e5660 Notary Fude -County a Y .-r' Notary Publl •C00offoo Rlversido County - Rlverskte County My Comm.Expires Apr 1,2006 tarty Comm.Expires Apr 1,2006 • 1 EXHIBIT "A" SCOPE OF SERVICES Consultant agrees to perform the following Scope of Services for The Palm Canyon, a proposed mixed use development on approximately 2.67 acres located on the north side of Ramon Road and between Indian Canyon Drive and South Palm Canyon Drive in the City of Palm Springs hereinafter referred to as "Project": 1) Initial Study/Notice of Preparation a) Prepare Initial Study and Notice of Preparation (NOP). b) Assist the Client in preparation and distribution of the Initial Study and NOP. c) Assist the Client in project description preparation, location map, and list of probable environmental impacts of the project. 2) Draft Environmental Impact Report (EIR) a) Prepare an internal review draft of the documents for Client review and comment. b) Incorporate Client comments into the internal review draft EIR. c) Assist Client with identification of project alternatives for EIR purposes. d) Prepare digital file of draft EIR for posting on Client's web site, e) Provide document copies for distribution and public information requirements. 3) Public Review Comments Response a) Assist subconsultants in preparation of written responses to comments received during the draft EIR public review period. 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 potential adverse environmental effects of the project. b) Prepare digital file of the MMRP for Client web site posting. c) Provide document copies for distribution and public information requirements. 5) Final Environmental Impact Report(EIR) a) Prepare camera-ready copy of final EIR to include comments and responses and a summary of any changes made to the draft EIR. b) Prepare digital file of the final EIR for Client web site posting. c) Provide document copies for distribution and public information requirements. 6) Findings and Statement of Overriding Considerations (if applicable) a) Prepare Findings and Statement of Overriding Considerations. %) Public Meetings and Public Hearings a) Attend Team meetings pertinent to the completion of the EIR. b) Attend City Council Public Hearings as required for the adoption and presentation of the draft and final EIR. c) Attend scoping meeting if required. 8) Special Studies Coordination a) Assist Client with the procurement of subconsultants for the preparation of necessary special studies. b) Provide subconsultant coordination regarding scope and time of completion of special studies. EXHIBIT "B" SPECIAL REQUIREMENTS City hereby waives Section 5.3 as a requirement. City hereby waives Section 7.7 as a requirement. 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 FEE All Tasks Initial Study/NOP/Draft EIR/Responses/.......................$105,000 Mitigation Monitoring and Reporting Program/ Final EIR/Findings and Statement of Overriding Considerations/ Public Meetings/Public Hearings/Special Studies Coordination TOTAL —All Tasks............................................................................$105,000 The proposed fee would include all labor, materials and incidental expenses such as vehicle mileage, postage, toll calls, and CADD computer time. Not included are reproduction costs, title company charges, special mailing charges, application, and filing or permit fees. Non-contract services, if requested, would be charged hourly and include meetings, special data transfers or construction support services. Scheduling for the Work will commence upon receipt of a signed copy of this Contract Agreement and a deposit in the amount of $20,000, 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. The proposed Agreement, both Scope and Fee, contained herein, shall be valid until August 1, 2005. CITY OF PALM SPRINGS THE PALM CANYON ENVIRONMENTAL IMPACT REPORT(EIR) ID rckrv.me _Dd'.1.n Ssrc 11 n 3 Auourtzoos Ise emberzoos otloberzoos -Novemberzoo5 -Desern.add5 JJanuary20�6 _ Febrve 3oC6 IM. --7f1r / _7Q4 7MI W 9114 t21_&N-L 9L_9/11 9118 Bgs-IM-1N9_tIsis loon11a130115-it/13112�'"I'IT-1]M-1]111.11/iB 1]Rs11/1 1R V15 t/Z1 t29 ]/5yLt21H9 1 -Initial Study and Notice of Preparar6n +4 ass Mon aims--rnuenems- - City Review of Notice of Preparation ]days Fn WI9r65 man G Sn15 - ' NOP Review Period (4 Weeks) zea.i. T.d enwos inn 1"mm5° _- 4 Special Studies s5 day. man al/ss Fn ldllkn 5 -Draft EIR/(Includes Research) 71 dais an enms an alms; - s Deliver Screen Check to City +my 1.1.a In.I1.d - CityReviewScreenCheckDraft -- 14 ads.- was 11.5 -eeoo ttrze1115' ° Respond to City Comments t4 a.y. Tn.Ilrzsms In totems; ul 9 :Draft EIR&Notice of Completion Submitted +a.y man dvlsms rwbntvlsms in Public Review of Draft EIR(45 Days) 45 days Tae 1a 5 ma uuo - It Respond to Comments 14 ad. Fn arao. rno artemol rz 'Mitigation Monitoring Program 7day. Fn vmw Monamms' j3 City Council Certification of Final EIR 1 a.y wed alms w.a Tim I4 Notice of Determination Filed Iasy Fn anrss Fn ammo� PmmR m P.im c..,..r 31 os mk O Pmee. summ.n ^ Fahm.I T.aM [A Nadlm w o.2 .aerJms spra „ .. .............. .. 11re.tone PmleRsumm.n ed'ano MAnl.n. W Wed Nim5 MSAC.amto.6.I.[_m 1asz re�nramW d; ewvb lhn,,,—ad stall[oW¢ WOWa[M1rNttt.We[�tbsteYJvwle ma WI vll rv.h dwv.rt asb,11a[hinge The cssdtddant.5. .ol be ryw..a.' —h v.llv^'.1 xn.al.ao.In ,Dorm.w add.or moNoa.ow¢[3a,orfi d.—m s,or[uduml o .ara.m wAP.n, SF ' 2 MEMORANDUM TO: Planning Services FROM: t Kathie Hart, CIVIC k4 Chief Deputy City Clerk DATE: October 5, 2005 SUBJECT: MSA—A5123 cc: File Attached are two duplicate originals of the above referenced agreement and the purchase order. We have retained the original agreement in our office for our files. Please feel free to contact our office if there are any questions. /kdh Attachments: i CONTRACT ABSTRACT Contract MSA Consulting, Inc. Company Name: Michelle Witherspoon w/Marvin Roos consulting. Company Contact: Prepare Initial Study, EIR, MMRP, Public Mtgs, Special Studies Summary of Services: (Scope of Services spelled out in Exhibit "A") $105,000.00 Contract Price: G.H. Real Estate Development LLC - Developer Deposit Funding Source: for"The Palm Canyon" Case 5.1042-PD-311 /TTM 33514 and South Palm Canyon LLC, developer Contract Term: Until completion or one (1) year except as otherwise provided in Exhibit D -Schedule of Performance. Contract Administration Lead Department: Planning Services Contract Administrator: Edward Robertson, Principal Planner Contract Approvals Council/Community Redevelopment Agency Approval Date: June 29, 2005 Minute Order/ Resolution Number: 7694 Agreement No: A 5123 Contract Compliance Exhibits: A-Scope of Services, B-Special Requirements, C-Schedule of Compensation, D-Schedule of Performance Signatures: R.S. Smith, President, and M. Oehlbaum, CFO, (both notarized) Insurance: Certificate of Liability -Workers & Employers Comp and Professional Liability Bonds: N/A Contract prepared by: City Attorney Doug Holland Submitted on: By: einI I 1 1 PLANNING ■ CIVIL ENGINEERING ■ LAND SURVEYING zz � ID Letter of Tran '�- J Date: August 11,2005 Via: U.S. Mail �J Job#: 1783 To: Loretta Moffett, Senior Secretary CITY OF PALM SPRINGS Planning Services 3200 East Tahquitz Canyon Way Palm Springs, California 92262 From: Sandy Fox Re: Contract Services Agreement Project: The Palm Canyon EIR—City of Palm Springs Project#: 5.1042-PD-311 CC: ❑ Urgent ❑ For Review ❑ Please Comment ❑As Requested ❑ Other QTY. ITEM 3 ea Signed Agreements • Comments: Loretta:Three original copies of the above referenced Agreement for full execution and processing. Please contact me if you have any questions or comments. Thank you. RECEIVED AUG 16 2005 34200 BOB HOPE DRIVE ■ RANCHO MIRAGE ■ CALIFORNIA ■ 92270 760.320-9811 0 760.323-7893 fax ■ www.MSACONSULTINGINC.COM 7, PAIL Oi-,Ei, E F T,F Z�'I ,C,,P�T IDUCER TV US C,-,RTIFICATE_IS S$UEEO AS 4,TWAT Ell,OP INFORMATION ONLY AND CUB I-[:'RS MO REG E-ETS U PON;E-l E.CZ,17 N-9 CAT= echo tv:esa Insurance Agency MLM:Ll.THM CERTFMCAIXE_DIDES NOT A:V7EWD,EXMmD OR 10 Gillespie Way, Sl:llte 108 ALTEER T HE GOVDIRLLGE i-'IrFORDED BY THE POLICIES 217-LOW. Cajon CA 92020 lolne, 619-937-01641 raxJ 61.9-037-01,68 NNSUERIEERS LTCIPDEMG C-L INSURER B MSA Consilting Inc. INSURER C, Rancho %lxirag�� CA 92270 _u SEE D 34200 Bob llopc, Drive INS INSURER e -------------- WERAGES -HE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED-10 THE INSURED"AMED ABOVE FOR TI!L POLIO`.'PERIOD INDICATED NOT'Offl-ISTANDING TY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT Or,OTHER DOCUMENT WRH RPSPEC ITO WHICH THIS CERTIFICATE D14YBE ISSUED OR AAY PERTAIN.THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED!!ERE!N!S SUF,EC7 TO ALL THE TESTIS,EXCLUSIONS AND CONDITIONS OF SUCH IOLICIES AGGREGATE LINIDE SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS TCY BE RNDUr TYPE OF POLICY NUMBF! DATE(mimfo DATEINUBIODIVY) LIMITS GENERAL LIABILITY EACH OCCURRENCE 7 MIVAAGC�Ef=� COMMERCIAL GENERAL LIABu PRH�ISFS IF,,ry -_-T , _' C ,y CLAIMS MADE [] OCCUR hIED EKP(A, -7-- 1 PERSONAL 8 ADV INJURY S GENERALS-COMP/OP AGGREGATE S GENT AGGREGATE LIMIT APPLIES PER PRODUCT AGG T. ' J r"-POLICY _CT n LOC AUTOMOBILE LIABILITY C0FR3INFD SINGLE LITAIT (E.zccid.I; ANYAUTO ALL C�WNFO AUTOS BODILYINJon URY SELF HIRFDARFOS BODILY INJURY MION (Peraccidenl) S PROPER-,Y DAMAGE ANY AUTO EAACC S AUTO ONLY' AGG S OTHERTHAN I EXCESSIUMBRELLA HASH I FY EACH OCCURRENCE OCCUR f CLAIMS MADE AGGREGATE DEDUCTIBLERETENTION s S C A I I I WORKERS COMPENSATION AND TORV LIMI TS, ER EMPIDOYERTLIABILITY El EACH ACCIDENT �s Al%(PEJO]IRIETO�Pi�RT�IERIEXCCUIIVE EE DL 01�___�_ ___BE OFFICERiMP141BER EXCLUDED? -_' E ETLOY SPECIAL PROVISIONS below E L DISEASE-POLICY LIMC A 01, 0 2,/0 2./0 G E. CLAIM $2,000,000 FCC,,E�3 2 0 F 02/01/05 $2 000,000 G GA j%''F,L!2-1�31LTTY �l _T4 GT�E OF OPERATIONS I LOCATIONS I VENICLDS i EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROWSIONS _j, M 'L, - 1, -_-,� -D�, - -170 M C. TA S - OTr C2.0 -PD-3'J_ Tt P_'L sl� 12�R,77 '.. 1 1. 1� 10 L1,111,R' T.,C)T.Z _NQ)a\T-P201,72=-_'T p CA THE ExpiRAllom OA'LlUS'?2 SHOBLD AD'i OF THE ABOVE 5 RGETLED BEFORE DATE THEREOF,THE-ISSUING INSURER L',HLL ENDEAVOR 70 NAIL '.1,N DAYS WRITTEN CITY OF PAL Mr SPRINGS NOTICE TO T PF CeRTMBATH FOLDERNAIhED T 0 THE LEFT,BUT FAILURE TO DO SO SHALL YOR.E;TTA TOlorr-r-T-1 R&IPBZE SO OBLIGANON OR LIABILITY OF ANY K[HDUPDN THE INSURER,ITS AGENTS ON 0 BOX 2743 S)AL111 SP]MITCS CA 92'263 REPRESENTATIVES ACORD 25(2001MB) 0 ACORD CORPORATION'i 088 SEP 16 2005 11 : 09 RM FR HRH INSURANCE 760 360 4799 TO 93226360 P ,01i01 Client#:27594 2MSACONS ACORD- CERTIFICATE OF LIABILITY INSURANCE o"9Trisros°"Y"' PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION HRH of Coachella Valley ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Insurance Services LIC#0511209 HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, 77564 Country Club Dr.,f/401 Palm Desert,CA 92211 INSURERS AFFORDING COVERAGE NATO Y INSURED INauReRk, Preferred Employers Ins.Co. M$A Consulting,Inc. U200 Bob Hope Drive INSURER B: wsuREee; Rancho Mirage,CA 92270-0000 NSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FORTHE 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 AFFOROEO 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. L1R u TYPE OF INSURANCE POLICYNUMBFR PXY M DATE M�11�Do Y°N LIMNS GENERAL LIABILITY PACHOCCURRENCE $ COMMERCVW QENEFAL UABIDTV DAM GE ISETO $ CLAIMS MADE F-1OOOUR MED EXP Arty c,w Rorsonl S PERSIXIALF AOYINNLLY $ GENERALAGGREGATE S GEN'LAGGREQATELIMIT APKIES PERT PRODUCTS-COMP10P AGO S POUOY PROS LOC AUTOMOBILE LIABILITY COMBINED SINGLE UmT ANYAVTO (EA AcaE<M) S ALL OWN€D AUTOS BODILY INJURY 80HEDULFD AUTOS (Fw orrsce) S HIREDAUTOS BODILY INJURY NONOWNEDAUrOS (Pw ucadwi) S (PPROFEBTv OAMAGE S GARAGE LIABILITY AUTO ONLY,EAACGDENT S MY AUTO ON0111 THAN EA 0 $ AUTO ONLY.- ASS S EKCESSNMBRELLA LU0LRY EACMOCCURRENCE S OCCUR 0 OWLIOMADE AGGREGATE S S DEDUORBLE S RETENTION S S A WORMERS COMPENSATIONAND WKN1122934 09101/05 OS/01106 X W°srA WM DTH. EMPLOYERS'LMBLRY ANY FROPRIETOWPARTNFAfEXECUTNE E,L,EACN AcpDENY S1,000,000 OFFICEWMEMSER EXCLUDED] E.LO[SEkSE-EAEIAPU0Ye $1,000,000 UY�s,a ;b.M,ae, SPECIAL PROMS below EL DISEASE•POLICY LIMIT 61,000,000 OTHER DESCR11"TR1Nl OF OPERATION"LOCATIONS IVENICIES I EXCLUSIONS ADDED BY ENDORSEMENT SPECUJL PROVISIONS 10 Day Notice for Non-Payment of Premium Evidence of Insurance FAX.,3224360 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESONNED POLIOIEe BB 0"CELLE0 OBPORE THE EXPIRATION City of Palm Springs DATE THEREOF,THE ISSUNOINSUPMWLL ENDEAVOR TO MAIL 10 DAYS WRfMN P.O.Box2743 NOTICE TO THIS COAVIMATE HOLDER NAMED TOWELEFT,OUT!` a KeTD00UPMALL Palm Springs,CA 92233 IMPOSE NO OBLIGATNN OR LWBLLRY OF ANY KIND UPON THE INSURER.ITS AGENTS OR REPREaeurwnvsa. AUTHORLEDREYRESENTATIVE ACORD 21;(2001/08)1 of 1 M00742IM198900 2AISB ®ACORD CORPORATION 1988 LICENSE#0511289 ** TOTAL PAGE.01 HIS IS NOT A FURCHAsE ORDER GNP 10 9EQ, T1111 I Bbo"? 11 9 ch us ;,M M, ,Umpi u 3 3 3 9 7 T Do NOT "I no 03 mmm in ,wa! a! a , 1- pp, ORDER CrIcy A Yon Wo,-! 1 e Yv L.0 e A FE MUFF' a—PDT -3- i 1 7r 3 3 10 J � ;__�r7-r- +__�`Ph-a-��t.e.,�-�.�����t,��1- � z,fP2, - - �!�0�;�°� ,y�-- F JIM Mat j - _ --- - -- - - - L-1 I Aw� f t Fy C,cl 0 6-0 0 E' ll i _j o p2< OWN HEAD Dan EST HEAL' 1011- D 1, MSA Consulting, Inc. Study EIR, MMRP Special Studies AGREEMENT #A5123 MO 7694 6-29-05 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR ENVIRONMENTAL SERVICES (The Palm Canyon Project) THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 1 st day of August, 2005, by and betweer. A6 CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and MSALksse }+ales, Inc., (herein "Contractor"). (The term Contractor includes professionals performing in-Yconsulting 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 tic) 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 bythis 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. ORIGINAL SIP AND/OR AGREEMENT